State Consumer Disputes Redressal Commission
Dr. Praksh Asthana vs Smt. Geeta Yadav on 23 February, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/1502/2018 ( Date of Filing : 20 Aug 2018 ) (Arisen out of Order Dated 24/07/2018 in Case No. C/563/2004 of District Lucknow-II) 1. Ahuja Hospital Lucknow ...........Appellant(s) Versus 1. Smt. Geeta Yadav Lucknow ...........Respondent(s) First Appeal No. A/1538/2018 ( Date of Filing : 23 Aug 2018 ) (Arisen out of Order Dated 24/07/2018 in Case No. C/563/2004 of District Lucknow-II) 1. Dr. Praksh Asthana S/O Shri Suraj Bahadur Asthana R/O 3/265 Vivek Khand Gomti Nagar Lucknow ...........Appellant(s) Versus 1. Smt. Geeta Yadav W/O Sri Dileep Singh R/O 2/814 Vivek Kand Gomti Nagar Lucknow ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 23 Feb 2023 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Appeal No. 1502 of 2018 Ahuja Hospital through Dr. P. K. Ahuja, MD, Ahuja Hospital, 4/488, Vivek Khand, Gomti Nagar, Lucknow. (Now Deceased died on 5.1.2021) 1/1 Dr. Sanjev Ahuja s/o Late Dr. P.K. Ahuja, R/o 4/488, Vivek Khand, Gomti Nagar, Lucknow. 1/2 Dr. Mayuri Ahuja d/o Late Dr. P.K. Ahuja, R/o A3/1312, Tower II, Purvanchal Royal City, Sec. Chi-5, Greator Noida, U.P.-201308 1/3 Mrs. Pallavi Ahuja d/o Late Dr. P.K. Ahuja, R/o 1103, Tower 3,Emeraid Isle, Saki Vihar Road, Powai, Mumbai, Maharastri-400072 ...Appellants. Versus 1- Smt. Geeta Yadav w/o Shri Dileep Singh, R/o 2/814, Vivek Khand, Gomtinaghar, Lucknow (Now Deceased) 1/1 Dileep Sing, R/o 2/814, Vivek Khand, Gomtinaghar, Lucknow. 2- Oriental Insurance Company Limited through Branch Manager, 39, B.N. Verma Road, Quaiserbagh, Lucknow. 3- Dr. Smt. Kanchan Ahuja w/o Dr. P.K. Ahuja, R/o 4/488, Vivek Khand, Gomti Nagar, Lucknow. 4- Dr. Prakash Asthana, 3/265, Vivek Khand, Gomti Nagar, Lucknow. ...Respondents. AND Appeal No. 1538 of 2018 Dr. Prakash Asthana, aged about 73 years. s/o Shri Suraj Bahadur Asthana, R/o 3/265, Vivek Khand, Gomti Nagar, Lucknow. ...Appellant. Versus 1- Smt. Geeta Yadav w/o Shri Dileep Singh, R/o 2/814, Vivek Khand, Gomtinaghar, Lucknow (Now Deceased) 1/1 Dileep Sing s/o Ram Singh, R/o Nizampur, Mallahaur, Chinhat, Lucknow. 2- Ahuja Hospital through Dr. P. K. Ahuja, MD, Ahuja Hospital, 4/488, Vivek Khand, Gomti Nagar, Lucknow. (Now Deceased died on 5.1.2021) 2/1 Dr. Sanjev Ahuja s/o Late Dr. P.K. Ahuja, R/o 4/488, Vivek Khand, Gomti Nagar, Lucknow. 2/2 Dr. Mayuri Ahuja d/o Late Dr. P.K. Ahuja, R/o A3/1312, Tower II, Purvanchal Royal City, Sec. Chi-5, Greator Noida, U.P.-201308 2/3 Mrs. Pallavi Ahuja d/o Late Dr. P.K. Ahuja, R/o 1103, Tower 3,Emeraid Isle, Saki Vihar Road, Powai, Mumbai, Maharastri-400072 3- Oriental Insurance Company Limited through Branch Manager, 39, B.N. Verma Road, Quaiserbagh, Lucknow. 4- Dr. Kanchan Ahuja w/o Dr. P.K. Ahuja, R/o 4/488, Vivek Khand, Gomti Nagar, Lucknow. ...Respondents. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri Gandharv Gaur, Advocate for the appellant Ahuja Hospital. Sri Prateek Saxena, Advocate for Respondent no.1/complainant. Sri Vaibhav Raj, Advocate for Respondent no.2/Oriental Ins. Co. Sri Saurav Singh, Advocate for Respondent no.3/Dr. Kanchan Ahuja. Sri Adnan Ahmad, Advocate for Respondent no.4/Dr. Prakash Asthana. Date 24.3.2023 JUDGMENT
Per Sri Rajendra Singh, Presiding Member- The above appeals are connected with one another arising out from one common judgment, hence these are being decided together.
Both these appeals are filed under section 15 of the Consumer Protection Act 1986 against order dated 24 July 2018 of District Consumer disputes Redressal Forum-II, District, Lucknow in the complaint case no.563 of 2004, Smt Geeta Devi Vs. Dr P K Ahuja MD, Ahuja hospitals and Ors.
The brief facts of the appeal no.1502 of 2018 are that, that the appellant did not charge any fees or expenses at the services were provided to complainant opposite party no.1 free of cost, being under charity drive by the then Ahuja Nursing Home which was changed to surgical and maternity Centre in 2004, now known as Ahuja Hospital, therefore complaint/respondent-1 does not fall within the category of consumer as defined under the Act. The complainant/respondent - 1 in order to bring himself within the purview of consumer has wrongly stated that the complainant/respondent- 1 had paid the money to Ahuja hospital whereas the true fact is that the said surgery was performed under charity by the Ahuja Hospital, that is why the complainant OP - 1 had failed to produce any money receipts and thereby simply said that the money receipts were not given by the appellant. In normal course due bills and receipts were/are regularly given by the hospital to each and every patient. The findings of the learned Forum as far as negligence is concerned is perverse and against the evidence on record, as the finding of forum is also not based on any expert opinion, which is a mandatory requirement before holding the medical negligence of a doctor/s /hospitals/nursing homes. The precedent in this regard have already been set up by the Hon'ble Supreme Court in catena of judgments.
According to Charlesworth and Percy on Negligence (10th addition 2001), in current forensic speech, negligence has three meanings. They are; (i) a state of mind, in which it is opposed to intention, (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings.
The order of the learned Forum is based on surmises, conjectures and assumptions only, therefore such order is bad in the eyes of law and as such the order passed by the forum which is now under challenge through this appeal deserves to be quashed. The entire management of appellant was/is well equipped with all sorts of facilities for which patients are admitted. Each and every procedure/surgery, including that of OP no.1 was/is being performed in this Hospital by the expert and qualified team of doctors, innumerable number of operations have been successfully performed by a team of specialist doctors of the appellant and they discharged the functions efficiently and effectively. The team of doctors namely Dr Sarita Chandra MS, gynaecologist, Dr Prakash Asthana MD, Anaesthesia and Dr Prashant Arora MD, Paediatrician performed the said operation and subsequent management, are well qualified, experienced and expert in their area of medical field. So in this case no negligence had been committed by the appellant because the surgery was performed/supervised by the qualified and expert team of doctors as the Hospital have/had a qualified and expert team of doctors.
The degree of negligence strictly requires being a gross and that neither it can be transformed negligence of a lesser degree into gross negligence merely by giving it that appellation. There is a different in kind between the negligence which gives the right to compensation and the negligence which is a crime. The Learned Forum has failed to appreciate that a medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither every highest nor a very low degree of care and competence just enough in the light of the particular circumstances of each case is what the law requires. All professional doctors can make errors of judgment and if they are penalised and punished for this no doctor can practice this vocation and equanimity. Indiscriminate proceedings and decisions against doctor are counter-productive and serve society no good. The factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence.
The learned Forum has failed to appreciate that the negligence by professionals in the law of negligence, such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only in the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is what the entire person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings-either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.
The learned Forum has failed to appreciate that the team of doctors engaged by the appellant had brought their task a reasonable and very highest degree of skill and knowledge, and had exercised a reasonable and very highest degree of care. The doctor is not evident if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. The learned Forum has failed to appreciate that the medical practitioner cannot be held liable simply because things went different by mischance are misadventure. A medical practitioner/hospital would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. The learned Forum has failed to appreciate that it was not a negligence but fairly a complication precipitated after surgery and delivery of a child due to some information which were not informed by the patient and/or by the attendants. The said complication arose especially when the patient had come out from the effect of anaesthesia. The patient was earnestly attended and managed in the given situation by a team of expert and qualified doctors and with the proper monitoring/medication and by rigourous vigil and watch got the patient revived and survived and on the very next day when the patient needed a ventilator which was available at SGPGI in the fully equipped ambulance with oxygen, accompanying with the qualified doctor who got the patient admitted and ensure that the patient is placed in SGPGI and that too on ventilator which was required.
