Indian Medical Association vs V.P. Shantha & Ors on 13 November, 1995
9. What
constitutes medical negligence is now well settled through a number of
judgments of this Commission as also of the Honble Supreme Court of
India. One of the principles to test
medical negligence is whether a doctor exercised a reasonable degree of care and
caution in treating a patient [Supreme Court Case Indian Medical Association
v. V.P. Shantha (1995) 6 SCC 651. In
the instant case, there is no doubt that the Respondent Doctors are well
qualified and there may not have been any technical mistake in conducting the
open surgery. However, since as per
their own records Respondents had decided on a laparoscopic procedure and
without being able to satisfactorily explain why they thereafter decided to
conduct the surgery through open cholecystectomy which is medically
contraindicated in such patients, we are of the view that the reasonable degree
of care and caution as required was not taken in the instant case. We are also not convinced that the Appellants
and the Patient were duly informed that the procedure would be done only through
an open surgery and not through laparoscopic method. No doubt, this was not
specifically stated in the consent form but clearly since the surgery was
posted for laparoscopic procedure as per the notings of the Respondent Doctors
on the day of the surgery i.e. 14.06.1996, the Appellants contention that they
had been assured by the Respondents that the procedure would be done only
through a laparoscopic method appears to be plausible. The State Commission
while noting these facts has discarded the same by observing that merely
because lap cholecystectomy has been mentioned, it does not mean that the
Respondent Doctors had agreed to do only Laparoscopic procedure. We also note
that the State Commission has not given any credence to the statement of Dr.
Saravanabhavnantham, who had given his expert medical opinion backed by medical
literature that open cholecystectomy in patients with diabetes and other
co-morbidities is contraindicated primarily on the grounds that he had not physically
examined the Patient and had made a contradictory statement in respect of the
normal LV Ejection Fraction level. Since
this expert opinion was based after a study of the medical records of the
Patient and after citing relevant medical literature, the opinion of Dr.
Saravanabhavnantham did have evidentiary value, which was not fully appreciated
by the State Commission.