The learned Forum has failed to appreciate that the medical professional should not be unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioner at times also have to be saved from such a class of complaint who use complaint process as a tool for pressurising the medical professional/hospital particularly private hospitals are clinics for extracting uncalled for compensation. Such Malicious proceedings deserve to be discarded against the medical practitioners and therefore the medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competency and in the interest and welfare of the patient have to be paramount for the medical professionals. The learned Forum has failed to appreciate that the negligence is the breach of duty caused by the omission to do something which a reasonable doctor, guided by those considerations which ordinarily regulate the conduct of professional officers would do, or doing something which a prudent and reasonable doctor would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards the person to whom the doctor owes the duty of observing ordinary care and skill, by which neglect the patient has suffered the injury. The complainant OP-1 has failed to prove that the gross negligence action amounting to recklessness and carelessness on the part of the doctor/doctors of the Hospital authority/Management due to which the complainant OP - 1 had suffered injury. The complainant opposite party - 1 has miserably failed to prove non-exercise of reasonable care and professional skills required for treatment/operation of the complainant opposite party - 1 by skilled and qualified doctors. The complainant OP no. 1 has not been able to prove gross negligence and deficiency of service of the appellant and opposite party no.4 to fasten the liability and to compensate for the injury sustained to the complainant OP - 1. It was the duty of two through that when, where and at what time the alleged medical negligence had occurred. The doctors at Ahuja Nursing Home had not committed any negligence in this particular case whatsoever or ever committed any gross medical negligence in the light of above submissions.
The learned Forum has wrongly assured that twice anaesthesia doses were administered to the patient whereas a single dose of anaesthesia was given by the OP - just before the said surgery which is clearly mentioned in the bed head ticket of the appellant hospital. On the contrary the complainant OP - 1 has not been able to bring any material/evidence on record to prove/establish that the excessive anaesthesia dose was administered. The learned Forum has failed to appreciate that the negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional. Those precautions were taken which the experience of doctors has found to be sufficient. So also, the standard of care, while assessing the procedure as adopted. In the complainant OP - 1 has not been favourably responded to the treatment given by the appellant hospital and OP no. 4 or the team of doctors, surgery which was successful with the delivery of male child, the appellant and OP - 4 cannot be held straight way liable for medical negligence by applying the doctrine of Res Ipsa Loquitur. What is to be seen is that the doctors concerned give the treatment was strictly within the medical ethics and there was no negligence in the matter of treatment management and conducting of the operation.
The learned Forum has failed to peruse that the entire cases right from inception which has already been placed on record before the learned District Forum, long way goes to show that the entire management, treatment and care of the complainant OP - 1 had been perfectly done and the same was regulated by way of monitoring in the various parameters in surgery, including the anaesthesia administered by OP - 4 with appropriate doses of medicines and other measures to regulate the complainant OP - 1. It is pertinent to mention here that the appellant as well as hospital was duty-bound to follow all the medical parameters as per medical ethics and also because of insurance cover duly taken from - 2. The OP - 2 in their written statement had specifically contended in an unequivocal terms, the difference as asserted by the appellant. The learned Forum has ignored this vital fact that the claim petition was bad due to non-joinder of necessary parties namely Dr Sarita Chandra MS who had actually operated the patient and Dr. Prashant Arora MD paediatrician who were present in the operation theatre while the surgery was being performed. The learned District Forum has ignored another vital factor that the claim petition was bad due to miss joinder of parties namely Dr. Kanchan Ojha DGO as OP - 3, who had not operated the patient at all.
The learned Forum has failed to appreciate that the mere deviation from normal professional practice is not necessarily evidence of negligence. At times, the profession is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. This causes more appropriate to follow, would depend on the facts and circumstances of the given case. As per usual practice hospital had often the consent of the patient before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date. The learned the forum has failed to appreciate that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Therefore in view of the above-mentioned grounds it is imperative in the interest of justice that this Hon'ble Commission may be pleased to set aside the impugned order dated24.07.2018 passed by the learned Forum -II , Lucknow.
The opposite party - 1 has submitted his objection against this appeal and stated that the appellant's institution has treated the patient and due to their negligence the complainant has become a living dead body. No evidence has been given by the appellant that he treated the patient without taking a penny from her. The opposite party was being treated regularly by the appellant hospital and advanced money was deposited is time for the medicines and bed. They promised to give the receipt at the time of discharge. If it was a charitable trust, where the money comes from the construction of the hospital and for paying the salary of the doctors and paramedical staff? The negligence done by the appellant do not need any expert evidence. The Hon'ble Supreme Court has held that in each and every case there is no need of expert opinion. She was being treated by the well renowned doctors of the SGPGI namely Dr Mazhar Hussain , Dr Ravi Dev , Dr Kar , Dr RK Thukral Dr DK Mazumdar et cetera and even after their treatment she did not get any relief. The appellant has admitted that the complainant was operated in the hospital but they cleverly remove the name of Dr Kanchan Ahuja while whole of the treatment was done by Dr Kanchan Ahuja . The complaint was never visited Dr Sarita Chandra nor she ever examined her. Opposite party - 3 Dr Kanchan Ahuja has given the vaccination to the complainant but the opposite party concealing her name because at the time of operation she was in the government service at Barabanki . The prescription written by Dr Kanchan Ahuja has been filed before the learned District Forum by the complainant.
Due to negligence of the appellant, the complaint reached at the verge of death. After giving assurance to the complainant for proper treatment, the concerned Dr was out at the time of delivery and she came in hurry and operated the complainant and after so many request by the complainant's family she was not referred to higher Institute. It is not according to medical protocol. The complainant did not come in general condition of that operation. The appellant has accepted that complaint was referred to SGPGI for ventilator support. The ambulance was arranged by the complainant and paid by the complaint. After operation when the complainant did not return in senses, the complainant's husband enquired from the doctor about the complaint because the newly born baby wants mothers milk, then he was told that due to excess amount of anaesthesia she will take some time to recover and thereafter she will feed the child. The complainant is not normal even today. Dr Kanchan Ahuja was in Barabanki and before her arrival at Lucknow, anaesthesia was given to the complainant, and when of the operation the complainant did not recover from the effect of anaesthesia, the appellant did not take any step to send her to some higher Institute. It shows the negligence of the appellant and their staff. It was the duty of the appellant to refer her to some higherinstitution immediately if he was unable to tackle the situation. The operation was performed by Dr Kanchan Ahuja and the complainant's husband has asserted this fact and complainant was under the treatment of Dr Kanchan Ahuja from the very beginning. The complainant was admitted there on the name ofDr Kanchan Ahuja and not Dr Sarita Chandra . The complaint never came in contact toDr Sarita Chandra. All the procedures were done under Dr Kanchan Ahuja. There was no need to make Dr Sarita Chandra is a party because she never treated the complainant. A doctor who treats the patient from the very beginning cannot hand over her case to another doctor at the end of the procedure. Therefore the grounds of appeal are not tenable and the appeal is liable to dismissed.
In appeal number 1538 / 2018, the appellant Dr Prakash Asthana has stated that the complainant/respondent - 1 was pregnant and as such she approached the opposite party on 17 December 2003 at Ahuja Nursing Home, Gomti Nagar, Lucknow where check up was done and an antenatal booking card was issued. The doctor advised the complainant to visit again on 19.01.2004 and on 17.12.2003 certain pathology tests were also advised by the doctor which were done at Kohli pathology and were found to be normal. It was further alleged that on 09.03.2004 the complainant was admitted at the Ahuja Nursing Home due to labour pain. The complainant alleged that on 10.03.2004 at 4 PM, the opposite party informed the complainant that the delivery would be cesarean and it was further alleged that thereafter the doctor went to Barabanki and came back only at 9 PM when the labour pain was intensified and she was informed by the staff of the nursing home on telephone. The doctor straight way on arrival attended the operation theatre and gave anaesthesia to the complainant prior to the operation and a male child was born on 10.03.2004 at 9:15 PM. The complainant alleged that the anaesthesia administered to the complainant was over dose as such she remained unconscious and was referred to SGPGI Lucknow on 11.03.2004 at 10:19 AM. It is further alleged that due to over dose of anaesthesia the brain of the complainant was damaged which resulted in paralytic attack. It is further alleged that complainant has been discharged from SGPGI on 15.04.2014 though the life was saved but was not recovered fully and it was further alleged that expenses of about Rs.4 lakhs were incurred on medical treatment , due to the negligence of the opposite party. These allegations are general in nature and no specific allegation regarding medical negligence or deficiency in service has been made by the complainant.
The complainant filed a complaint on 03.08.2004 in which only Dr P K Ahuja MD, Ahuja Hospital, Gomti Nagar Lucknow was arrayed as opposite party, but on an preliminary objection being raised By the Learned District Consumer Forum, Lucknow vide order dated 03.04.2006, directed the complainant to implead the insurance company thereafter the insurance company was impleaded as opposite party - 2 and on 25.09.2006 notices were issued to the insurance company. The opposite party no.1 has filed objection on 24.02.2005. Thereafter the party filed their written statement and later on the complainant filed an application to implead opposite party - 3. The application has been moved after 11 years without explaining any delay and as such the amendment application was barred by time but the same was allowed and the present appellant was impeded as opposite party - 4. Thereafter the learned Forum passed the impugned judgment.
In the impugned judgment and order dated 24.07.2018 is illegal, invalid and against the settled principles of law and the appellant was not provided reasonable opportunity of being heard. There are allegations that due to excessive dose of anaesthesia the complainant suffered physical disability but there is no evidence regarding it. It is also relevant to mention here that Dr Sarita Chandra conducted the cesarean delivery of the complainant. There is no evidence to prove that the condition of the patient was deteriorated due to negligence of the appellant or due to over dose of anaesthesia administered by the appellant. The allegation regarding access anaesthesia is totally baseless because in severe cases spinal anaesthesia is administered which is only local anaesthesia by which the lower abdomen becomes painless and motionless and the person do not get unconscious. It is relevant to mention that in the complaint it was nowhere said that the anaesthesia was given twice at 7 PM and then second dose of anaesthesia at 9 PM. It is only an afterthought. The appellant has never administered any dose of anaesthesia to the respondent - as alleged by the complainant/respondent - 1. The present appellant is not an employee of the Ahuja Hospital but only a doctor who visits the hospital on call. The present complaint does not fall within the ambit of the definition of the consumer, as there is no relationship between the complainant and the appellant. And the most, the complainant can be the consumer of the Ahuja Hospital , but it is also relevant to mention here that for the treatment of the complainant theAhuja Hospital has not charged any amount. In the instant case there is nothing in the complaint to show that the services of the appellant were taken for consideration.
Since there is no evidence on record to prove any negligence and only bald statement would not make the appellant responsible for negligence and for proving any such negligence there are disputed questions of fact which cannot be decided by the District Consumer Dispute Redressal Forum, Lucknow and for that the claimant should have approached the Civil Court. Since it was a case of alleged medical negligence that with regard to allegations regarding excessive dose of anaesthesia as such it could not have been decided without an expert opinion from a person having ample knowledge in the field, but no such evidence was produced which could prove the negligence of the appellant, as the Complainant ought to have been rejected and the judgment and order passed by the District Consumer Disputes Redressal Forum, is illegal and without jurisdiction. The male child was born after the alleged allegation of excess dose of anaesthesia was healthy and normal which itself proves that there was no negligence on the part of the present appellant. Perhaps Dr Ahuja colluded with the claimant/respondent - 1 and thereafter the application for making the appellant as party to the complaint case was filed. There is no evidence to prove that due to his negligence the complainant alleged he suffered permanent disability. The complainant could not prove the alleged medical negligence. The respondent failed to prove that Rs.4 lakhs were spent in her treatment.
The impugned judgment and order is without the application of judicial mind and the illegal, arbitrary and against the evidence available on record. There is manifest error of law and the judgment and order dated 24.07.2018. The male child born after the alleged administration of excess dose of anaesthesia was healthy and normal which itself proves that there was no negligence on the part of the present appellant. No evidence was produced which could prove the negligence of the appellant, as such the complaint ought to have been rejected. The allegation regarding access anaesthesia are totally baseless because in the cesarean cases spinal anaesthesia is administered which is only local anaesthesia. Therefore it is most respectfully and submissively prayed that this Hon'ble commission may kindly be pleased to allow the present appeal and set aside the judgment and order dated 24.07.2018.
The respondent - 1 has submitted his objection against this appeal. It is stated by the respondent - 1 that he did not enter into any marriage before the death of Smt Geeta Yadav. This reply has been filed against an objection submitted by appellant. The respondent - 1 also filed his argument in this case.
We have heard the learned counsel for the appellant/Ahuja Hospital Sri Gandharv Gaur, ld. counsel for the respondent no.1/complainant Sri Prateek Saxena, ld. counsel for the respondent no.2/Oriental Ins. Co. Sri Vaibhav Raj, ld. counsel for the respondent no.3/Dr. Kanchan Ahuja, Sri Saurav Singh, ld. counsel for the respondent no.4/Dr. Prakash Asthana, Sri Adnan Ahmad. We have perused all the pleadings, evidences, documents on record.
We have seen the impugned judgment of learned District Forum.
First we caught the order of the learned District Forum which is as follows:
"परिवादिनी का परिवाद स्वीकार किया जाता है। विपक्षीगण सं0 1 व 4 को संयुक्त एवं एकल रूप में आदेशित किया जाता है कि वह इस निर्णय की तिथि से चार सप्ताह के अंदर परिवादिनी को रू0 दस लाख मय 9 (नौ) प्रतिशत साधारण वार्षिक ब्याज की दर के साथ मानसिक व शारीरिक कष्ट हेतु वाद दायर करने की तिथि से वास्तविक भुगतान की तिथि तक अदा करें। इसके अतिरिक्त विपक्षीगण रू0 दस हजार वाद व्यय अदा करें। ऐसा न करने की दशा में विपक्षी को उक्त धनराशियों पर उक्त तिथि से ता अदायगी तक 12 (बारह) प्रतिशत साधारण वार्षिक ब्याज की दर के साथ देय होगा।"
Before dealing with the merits of the case it is important to highlight an article regarding doctor and patient relationship and further the oath taken by the doctor when they enter into this noble profession.
First of all we have to see the doctor - patient relationship (DPR). This relationship is very important for all types of treatment of a patient by a doctor.
"Medicine is an art whose magic and creative ability have long been recognized as residing in the interpersonal aspects of patient-physician relationship."
Hall et al., 1981 A doctor-patient relationship (DPR) is considered to be the core element in the ethical principles of medicine. DPR is usually developed when a physician tends to a patient's medical needs via check-up, diagnosis, and treatment in an agreeable manner. Due to the relationship, the doctor owes a responsibility to the patient to proceed toward the ailment or conclude the relationship successfully. In particular, it is essential that primary care physicians develop a satisfactory DPR in order to deliver prime health care to patients.
The physician-patient relationship is a foundation of clinical care. Physician-patient relationships can have profound positive and negative implications on clinical care. Ultimately, the overarching goal of the physician-patient relationship is to improve patient health outcomes and their medical care. Stronger physician-patient relationships are correlated with improved patient outcomes. As the relationship between physicians and patients becomes more important, it is essential to understand the factors that influence this relationship.
Frameworks for Physician-Patient Relationships Throughout history there has been much debate regarding the "ideal" physician-patient relationship. In 1992, Ezekiel and Linda Emanuel proposed four models for the physician-patient relationship: the paternalistic model, the interpretive model, the deliberative model, and the informative model. These models differ based on their understanding of four key principles: the goals of physician-patient interactions, the physician's obligations, the role of patient values, and the concept of patient autonomy.
Factors that Influence the Physician-Patient Relationship Although there are several factors that influence physician-patient relationships, the dynamic shared and sense of trust between physicians and patients are two critical components to their overall relationship.
Dynamic Between Physicians and Patients The dynamic between physicians and patients refers to the communication patterns and the extent to which decision making is shared between both parties. Effective physician-patient communication is an integral part of clinical practice and serves as the keystone of physician-patient relationships. Studies have shown the approach taken by physicians to communicate information is equally important as the actual information that is being communicated. This type of communication incorporates both verbal and nonverbal interactionsbetween physicians and patients.iEffective communication has been shown to influence a wide array of outcomesincluding: emotional health, symptoms resolution, function, pain control, and physiologic measures such as blood pressure levels. When miscommunication occurs, it can have severe negative implications in clinical caresuch as impeding patient understanding, expectations of treatment, treatment planning, decreasing patient satisfaction of medical care, and reducing levels of patient hopefulness.
In addition to having effective communication, it is important that medical decisions stem from a collaborative process between physicians and patients. Decision makingis a process in which patients should be involved from the very beginning, and the result is a decision which reflects the physician's medical knowledge as well as the patient's values and beliefs.ivCollaborative communication and decision making have been correlated with greater patient satisfaction and loyalty. Working from a collaborative framework along with effective physician-patient communication can also strengthen a physician's ability to utilize a personalized health care model through patient empowerment.v Trust Between Physician and Patients "....'patients must be able to trust doctors with their lives and health,' and that maintaining trust is one core guidance for physicians..."
Birkhäuer et al, 2017 Trust is a fundamental characteristic of the physician-patient relationship. Patients must trust that their physicians will work in their best interests to achieve optimal health outcomes. Patients' trust in their physicians has been demonstrated to be more important than treatment satisfactionin predictions of patient adherence to recommendations and their overall satisfaction with care.iStudies have also shown that trust is additionally a strong predictor of a patient continuing with their provider.iiTrust extends to many different aspects of the physician-relationships including, but not limited to: physicians' willingness to listen to patients, patients' believing that physicians value patient autonomy and ability to make informed decisions, and patients feeling comfortable enough to express and engage in dialogue related to their health concerns.
Physician-Patient Relationships Influence on the Future of Healthcare The idea of viewing physician-patient relationships as a core element of quality health care is not something new, however understanding and assessing the factors that influence this relationship is just beginning. Effective physician-patient communication has been shown to positively influence health outcomes by increasing patient satisfaction, leading to greater patient understanding of health problems and treatments available, contributing to better adherence to treatment plans, and providing support and reassurance to patients. Collaborative decision making enables physicians and patients to work as partners in order to achieve a mutual health goal. Trust within all areas of the physician-patient relationship is a critical factor that influences communication between both parties. As health care transforms into a more personalized and patient-centered model, the physician-patient relationship will significantly shape health outcomes. The personalized health care model encourages collaboration among physicians and patients in order to create shared health goals and the cultivation of a health plan to address identified problems. By understanding the factors that influence patient-physician relationships, in the future, health care providers will be able to address some of the barriers that prevent the adoption of more personalized approaches to health care.
Now let us see the oath taken be a doctor before entering the nobel profession of the Medical World. The tradition in medical school includes taking the Hippocratic Oath usually at graduation. The purpose of this review is to examine what that oath has been, what forms it currently has, and the implications for physicians in today's healthcare environment. The changes in health economics affect physicians as they try to follow the oath's allegiance to the individual patient's needs. At times, this goal conflicts with the perspective of the financial world's controls of insurance companies and medical groups and institutions. This difference of the physicians' ethical perspectives from the business leaders regarding the philosophy of the value of the individual's health and life may be related to some aspect of physician burnout.
Many populations in the world know of the Hippocratic Oath for physicians as they begin the journey to care for patients. In this current era of medicine the frequency of students' taking the oath has increased to nearly every one compared to the early twentieth century; however, few medical students and physicians actually know that the translations of the ancient words have become less complete, as well as quite varied from the classical translations. With more and more medical students taking an oath, the content actually has been simultaneously thinned. Certainly, the part addressed to faith in the Greek deities, in whom the ancient physicians believed, does not exactly apply for different locations and religions. It does honor the history of medicine and the bond with principles of the selfless tradition of healing. Now the act of saying the oath with peers has been viewed as a process of getting the diploma from medical school rather than a devoted allegiance to the purpose of medical education, namely, the best care of each patient by a competent physician. A true physician focuses his or her care of each patient not only on the use of skilful and current techniques but also on the recognition of the unique needs and welfare of the patient. This professional devotion of the compassionate physician to the patient may be eroded as the concept of the oath faces challenges from the increasing demands and restrictions by corporate entities. The years of education and training lead to the agreement with a code of ethics in medicine that emphasizes behavior to earn the trust of patients. Some of the burnout of physicians may indicate the loss of autonomy and the need to free physicians to return to the core content of the oath, i.e., to uphold the highest standards of care for the safety and health of each patient.
As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
Whether this oath has been complied with properly by the doctor. We know that the human body is a very complex body. The doctor spent years to study the course of MBBS/MD/MS and any other specialised fields . Despite of all the facts they should be cautious during treatment of a patient because it is the patient who paid them for their livelihood. It is the utmost and noble duty of a doctor to adhere with the oath taken by him.
So it is very important to maintain trust between the patient and the concerned Doctor. The doctors should also adhere to their oath taken by them when entering into this noble profession. In the present case when the complainant for the first time contacted the appellant or his/her hospital's doctors on 17.12.2003 , she was given antenatal booking card and asked her to come on 19 January 2004. On 9 March 2004, after starting of the labour pain, the complainant was admitted to the nursing home of the opposite parties. On 10 March 2004 at about 4 PM, the appellant informed about cesarean delivery. The concerned Dr went to Barabanki to see some of the patient. Again the labour pain started at 9 PM and the nurse on duty in form of the doctor on telephone. The doctor came and went straight in operation theatre and perform the operation after giving anaesthesia and the baby was born at 9:15 PM. The complainants case is that, that the cesarean operation was performed by Dr Kanchan Ahuja but on the other side it is being said that the said operation was performed by Dr Sarita Chandra . The complainant has very specifically stated that from the very beginning till the delivery she was managed byDr Kanchan Ahuja so it is not possible that at last the cesarean operation be performed by some other Dr because whenever any doctor takes any case in her hand it is her duty to take care of the patient till end. Is there any enmity between complainant andDr Kanchan Ahuja? No such evidence has been put forward by the appellant therefore it cannot be believed that a doctor who is treating her patient from the very beginning may give up at the last stage. The appellant has not filed the list of panel of doctors and their duties. At present one can see the board of the Ahuja Hospital on which doctor's name , their ability and their respective branch has been mentioned.
On this board there is name of the doctor, their specialised branch and their availability. We do not find the name of alleged Dr Sarita Chandra. She may have left the hospital but no information has been given by the appellant that where she is at present. So from all the facts and evidences submitted by the complainant it cannot be believed in any way that Dr Kanchan Ahuja did not operate the patient.
Before going further we have to see the consent form on which it is alleged that consent has been given by the husband of the patient. Whether this consent form is as per rules or in accordance the guidelines. It will be better to scan the consent form available on the record of this case so that we can see and judge whether this consent form is a valid one or not.
Consent and the Indian medical practitioner Consent is a legal requirement of medical practice and not a procedural formality. Getting a mere signature on a form is no consent. If a patient is rushed into signing consent, without giving sufficient information, the consent may be invalid, despite the signature. Often medical professionals either ignore or are ignorant of the requirements of a valid consent and its legal implications. Instances where either consent was not taken or when an invalid consent was obtained have been a subject matter of judicial scrutiny in several medical malpractice cases. This article highlights the essential principles of consent and the Indian law related to it along with some citations, so that medical practitioners are not only able to safeguard themselves against litigations and unnecessary harassment but can act rightfully.
INTRODUCTION Legally, two or more persons are said to consent when they agree upon the same thing in the same sense.[1] Consent must be obtained prior to conducting any medical procedure on a patient. It may be expressed or implied by patient's demeanour. A patient who comes to a doctor for treatment implies that he is agreeable to general physical (not intimate) examination.[2] Express consent (verbal/written) is specifically stated by the patient. Express verbal consent may be obtained for relatively minor examinations or procedures, in the presence of a witness.[3] Express written consent must be obtained for all major diagnostic, anaesthesia and surgical procedures as it is the most undisputable form of consent.
ESSENTIAL PRINCIPLES OF A VALID CONSENT AND THE INDIAN LAW A doctor must take the consent of the patient before commencing a treatment/procedure except in emergencies, informed consent should be obtained sometime prior to the procedure so that the patient does not feel pressurised or rushed to sign. On the day of surgery, the patient may be under extreme mental stress or under influence of pre-medicant drugs which may hamper his decision-making ability. Consent remains valid for an indefinite period, provided there is no change in patient condition or proposed intervention.[4] It should be confirmed at the time of surgery.[4] Consent must be taken from the patient himself.
The doctor before performing any procedure must obtain patient's consent.[5] No one can consent on behalf of a competent adult. In Dr. Ramcharan Thiagarajan Facs versus Medical Council of India case,[6] disciplinary action was awarded to the surgeon for not taking a proper informed consent for the entire procedure of kidney and pancreas transplant surgery from the patient. In some situations, beside patient consent, it is desirable to take additional consent of spouse. In sterilisation procedures, according to the Ministry of Health and Family Welfare, Government of India guidelines, consent of spouse is not required.[7] The Medical Council of India (clause 7.16) however states that in case an operation carries the risk of sterility, the consent of both husband and wife is needed.[8] It is advisable to take consent of spouse when the treatment or procedure may adversely affect or limit sex functions, or result in death of an unborn child.[9] In case of minor, consent of person with parental responsibility should be taken.[10] In an emergency, the person in charge of the child at that time can consent in absence of parents or guardians (loco parentis).[11] In a medical emergency, life-saving treatment can be given even in absence of consent.
Refusing treatment in life-threatening situations due to non-availability of consent may hold the doctor guilty, unless there is a documented refusal to treatment by the patient. In Dr. TT Thomas versus Smt. Elisa and Orscase,[12] the doctor was held guilty of negligence for not operating on a patient with life-threatening emergency condition, as there was no documented refusal to treatment.
The patient should have the capacity and competence to consent.
A person is competent to contract[13] if (i) he has attained the age of majority,[14] (ii) is of sound mind[15] and (iii) is not disqualified from contracting by any law to which he is subject. The legal age for giving a valid consent in India is 18 years.[14] A child 12 years can give a valid consent for physical/medical examination (Indian Penal Code, section 89).[3] Prior to performing any procedure on a child 18 years, it is advisable to take consent of a person with parental responsibility so that its validity is not questioned. If patient is incompetent, then consent can be taken from a surrogate/proxy decision maker who is the next of kin (spouse/adult child/parent/sibling/lawful guardian).[11] Consent should be free and voluntary.
Consent is said to be free[16] when it is not caused by coercion,[17] undue influence,[18] fraud,[19] misrepresentation,[20] or mistake.[21,22,23] Consent should be informed.
Consent should be on the basis of adequate information concerning the nature of the treatment procedure.[5] Consent should be informed and based on intelligent understanding. The doctor must disclose information regarding patient condition, prognosis, treatment benefits, adverse effects, available alternatives, risk of refusing treatment and the approximate treatment cost. He should encourage questions and answer all queries.[2] If the possibility of a risk, including the risk of death, due to performance of a procedure or its refusal is remote or only theoretical, it need not be explained.[5] Exceptions to physician's duty to disclose include[24] : (i) Patient refusal to be informed; this should be documented. (ii) If the doctor feels that providing information to a patient who is anxious or disturbed would not be processed rationally by him and is likely to psychologically harm him, the information may be withheld from him (therapeutic privilege); he should then communicate with patient's close relative, family doctor or both.
The "adequate information" must be furnished by the doctor (or a member of his team) who treats the patient.[5] Information imparted should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not.[5] Consent should be procedure specific.
Consent given only for a diagnostic procedure, cannot be considered as consent for the therapeutic treatment.[5] Consent given for a specific treatment procedure will not be valid for conducting some other procedure.[5] In Samira Kohli versus Dr. Prabha Manchanda and Anr case,[5] the doctor was held negligent for performing an additional procedure on the patient without taking her prior consent. An additional procedure may be performed without consent only if it is necessary to save the life or preserve the health of the patient and it would be unreasonable to delay, until patient regains consciousness and takes a decision.[5] A common consent for diagnostic and operative procedures may be taken where they are contemplated.[5] Consent obtained during the course of surgery is not acceptable.
In Dr. Janaki S. Kumar and Anr. versus Mrs. Sarafunnisa case, [25] in an allegation of performing sterilisation without consent, it was contended that consent was obtained during the course of surgery. The commission held that the patient under anaesthesia could neither understand the risk involved nor could she give a valid consent.
Consent for blood transfusion.
When blood transfusion is anticipated, a specific written consent should be taken,[24] exception being an emergency situation where blood transfusion is needed to save life and consent cannot be attempted.[26] In M. Chinnaiyan versus Sri. Gokulam Hospital and Anrcase,[27] court awarded compensation as patient was transfused blood in the absence of specific consent for blood transfusion.
Consent for examining or observing a patient for educational purpose Prior to examining or observing patients for educational purpose, their consent must be taken.[28] Blanket consent is not valid.
Consent should be procedure specific. An all-encompassing consent to the effect 'I authorize so and so to carry out any test/procedure/surgery in the course of my treatment' is not valid.[29] Fresh consent should be taken for a repeat procedure.
A fresh written informed consent must be obtained prior to every surgical procedure that includes re-exploration procedure. In Dr. Shailesh Shah versus Aphraim Jayanand Rathod case,[30] the surgeon was found deficient in service and was liable for compensation as he had performed a re-exploration surgery without a written consent from the patient.
Surgical consent is not sufficient to cover anaesthesia care.
The surgeons are incapable to discuss the risks associated with anaesthesia. Informed consent for anaesthesia must be taken by the anaesthesia provider as only he can impart anaesthesia related necessary information and explain the risks involved. It may be documented by the anaesthesiologist on the surgical consent form by a handwritten note, or on a separate anaesthesia consent form.[31] Patient has the right to refuse treatment.
Competent patients have the legal and moral right to refuse treatment, even in life-threatening emergency situations.[31] In such cases informed refusal must be obtained and documented, over the patient's witnessed signature.[32] It may be advisable that two doctors document the reason for non-performance of life-saving surgery or treatment as express refusal by the patient or the authorised representative and inform the hospital administrator about the same.
To detain an adult patient against his will in a hospital is unlawful.[9] If a patient demands discharge from hospital against medical advice, this should be recorded, and his signature obtained.[9] Unilaterally executed consents are void.
Consent signed only by the patient and not by the doctor is not valid.[33] Witnessed consents are legally more dependable.
The role of a witness is even more important in instances when the patient is illiterate, and one needs to take his/her thumb impression.[34] Consent should be properly documented Video-recording of the informed consent process may also be done but with a prior consent for the same. This should be documented. It is commonly done for organ transplant procedures. If consent form is not signed by the patient or is amended without his signed authorisation, it can be claimed that the procedure was not consented to.[10] Patient is free to withdraw his consent anytime.
When consent is withdrawn during the performance of a procedure, the procedure should be stopped. The doctor may address to patient's concerns and may continue the treatment only if the patient agrees. If stopping a procedure at that point puts patient's life in danger, the doctor may continue with the procedure till such a risk no longer exists.[10] Consent for illegal procedures is invalid.
There can be no valid consent for operations or procedures which are illegal.[24] Consent for an illegal act such as criminal abortion is invalid.[9] Consent is no defence in cases of professional negligence.[9] HOW TO OBTAIN A VALID CONSENT AND CONSENT FORMAT.
Always maintain good communication with your patient and provide adequate information to enable him make a rational decision.[35] It is preferable to take consent in patient's vernacular language. It may be better to make him write down his consent in the presence of a witness.[34] It is desirable to use short and simple sentences and non-medical terminology that is written/typed legibly.[36] Patient information sheets (PIS) depicting procedure related information, including pre-operative and post-operative pre-cautions in patient's understandable local language with pictorial representation may facilitate the informed consent process. These may help in providing consistently accurate information to the patients.[35] PIS should be handed over to the patients after explaining the contents. Even videos may be used as an aid in increasing patient understanding.[37] Though there is no standard consent format, it may include the following [e.g., Figure 1]:[38] Figure 1 Anaesthesia informed consent form Document the fact that patient and relatives were allowed to ask questions, and their queries were answered to their satisfaction.
Date and time Patient related: Name, age and signature of the patient/proxy decision maker Doctor related: Name, registration number and signature of the doctor Witness: Name and signature of witness Disease-related: Diagnosis along with co-morbidities if any Surgical procedure related: Type of surgery (elective/emergency), nature of surgery with antecedent risks and benefits, alternative treatment available, adverse consequences of refusing treatment Anaesthesia related: Type of anaesthesia (general and/or regional, local anaesthesia, sedation) including risks Blood transfusion: Requirement and related risks Special risks: Need for post-operative ventilation, intensive care, etc CONSENT IN RELATION TO PUBLICATION.
A registered medical practitioner is not permitted to publish photographs or case reports of his/her patients without their consent, in any medical or another journal in a manner by which their identity could be revealed. However, in case the identity is not disclosed, consent is not needed (clause 7.17).[8] CONSENT IN RELATION TO MEDICAL RESEARCH Consent taken from the patient for the drug trial or research should be as per the Indian Council of Medical Research guidelines[39]; otherwise it shall be construed as misconduct (clause 7.22).[8] COMMON FALLACIES IN THE CONSENT PROCESS.
The anaesthesiologist must ensure that consent is given maximum importance, and all the legal formalities are followed before agreeing to provide the services. Following are some frequent mistakes and omissions that can cost him/her dearly in the event of a mishap: Procedure is considered trivial, and consent is not taken.
Consent of relative is taken instead of the patient, even when patient is a competent adult.
Consenting person is minor, intoxicated or of unsound mind Blanket consent is taken.
Alterations or additions are made in the consent form without patient's signed authorisation.
It is not procedure specific Consent for blood transfusion is not obtained.
Fresh consent is not taken for a repeat procedure Procedure related necessary information is not given Even if the information given, it is not documented Consent lacks the signature of the treating doctor Consent is not witnessed SUMMARY It is not only ethical to impart correct and necessary information to a patient prior to conducting any medical procedure, but it is also important legally. This communication should be documented. Even professional indemnity insurance may not cover for lapses in obtaining a valid consent, considering it to be an intentional assault.
ACKNOWLEDGMENTS We gratefully acknowledge the invaluable contribution and irreplaceable advice extended to us during the preparation of this article by Mr. M Wadhwani, Advocate.
[ REFERENCES
1. Indian Contract Act, Sec 13; 1872. [Accessed on 2014 Aug 21]. Available from: http://www.indianlawcases.com/Act-Indian.Contract.Act,1872.-2386 .
2. Sharma G, Tandon V, Chandra PS. Legal sanctity of consent for surgical procedures in India. Indian J Neurosurg. 2012;1:139-43. [Google Scholar]
3. Rao NG. Textbook of Forensic Medicine and Toxicology. 2nd ed. New Delhi: Jaypee Brothers Medical Publishers (P) Ltd.; 2010. Ethics of medical practice; pp. 23-44. [Google Scholar]
4. Anderson OA, Wearne IM. Informed consent for elective surgery - what is best practice? J R Soc Med. 2007;100:97-100. [PMC free article] [PubMed] [Google Scholar]
5. Samira Kohli vs. Dr. Prabha Manchanda and Anr on 16 January, 2008. Civil Appeal No. 1949 of 2004. (2008) 2 SCC 1; AIR 2008 SC 1385. [Accessed on 2014 May 9]. Available from: http://www.indiankanoon.org/doc/438423/
6. Dr. Ramcharan Thiagarajan Facs vs Medical Council of India on 3 April, 2014. Karnataka High Court. Writ Petition No. 11207/2013 (GM-RES) [Accessed on 2014 July 11]. Available from: http://www.indiankanoon.com/doc/10293098/
7. Standards for Female Sterilization (1.4.4), Standards for Male Sterilization (2.4.4) Standards for Female and Male Sterilization Services. Research Studies and Standards Division, Ministry of Health and Family Welfare Government of India. 2006. Oct, [Accessed on 2014 Mar 16]. Available from: http://www.nrhmtn.gov.in/modules/Guidelines%20for%20Standard%20for%20 female%20 & %20 male%20sterilization%20services.pdf .
8. Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. Published in Part-III, Section 4 of the Gazette of India, dated 6th April, 2002, Amended up to December. 2010.
9. Reddy KS, Murty OP. The Essentials of Forensic Medicine and Toxicology. 32nd ed. Hyderabad: K Suguna Devi; 2013. Medical law and ethics; pp. 22-55. [Google Scholar]
10. Herring J. Medical Law and Ethics. 4th ed. United Kingdom: Oxford University Press; 2012. Consent to treatment; pp. 149-220. [Google Scholar]
11. Arora V. Role of consent in medical practice. [Accessed on 2014 Mar 21];JEvol Med Dent Sci 2013. 2:1225-9. Available from: http://www.jemds.com/data_pdf/vijay%20arora-ROLE%20OF%20CONSENT%20IN%20MEDICAL.pdf . [Google Scholar]
12. Dr. TT Thomas vs Smt Elisa and Ors on 11 August, 1986. Kerala High Court. AIR 1987 Ker 52: 1986 Ker LT 1026 (DB) [Accessed on 2014 Jun 2]. Available from: http://www.indiankanoon.org/doc/600254/
13. Indian Contract Act, Sec 11. 1872. [Accessed on 2014 Aug 21]. Available from: http://www.indianlawcases.com/Act-Indian.Contract.Act.,1872.-2384 .
14. Indian Majority Act. 1875. [Accessed on 2014 Aug 21]. Available from: http://admis.hp.nic.in/himpol/Citizen/LawLib/C0141.htm .
15. Indian Contract Act, Sec 12. 1872. [Accessed on 2014 Aug 21]. Available from: http://www.indianlawcases.com/Act-Indian.Contract.Act.,1872.-2385 .
16. The Indian Contract Act, Sec 14. 1872. [Accessed on 2014 Aug 21]. Available from: http://www.indianlawcases.com/Act-Indian.Contract.Act.,1872.-2387 .
17. The Indian Contract Act, Sec 15. 1872. [Accessed on 2014 Aug 21]. Available from: http://www.indianlawcases.com/Act-Indian.Contract.Act.,1872-2388 .
18. The Indian Contract Act, Sec 16. 1872. [Accessed on 2014 Aug 21]. Available from: http://www.indianlawcases.com/Act-Indian.Contract.Act.,1872-5173 .
19. The Indian Contract Act, Sec 17. 1872. [Accessed on 2014 Aug 21]. Available from: http://www.indianlawcases.com/Act-Indian.Contract.Act.,1872-2390 .
20. The Indian Contract Act, Sec 18. 1872. [Accessed on 2014 Aug 21]. Available from: http://indiankanoon.org/doc/1270593/
21. The Indian Contract Act, Sec 20. 1872. [Accessed on 2014 Aug 21]. Available from: http://www.indianlawcases.com/Act-Indian.Contract.Act.,1872-5178 .
22. The Indian Contract Act, Sec 21. 1872. [Accessed on 2014 Aug 21]. Available from: http://www.indianlawcases.com/Act-Indian.Contract.Act.,1872-2395 .
23. The Indian Contract Act, Sec 22. 1872. [Accessed on 2014 Aug 21]. Available from: http://www.indianlawcases.com/Act-Indian.Contract.Act.,1872-5180 .
24. Kannan JK, Mathiharan K. Legal and ethical aspects of medical practice. In: Modi A, editor. Textbook of Medical Jurisprudence and Toxicology. 24th ed. Nagpur: Lexis Nexis Butterworths Wadhwa; 2012. pp. 61-118. [Google Scholar]
25. Dr. Janaki S Kumar and Anr vs Mrs. Sarafunnisa on 21 June, 1999. Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram. Appeal No. 850 of 1998. (1999) I CPJ 66.
26. Kekre NS. Medical law and the physician. Indian J Urol. 2008;24:135-6. [PMC free article] [PubMed] [Google Scholar]
27. M. Chinnaiyan vs. Sri. Gokulam Hospital and Anr on 25 September, 2006. III (2007) CPJ 228 NC. [Accessed on 2014 Aug 21]. Available from: http://www.indiankanoon.org/doc/1919829/
28. Doyal L. Closing the gap between professional teaching and practice. BMJ. 2001;322:685. [PMC free article] [PubMed] [Google Scholar]
29. Satyanarayana Rao KH. Informed consent: An ethical obligation or legal compulsion? J CutanAesthet Surg. 2008;1:33-5. [PMC free article] [PubMed] [Google Scholar]
30. Dr Shailesh Shah vs AphraimJayanand Rathod. National Consumer Disputes Redressal Commission New Delhi, FA No. 597 of 1995. From the order dated 8 Nov, 1995 in complaint No. 31/94, State Commission Gujarat. [Last accessed on 2014 Aug 21]. Available from: http://www.ncdrc.nic.in/fa59795.html .
31. Waisel DB. Legal aspects of anesthesia care. In: Miller RD, Eriksson LI, Fleisher LA, Wiener-Kronish JP, Young WL, editors. Miller's Anesthesia. 7th ed. Philadelphia USA: Churchill Livingstone Elsevier; 2010. pp. 221-33. [Google Scholar]
32. Tewari A, Garg S. Informed consent and anaesthesia. Indian J Anaesth. 2003;47:311-2. [Google Scholar]
33. Bastia BK, Kuruvilla A, Saralaya KM. Validity of consent-A review of statutes. Indian J Med Sci. 2005;59:74-8. [PubMed] [Google Scholar]
34. Bastia BK. Consent to treatment: Practice vis-à-vis principle. Indian J Med Ethics. 2008;5:113-4. [PubMed] [Google Scholar]
35. Kalantri SP. Informed consent and the anaesthesiologist. Indian J Anaesth. 2003;47:94-6. [Google Scholar]
36. Kaushik JS, Narang M, Agarwal N. Informed consent in pediatric practice. Indian Pediatr. 2010;47:1039-46. [PubMed] [Google Scholar]
37. Tompsett E, Afifi R, Tawfeek S. Can video aids increase the validity of patient consent? J ObstetGynaecol. 2012;32:680-2. [PubMed] [Google Scholar]
38. Singh D. Singh D. Informed vs. Valid consent: Legislation and responsibilities. [Accessed on 2014 Aug 21];Indian J Neurotrauma. 2008 5:105-8. Available from: http://www.medind.nic.in/icf/t08/i2/icft08i2p105.pdf . [Google Scholar]
39. Ethical Guidelines for Biomedical Research on Human Participants. New Delhi: Published by: Director General Indian Council of Medical Research; 2006. [Accessed on 2014 Mar 3]. eral Ethical Issues; pp. 21-33. ] Now we discuss a little about consent form on record . First there is no signature of the concerned Dr on this consent form. There is no separate consent form for anaesthesia. This pro forma is not in accordance with the pro forma prescribed for taking the consent. There is no separate consent to use the body for post-mortem examination for the purpose of study. There is nothing in this consent form which show that the doctor has specifically mentioned all the risks to the patient or his family members regarding operation or any other tests which may be performed. So this consent form is not a proper consent form as per the guidelines. It also shows deficiency and negligence on the part of the opposite parties.
Now we see the events which happened in the operation theatre. Before discussing about it, for ready reference we have scanned here some of the history sheet of the patient.
From this it is clear that the patient was taken to the Liver room at 7:55 PM on 10.03.2004 . She was given anaesthesia by Dr Prakash Asthana . It is written that patient develop sudden respiratory apnoea. The time of sudden respiratory apnoea has not been mentioned in the history sheet. Thereafter it has been written that male child delivered at 8:29 PM.
The patient lost his conscious and it cannot be recovered till 10 PM. On the next day till 3 AM conscious not revived. Again we find a note of 6:30 AM in which it has been written level of consciousness not improved. At 7 AM on 11.03 .04 , a note have written that the hospital ambulance and patient was shifted to SGPGI accompanied by a senior doctor but the doctor name is not there which create doubt that the patient was accompanied by a senior doctor. The complainant has stated that he paid for the ambulance.[RS1] Now the simple question arises as to what was the reason that caused sudden respiratory apnoea. Apnea can come and go and be temporary. This can occur with obstructive sleep apnea, for example.
Prolonged apnea means a person has stopped breathing. If the heart is still active, the condition is known as respiratory arrest. This is a life-threatening event that requires immediate medical attention and first aid.
Prolonged apnea with no heart activity in a person who is not responsive is called cardiac (or cardiopulmonary) arrest. In infants and children, the most common cause of cardiac arrest is respiratory arrest. In adults, the opposite usually occurs, cardiac arrest most often leads to respiratory arrest. Now it is also not clear whether this hospital has ICU? Whether she was taken to the ICU and put on heart monitor or she was put on the heart monitor in the option theatre? If yes, no cardiogram report has been filed which may show the heart reading during this period. So it shows the deficiency on part of the appellant and his hospital.
The primary task of the lungs is to maintain oxygenation of the blood and eliminate carbon dioxide through the network of capillaries alongside alveoli. This is maintained by utilising ventilatory reserve capacity and by changes in lung mechanics. Induction of anaesthesia impairs pulmonary functions by the loss of consciousness, depression of reflexes, changes in rib cage and haemodynamics. All drugs used during anaesthesia, including inhalational agents, affect pulmonary functions directly by acting on respiratory system or indirectly through their actions on other systems. Volatile anaesthetic agents have more pronounced effects on pulmonary functions compared to intravenous induction agents, leading to hypercarbia and hypoxia. The posture of the patient also leads to major changes in pulmonary functions. Anticholinergics and neuromuscular blocking agents have little effect. Analgesics and sedatives in combination with volatile anaesthetics and induction agents may exacerbate their effects. Since multiple agents are used during anaesthesia, ultimate effect may be different from when used in isolation. Literature search was done using MeSH key words 'anesthesia', 'pulmonary function', 'respiratory system' and 'anesthesia drugs and lungs' in combination in PubMed, Science Direct and Google Scholar filtered by review and research articles sorted by relevance.
The primary function of the lungs is to provide an adequate gas exchange for maintaining normal oxygen content in blood and eliminate carbon dioxide. This is achieved by optimising lung volumes to meet higher metabolic demand during the peri-operative period. General anaesthesia (GA) per se causes respiratory impairment and both oxygenation and elimination of carbon dioxide are affected. The factors affecting pulmonary function include loss of consciousness, mode of ventilation (spontaneous or mechanical), posture of patient, actions of anaesthetic agents and drugs, used during anaesthesia on respiratory smooth muscles and secretions. Literature search was done using MeSH key words in PubMed, Science Direct and Google Scholar filtered by review and research articles sorted by relevance.
Common Side Effects of an Anesthesia Overdose Patients and their families need to be aware of the common side effects of an anesthesia overdose prior to surgery so they can identify the symptoms.
Here are some of the more common side effects that could indicate an anesthesia overdose:
Nausea or vomiting Respiratory distress Hypothermia Hallucinations Seizures Mental or physical impairment Dementia Prolonged unconsciousness Brain injuries Death Even those individuals who received a local anesthetic for minor surgery could suffer from side effects of an anesthesia overdose or dangerous or deadly reaction to the anesthesia.
Not all side effects of an anesthesia overdose are temporary. Some people suffer long term complications. Studies mentioned in Scientific American indicate that higher dosages of anesthesia lead to an increased risk of delirium following surgery.
The appellant has not shown the reason of sudden respiratory apnoea. The complainant has categorically said that before arrival of the doctor from Barabanki anaesthesia was administered and as the doctor came late, another dose of anaesthesia was given for prolonged unconsciousness which ultimately resulted in respiratory apnoea. Excess dose may cause respiratory problem as discussed above. One thing is clear that something has happened in the operation theatre due to negligence of the concerned doctors resulting in the respiratory apnoea and loss of consciousness of the patient.
Now we come to post-operative care. It is very necessary for each hospital having surgery to have preoperation, operation and post operation facility are very important for running a nursing home or private hospital.
Immediate postoperative care:
Now an action arises whether there was proper post-operative care taken by the opposite parties after the operation and after the complication developed in the body of the patient.
Postoperative patients must be monitored and assessed closely for any deterioration in condition and the relevant postoperative care plan or pathway must be implemented.
The NCEPOD (2011) report found that patients whose condition was deteriorating were not always identified and referred for a higher level of care. Patients should be made ascomfortable as possible before postoperative checks are performed.
Postoperative patients are at risk of clinical deterioration, and it is vital that this is minimized. Knowledge and understanding of the key areas of risk and local policies will help reduce potential problems (National Patient Safety Agency, 2007; National Institute for Health and Clinical Excellence, 2007).
Track and trigger or early warning systems are widely used in the UK to identify deteriorating patients. These have been adapted by trusts for adults and children and are based on the patient's pulse and respiratory rate, systolic blood pressure, temperature and level of consciousness. Additional monitoring may include pain assessment, capillary refill time, percentage of oxygen administered, oxygen saturation, central venous pressure, infusion rates and hourly urine output.
The National Early Warning Score (NEWS) was developed by a working party to provide a national standard for assessing, monitoring and tracking acutely and critically ill patients (not for use with children under 16 years or in pregnancy); the intention was that trusts would use it to replace their locally adapted early warning systems (Royal College of Physicians, 2012). Like other early warning systems, NEWS has six physiological parameters:
Respiratory rate;
Oxygen saturation;
Temperature;
Systolic blood pressure;
Pulse rate;
Level of consciousness (this will be impaired in patients who have had recent sedation or are receiving opioid analgesia, which should be taken into consideration in assessment).
The system also includes a weighting score of two, which is added if the patient is receiving supplemental oxygen via a mask or nasal cannulas.
When assessing the postoperative patient using NEWS, it is vital that the patient is observed for signs of hemorrhage, shock, sepsis and the effects of analgesia and anesthetic. Patients receiving intravenous opiates are at risk of their vital signs and consciousness levels being compromised if the rate of the infusion is too high. It is therefore imperative that the patient's pain control is managed well, initially by the anesthetist and then the ward staff and pain team or anesthetist, to ensure that the patient has adequate analgesia but is alert enough to be able to communicate and cooperate with clinical staff in the postoperative period.
Many trusts have yet to implement NEWS, although it is beginning to be taught in pre-registration nursing programmes. Student nurses frequently perform postoperative observations under the supervision of a nurse; it is reassuring that they receive some insight and education as recommended by NCEPOD (2011).
Vital signs;
Vital signs should be performed in accordance with local policies or guidelines and compared with the baseline observations taken before surgery, during surgery and in the recovery area.
Nurses should also be aware of the parameters for these observations and what is normal for the patient under observation. When assessing patients' recovery from anaesthesia and surgery, these observations should not be considered in isolation; the nurse should look at and feel the patient. This also applies to children and should include observation of other signs and symptoms, for example abdominal tenderness or poor urine output, which could indicate deterioration (Royal College of Nursing, 2011). The RCN (2011) provides guidance on vital signs performed post-operatively on children. Many trusts now insist that vital signs are performed manually to provide more accurate recording and assessment.
All vital signs and assessments should be recorded clearly in accordance with guidelines for record keeping (Nursing and Midwifery Council, 2009). Handheld personal digital assistants (PDAs) are used at some trusts to store track and trigger data and calculate early warning scores, which can be accessed by the clinical and outreach teams.
When a patient's condition is identified as deteriorating, this information can be passed verbally to appropriate health professionals using the Situation, Background, Assessment and Recommendation (SBAR) tool advocated by the NHS Institute for Innovation and Improvement (2008).
Airway and respirations Respiratory rate and function is often the first vital sign to be affected if there is a change in cardiac or neurological state. It is therefore imperative that this observation is performed accurately; however, studies show it is often omitted or poorly assessed (NPSA, 2007; NCEPOD, 2005).
Nurses should observe and record the following:
Airway;
Respiratory rate (regular and effortless), rhythm and depth (chest movements symmetrical);
Respiratory depression: indicated by hypoventilation or bradypnoea, and whether opiate-induced or due to anaesthetic gases.
Oxygen therapy Oxygen is administered to enable the anaesthetic gases to be transported out of the body, and is prescribed when patients have an epidural, patient-controlled analgesia or morphine infusion. Nurses should ensure and record the following:
Oxygen therapy is prescribed;
Oxygen is administered at correct rate;
Continuous oxygen therapy is humidified to prevent mucous membranes from drying out;
The skin above the ears is protected from elastic on the mask.
Pulse oximetry Oxygen saturation should be above 95% on air, unless the patient has lung disease, and maintained above 95% if oxygen therapy is prescribed to prevent hypoxia or hypoxaemia. An abnormal recording may be due to shivering, peripheral vasoconstriction or dried blood on the finger.
Nurses should ensure that:
The finger probe is clean;
The position of the probe is changed regularly to prevent fingers becoming sore.
Heart rate, blood pressure and capillary refill time The following should be checked and recorded:
Rate, rhythm and volume of pulse;
Blood pressure;
Capillary refill time to assess circulatory status, along with the colour and temperature of limbs, also identifying reduced peripheral perfusion.
Particular attention should be paid to the systolic blood pressure as a lowered systolic reading and tachycardia may indicate haemorrhage and/or shock, although initially the blood pressure may not drop and will remain within normal limits as the body compensates. Tachycardia may also indicate that the patient is in pain, has a fluid overload or is anxious. Hypertension can be due to the anaesthetic or inadequate pain control.
Body temperature Children, older adults and patients who have been in theatre for a long period are at risk of hypothermia. Shivering can be due to anaesthesia or a high temperature indicative of an infection, while a drop in temperature might indicate a bacterial infection or sepsis.
Patients' temperature should be monitored closely and action taken to return it to within normal parameters.
Use a Bair Hugger (forced-air blanket) and blankets to warm the patient if their temperature is too low;
Choose an appropriate method to cool the patient if their temperature is too high (antipyretics/fanning/ tepid sponging).
Level of consciousness .
Postoperative patients should respond to verbal stimulation, be able to answer questions and be aware of their surroundings before being transferred to the ward and throughout the postoperative period.
A change in the level of consciousness can be a sign that the patient is in shock. The AVPU scale (Box 2) is appropriate for assessing consciousness in adults, children and young people unless they have had neurosurgery (RCN, 2011).
Fluid balance The NCEPOD (2011) found, in 30% of patient data reviewed, there was insufficient recording of postoperative fluid balance. Nurses should observe/undertake and record on the fluid balance chart the following:
IV fluids (colloids and crystalloids used to replace fluid loss postoperatively) and infusions;
Oral intake;
Urine output: catheter urine measurements should not be less than 0.5ml/kg/hour. Oliguria can be a sign of hypovolaemia and should be reported to medical staff immediately. Check that the catheter is not kinked or that the patient is not lying on the tubing if urine output is reduced;
Colour of stoma (where appropriate) and whether there is any bleeding;
Nausea and vomiting: if necessary, administration of antiemetics should be checked and vomit bowls and tissues should be within easy reach of the patient;
Oral care;
Nasogastric tube drainage (aspirate if patient feels nauseous unless otherwise indicated);
Colour and amount of wound drainage: large amounts of fresh blood could be an indication of haemorrhage; if there is no wound drainage, it is advisable to check that the drain has not fallen out.
Intravenous infusions The RCN (2010) and Health Protection Scotland (2012) recommend that peripheral venous catheters (PVC) are checked daily as a minimum, and consideration given to removing any PVC that has been in situ longer than 72 hours (Health Protection Scotland, 2012) or 72-96 hours (Department of Health, 2011).
A phlebitis scale can be used to help assess the PVC site; the Visual Infusion Phlebitis Scale (Jackson, 1998) is frequently used and recommended by the RCN (2010). These national guidelines should be used as resources in caring for PVCs. The following should be checked and recorded:
The PVC site when changing IV fluids, before administering IV medication;
Signs of phlebitis (redness, heat and swelling).
Conclusion The postoperative healthcare team is under constant pressure to discharge patients quickly. This can lead to vital signs being missed and result in a delay in recovery.
Patients can be discharged quickly only when they do not experience any post-operative complications, many of which can be avoided or identified with correct and thorough monitoring of signs and symptoms.
All health professionals must continually update their theoretical knowledge and clinical skills; those working in post-operative care can do this by relying less on electronic equipment and developing their ability to combine the use of assessment tools with good observational skills; feeling, listening for abnormal sounds and closely observing their patients.
There are guidelines issued by World Health Organisation for Post Operative Care - these are Postoperative care Post operative note and orders The patient should be discharged to the ward with comprehensive orders for the following:
• Vital signs • Pain control • Rate and type of intravenous fluid • Urine and gastrointestinal fluid output • Other medications • Laboratory investigations The patient's progress should be monitored and should include at least:
• A comment on medical and nursing observations • A specific comment on the wound or operation site • Any complications • Any changes made in treatment Aftercare: Prevention of complications • Encourage early mobilization:
o Deep breathing and coughing o Active daily exercise o Joint range of motion o Muscular strengthening o Make walking aids such as canes, crutches and walkers available and provide instructions for their use • Ensure adequate nutrition • Prevent skin breakdown and pressure sores:
o Turn the patient frequently o Keep urine and faeces off skin • Provide adequate pain control Discharge note On discharging the patient from the ward, record in the notes:
• Diagnosis on admission and discharge • Summary of course in hospital • Instructions about further management, including drugs prescribed.
Ensure that a copy of this information is given to the patient, together with details of any follow-up appointment .
(WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003 Postoperative Management) If the patient is restless, something is wrong.
Look out for the following in recovery:
• Airway obstruction • Hypoxia • Haemorrhage: internal or external • Hypotension and/or hypertension • Postoperative pain • Shivering, hypothermia • Vomiting, aspiration • Falling on the floor • Residual narcosis The recovering patient is fit for the ward when:
• Awake, opens eyes • Extubated • Blood pressure and pulse are satisfactory • Can lift head on command • Not hypoxic • Breathing quietly and comfortably • Appropriate analgesia has been prescribed and is safely established (WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003 ) Post operative pain relief • Pain is often the patient's presenting symptom. It can provide useful clinical information and it is your responsibility to use this information to help the patient and alleviate suffering.
• Manage pain wherever you see patients (emergency, operating room and on the ward) and anticipate their needs for pain management after surgery and discharge.
• Do not unnecessarily delay the treatment of pain; for example, do not transport a patient without analgesia simply so that the next practitioner can appreciate how much pain the person is experiencing.
Pain management is our job.
Pain Management and Techniques • Effective analgesia is an essential part of postoperative management.
• Important injectable drugs for pain are the opiate analgesics. Nonsteroidal antiinflammatory drugs (NSAIDs), such as diclofenac (1 mg/kg) and ibuprofen can also be given orally and rectally, as can paracetamol (15 mg/kg).
• There are three situations where an opiate might be given: o Preoperatively o Intraoperatively o Postoperatively • Opiate premedication is rarely indicated, although an injured patient in pain may have been given an opiate before coming to the operating room.
• Opiates given pre- or intraoperatively have important effects in the postoperative period since there may be delayed recovery and respiratory depression, even necessitating mechanical ventilation.
• Short acting opiate fentanyl is used intra-operatively to avoid this prolonged effect.
• Naloxone antagonizes (reverses) all opiates, but its effect quickly wears off.
• Commonly available inexpensive opiates are pethidine and morphine.
• Morphine has about ten times the potency and a longer duration of action than pethidine.
(continued next page) WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003) Post operative pain relief (continued) • Ideal way to give analgesia postoperatively is to:
o Give a small intravenous bolus of about a quarter or a third of the maximum dose (e.g. 25 mg pethidine or 2.5 mg morphine for an average adult) o Wait for 5-10 minutes to observe the effect: the desired effect is analgesia, but retained consciousness o Estimate the correct total dose (e.g. 75 mg pethidine or 7.5 mg morphine) and give the balance intramuscularly.
o With this method, the patient receives analgesia quickly and the correct dose is given • If opiate analgesia is needed on the ward, it is most usual to give an intramuscular regimen:
¾ Morphine: - Age 1 year to adult: 0.1-0.2 mg/kg - Age 3 months to 1 year: 0.05-0.1 mg/kg ¾ Pethidine: give 7-10 times the above doses if using pethidine • Opiate analgesics should be given cautiously if the age is less than 1 year. They are not recommended for babies aged less than 3 months unless very close monitoring in a neonatal intensive care unit is available.
So it is also clear that in this hospital they have no proper equipments for the post-operative care of the patient and ultimately they have to shift the patient to SGPGI for further management. When you have no such paraphernalia there was no need to admit patient in your hospital for surgery. Whenever you think that it is difficult for you to manage the post-operative care of the patient you always refer the patient to some higher Institute for further management. In this case also it has happened and we saw the negligence and deficiency on the part of the appellant and his team.
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. SanthaIII(1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent.This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
Essentials of Res Ipsa Loquitur Maxim The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In Achutrao Haribhau Khodwa and Others vs State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent.
Top of Form Bottom of Form The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsaloquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence.
cases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. MarkLuney and Ken Opliphant , Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 In A.S. Mittal &Anr Vs State Of UP &Ors , AIR 1979 SC 1570 , the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth ₹ 12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not have occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
"Toxic Epidermal Necrolysis (TEN) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No. 1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Honble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos. 1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Honble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.KaushikNandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation.
We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- (rounded of to Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr. Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
The above amount shall be paid by opposite parties no. 1 to 4 to the complainant in the following manner:
(i). Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation].
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation]
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default. "
We have seen the judgment of the learned Forum who has discussed every aspect elaborately. The deficiency has also been shown by the anaesthetist. There was no separate consent form for anaesthesia which was mandatory as per guidelines. It is also not clear as to when all the history sheet of patients treatment was handed over to the patient's family.
In the case ofMISC. BENCH No. - 11289 of 2013 , Sameer Kumar Vs State Of U.P.Thr.Prin.Secy.Medical Health Deptt.& Others , Judgement 12.09.14 ,( Hon'ble Justice DP Singh ) the Hon'ble High Court has said , "The question of public importance involved in the present writ petitions, relates to supply of copy of "medical records" to the patients or their authorised attendants during the course of treatment or after the treatment. The factual matrix on record shows that in the State of U.P., the Government hospitals, nursing homes or even medical colleges or hospitals run by the Government and private persons ordinarily, do not provide medical record to patients or their authorised agent. In consequence, the citizens suffer from medical negligence may not be able to file complaint for damages or prosecute the guilty."
"Right to life as well as quality of life are the fundamental rights granted by Article 21 of the Constitution of India. By catena of judgement Hon'ble Supreme Court from time to time emphasized that in civilized society the citizens have got right for proper treatment and dignified behavior from the Hospitals. Accordingly, it shall always be incumbent upon the State Government to frame regulatory provision bearing constitutional responsibility."
"3. So far as maintenance of medical records are concerned, Clause 1.3 as contained in notification of Medical Council of India is reproduced as under:-
"1.3 Maintenance of medical records:-
1.3.1 Every physician shall maintain the medical records pertaining to his/her indoor patients for a period of 3 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India and attached as Appendix 3.
1.3.2 If any request is made for medical records either by the patients/authorised attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours.
1.3.3 A registered medical practitioner shall maintain a Register of Medical Certificates giving full details of certificates issued. When issuing a medical certificate he/she shall always enter the identification marks of the patient and keep a copy of the certificate. He/she shall not omit to record the signature and/or thumb mark, address and at least one identification mark of the patient on the medical certificates or report. The medical certificate shall be prepared as in Appendix 2.
1.3.4 Effort shall be made to computerize medical records for quick retrieval."
7. Needless to say that while dealing with private dispute this Court may also look into public interest in view of earlier Division Bench judgement of this court reported in 2011 (7) ADJ 169 Dr. Devendra Pratap Singh Vs. Union of India, which has been affirmed by Hon'ble Supreme Court. Hence, we issue interim mandamus to secure public interest. We further direct respondent no. 4 and 5 to provide the petitioner copy of records in terms of regulation of Medical Council of India (supra) within a week from the date of production of certificate copy of the present order.
"4 The condition contained in the notification dated 11.3.2002 has got statutory force and it shall always be incumbent upon the medical practitioners, hospitals, Nursing Homes whether they are government or private to abide by notification dated 11.3.2002. Accordingly, it shall be incumbent upon the medical practitioners, hospitals, Nursing Homes or Clinical Establishments to provide a copy of medical records to the patients or their nominee within a period of 72 hours as and when request is made. In case, records are not supplied, it shall be punishable and make out a case for rejection of registration of such Hospital, Medical practitioner or Nursing Home by the competent authority. Prima facie, it was incumbent upon the respondent nos. 4 and 5 to supply document as demanded in terms of Clause 1.3 of the aforesaid notification.
Subject to aforesaid factual material on record, we issue ad interim mandamus to the State Government to frame regulations/rules after taking into account the notification dated 11.3.2002 issued by Medical Council of India. While granting registration to any medical practitioner to run Clinic, Nursing Home or Hospital or a clinical establishment the condition provided in notification dated 11.3.2002 must be made part and parcel of the registration certificate. Whether it is government or private Hospital, Nursing Home or Clinics while issuing registration certificate State Government must ensure that conditions given in the notification dated 11.3.2002 issued by Medical Council of India be complied with and also incorporated as condition of licence."
So it is clear that all the medical documents related to the treatment of the patient should be handed over either to the patient or his family members within 72 hours after his discharge. No such document or receiving has been filed in this case to show that all the documents have been handed over to the family of the patient.
Therefore it is clear that there is clear deficiency and negligence on the part of the appellant and also on the part of the anaesthetist. We do not find any ground to interfere in the judgment delivered by the learned District Forum. Both these appeals are liable to dismissed with costs.
ORDER Both the appeals, Appeal no.1502 of 2018 and Appeal no.1538 of 2018 are dismissed with cost and the judgment and order of the learned District Forum passed in complaint Case no.563 of 2004 is confirmed.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Dated 24.3.2023 JafRi, PA II Court 2 [RS1] [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER