Medical Negligence and Medical Law

Gopinath  Shenoy

Section 1

1MEDICAL JURISPRUDENCE AND LEGAL ISSUES

Medical Negligence and Medical Law1

Gopinath Shenoy

Abstract

In India, a person aggrieved by medical negligence can file a civil or criminal suit, approach the State Medical Council, or file a complaint with a consumer court. Deficient service provided by a healthcare provider is actionable. The accessibility of a medium for grievance redressal under the Consumer Protection Act, 1986 for “deficiency in service”, has given rise to a large number of complaints against doctors, being filed by the persons feeling aggrieved.

Since Judges do not, and are not expected to have the knowledge of medical issues, they take help of experts in technical matters. Most cases in medical malpractice or criminal negligence need the testimony of expert witness to prove that malpractice was committed. Expert evidence plays a very important role in deciding any medicolegal case. It is important for doctors to know what constitutes medical negligence. A basic knowledge of how medical negligence is adjudicated in the various judicial courts of India is of absolute necessity for doctors. This chapter outlines the basic features of “medical negligence” and the issues associated with the subject matter.

CASE STUDY 1

In the case of Anil Dutt v. Vishesh Hospital, the National Consumer Disputes Redressal Commission (NCDRC) held radiologists negligent for missing out congenital anomalies in ultrasound scans on the basis of expert opinion from a forensic medicine expert. The expert opined it was gross negligence on the part of radiologists who have failed to provide reasonable skill to detect congenital malformation which was their basic duty while doing sonography. Arguing against it, the counsel for the radiologist commented that the forensic expert has overstepped in expression regarding ultrasound science, as he is not qualified and acquainted with the technology. The counsel further raised objections on the expert opinion given, since he is not a qualified expert in 4radiology or sonography. Thus, the forensic medicine specialist has knowingly given a false expert opinion to subvert the course of justice, it is in violation of the Code of Medical Ethics, and the radiologist reserves the right to complain to the MCI against him. Also the complainant and forensic medicine expert are liable under IPC chapter XI for giving false evidence. The counsel prayed to issue necessary directions for prosecution of the complainant in terms of section 195 of the CrPC.

NCDRC bench observed, “It appears that the doctors are often reluctant to testify against their colleagues (as the ‘conspiracy of silence’), hence it is difficult to find an unbiased expert willing to testify against a negligent doctor or label the care as substandard. The opinion of doctor, who is a forensic medicine expert, is acceptable in radiologist's negligence. We are not more convinced with the three expert opinions by radiologists on behalf of radiologists, because it is silent about procedural lapses of radiologists who issued reports casually as limbs are normal. It means either radiologist had not seen it, or it was wrongly diagnosed. Experts relied upon routine obstetric scan (for general growth pattern and gestational age) v. targeted (anomaly) scan, but remained silent about the ethical obligations of sonologist. The doctor is bound by ethical obligations to examine patient thoroughly with all his competence. Therefore, the radiologists should not shirk away from their responsibility and professional obligations.”¹

INTRODUCTION

Forensic medicine specialists are regularly providing expert opinions in the court of law related to various medicolegal issues including alleged medical negligence pertaining to different specialties. However, services provided by a forensic expert have been the subject matter of judicial review time and again. Therefore, it becomes essential that the forensic medicine expert is better informed what is and what is not medical negligence.

SERVICE AND DEFICIENCY OF SERVICE

Section 2(1)(o) of the Consumer Protection Act (CPA), 1986 defines the word “service”. The word “deficiency” has been defined under section 2(1)(g) of the Act. The Consumer Disputes Redressal Commissions have laid down decisively what is and what is not “deficiency” in the services provided by a healthcare provider, and also what is and what is not actionable negligence.

“Service” means service of any description which is made available to potential users, and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.² The Supreme Court (SC) has held that the services provided by the medical fraternity falls within the ambit of the word “service” as defined by section 2(1)(o) of the CPA 1986.³5

“Deficiency” means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance, which is required to be maintained by or under any law for the time being in force, or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.²

CASE STUDY 2

Deficiency in outsourcing laboratory services: In the case of Mayo Hospital v. Sunil Tiwari, chorionic villus sample for biopsy was taken out from the uterus of the complainant's wife for which ₹ 1,200 was charged. Due to delay in transit of two days, the sample was spoiled. Repeat biopsy was taken, for which ₹ 1,200 was charged again, but this time also the sample reached Indore after four days, and was not worth testing. The court held deficiency in service, and compensation of ₹ 20,000 and refund of fees was awarded.⁴

CASE STUDY 3

Prenatal anomaly scans missed out amelia (absence of one limb) and unilateral renal agenesis (absence of one kidney) in intrauterine growth retarded (IUGR) fetus by two radiologists. They reported “fetal spine, trunk and limbs are normal”. The principle of “res-ipsa-loqiutor” was applied in this case, and the radiologists were ordered to pay ₹ 15,00,000 jointly and severally to the parents; there was no negligence on the part of the gynecologist. The act of radiologists, was it a medical negligence or deficiency in service?

Interestingly, the deficiency in service or breach in duty was proved against radiologists, but the anomaly was not due to the breach of duty. There is no “causa causans”, because the anomaly was pre-existing. The ultrasonography was performed at 21 weeks of gestation; and even if it was diagnosed, there was no treatment or any cure except the medical termination of pregnancy (MTP). But, under the MTP Act, it is prohibited at 21st week of pregnancy. Hence, the patient has to continue the pregnancy till its delivery.

Keeping in view and the circumstances, it amounts to medical negligence due to carelessness and deficiency in service. Both radiologists failed to discharge their duty with care and caution. Without careful examination, they reported a normal scan. It is an unethical and casual approach on both the occasions. It gave a false hope to the mother and family members that “all is well” (Anil Dutt v. Vishesh Hospital).¹

NEGLIGENCE AND RASHNESS

Negligence and rashness on the part of a healthcare provider while treating a patient is considered by the courts as “deficiency in services”. Negligence is the opposite of diligence. An “act” is said to be performed negligently when it is performed without due diligence. That is to say that the standard of care exhibited while performing the act was below par. When an act is undertaken without the requisite care and caution, the act is labeled as a “rash” act. Negligence and rashness usually go hand-in-hand and in general denotes carelessness.6

In India, as in England, it is well settled that medical malpractice cases are governed by the general principles of the law of Torts. Before the enforcement of the CPA, medical negligence was inevitably governed by the law of Torts. Alderson defined negligence as: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.”⁵ Salmond in his authoritative treatise on the Law of Torts referred to this definition.⁶

Negligence has many manifestations—it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence, administrative negligence, or negligence “per se”.⁷ It is also observed that where a person is guilty of negligence per se, no further proof is needed.⁸

Contributory Negligence

Contributory negligence is the negligence in not avoiding the consequence arising from the negligence of the doctor, when means and opportunity are afforded to do so. It is the non-exercise by the patient of such ordinary care, diligence, and skill so as to avoid the consequence of the doctor's negligence.

CASE STUDY 4

Hazardous negligence: Contemplation is required about the settings and the expertise of the person administering potentially hazardous or scheduled drugs. In the case of Dr L Krishna v. BT Sridhar, the medical experts stated in court that Inj. Atracurium (atracurium is indicated as an adjunct to general anesthesia and facilitate mechanical ventilation in ICU patients) should be administered by an anesthetist and other clinicians who have had extensive training in their use, and in a setting where facilities for respiratory and cardiovascular resuscitation are immediately at hand. The said injection was administered by a staff nurse for breathlessness of patient in the postoperative ward after laparoscopic tubectomy, and this was held as hazardous negligence. The patient suffered cardiorespiratory arrest, and cardiopulmonary resuscitation was done. The patient was kept on ventilator for nearly four months, and later passed away. The patient's case sheet showed no entry of Inj. Atracurium administered to the patient. Hospital was held negligent for the negligence of its employee, the nurse.⁹

CASE STUDY 5

Collateral negligence: In the case of Sathyaprabha Sujathan v. Venniyil Dr Sukumara Pillai Memorial Hospital, the court found that the patient had withheld the family history of bleeding disorder, and hence the court deducted 50% from the compensation awarded to the patient on account of collateral contributory negligence of the patient.¹⁰ The wrongs and mistakes done by the patient must be specifically recorded in the medical records. At times, it acts as a complete defense. But even in cases where the doctor or hospital is held negligent, these acts of the patient either minimize or completely condone the wrong.7

CASE STUDY 6

Limited negligence: The patient had a pterygium. Postsurgery, the patient was prescribed Mitomycin-C (a chemotherapeutic agent) for local application for 2 weeks, but patient continued for a longer period. When the patient's eye condition deteriorated and he developed dryness and loss of vision, he consulted another ophthalmologist. He informed the patient that his condition worsened because of the prolonged use of Mitomycin-C. In this case, the court held the ophthalmologist liable for limited negligence for not giving a written prescription, and instead verbally advising the patient to stop a particular drug after two weeks. The fact that the patient kept changing doctors was viewed adversely by the courts (Devinder Singh Gupta v. Dr Vivek Pal).¹¹ The fact that the patient has consulted other doctors must be specifically recorded in the medical records of the patient.

CASE STUDY 7

Administrative negligence: In the case of Mukesh Jain v. KL Anand, vomiting and choking occurred during MRI, leading to death of patient due to asphyxia. The court observed that the staff of the radiologist was either not aware of the fact that the patient who had informed that she had taken light breakfast could not be subjected to MRI test, or they took it lightly that she could be subjected to MRI test even if she had taken light breakfast, or MRI was conducted for monetary reasons little realizing that it can create complication, which it did create and resulted in death. The court held that it was a case of administrative negligence. The court found that there was contributory negligence of the patient as she had taken the breakfast, and awarded token compensation of ₹ 25,000 only.¹²

CASE STUDY 8

Concurrent negligence: In the case of Sichendra Kumar v. Dr Kiran Kathpalia, the court held the dentist negligent for extracting the wrong tooth, but at the same time held the patient guilty of concurrent contributory negligence up to 50%, as he did not bring the OPD card on the day of extraction. In this case, admittedly the patient forgot to bring his OPD card where the exact tooth that was to be extracted was recorded. The court observed that in such a scenario, the dentist ought to have refused to extract the tooth on that day, instead of proceeding with extraction and removing the wrong one. In case there is any shortcoming or any important record is not found, it is advisable that no further action or treatment be performed, if there is no emergency.¹³

CASE STUDY 9

Gross medical negligence: Test dose of Ampicillin was not given to check hypersensitivity before administering loading dose for prophylactic antibiotic after tonsil surgery (there was no problem till the administration of fourth dose and only during the fifth dose there was sudden fatal allergic reaction). The patient was normal till about four hours after the surgery, but thereafter, when Ampicillin injection was administered, patient turned blue instantaneously, and had breathlessness and 8laryngeal edema. He was shifted to another room, was kept under ventilation, and about two hours later, the patient was declared dead. It was held that if the hospital staff had given the test dose before the full dose was administered, death would not have occurred. In the postmortem report, the cause of death is stated as “The deceased appeared to have died due to the effects of laryngeal edema”. The failure to give the test dose amounted to gross medical negligence and deficiency in service, hence both hospital and doctor were held responsible (The Secretary, Government of Tamil Nadu v. Kothandaraman).¹⁴

CASE STUDY 10

Reckless negligence: In the case of B Jagdish v. State of AP, the doctor publicized himself to be child specialist, although he was just a graduate (MBBS). He misdiagnosed a 7-year-old child suffering from fever and rashes all over the body as tuberculosis, and started antitubercular drugs. Blood tests were done twice which disclosed an abnormal increase in the white blood cells count. The patient was taken to another doctor for second opinion who suggested that a biopsy of the bone marrow be done immediately as he suspected leukemia. The biopsy report confirmed leukemia, that too in an advanced stage. She died 10 days later. A criminal complaint was filed in court against the doctor. It was stated in defense by the doctor that the patient would in any case have died as she was suffering from leukemia. The court held this argument invalid and held doctor responsible for reckless negligence. The court also observed that the doctor should not profess himself to be as a specialist, unless he/she has the requisite expertise.¹⁵

CASE STUDY 11

Eliciting complete and relevant history of the patient and recording the same is a doctor's duty. However, at times, patients either innocently or purposely fail to disclose or conceal the same, and the consequences thereof could be serious. In the case of Manju Anil Chawla v. Jivandhara Hospital, the patient had not disclosed that he had taken treatment for cardiac and renal problems at various hospitals about a year ago. The patient underwent septoplasty, and suffered cardiorespiratory arrest. The court did not hold the ENT surgeon liable due to patient's nondisclosure. The court observed that “patients are responsible for exercising ordinary care in revealing information to their physicians, and those physicians have the primary responsibility for eliciting an accurate history from their patients due to their greater wealth of medical knowledge. This responsibility cannot be fully achieved without the truthful admissions of the patient. Thus, if the patient willfully chooses to withhold information from the physician, the physician cannot be liable for medical negligence”.¹⁶

DUTY OF CARE AND STANDARD OF CARE

An action for negligence proceeds upon the idea of a “duty” or an “obligation” on the part of the healthcare provider to use the required care and caution. No case of actionable negligence will arise unless the “duty to be careful” exists. Negligence is simply neglect of some care, which the doctor is bound 9by law to exercise toward his patients. There cannot, therefore, be a liability for negligence, unless there is a breach of some duty. Moreover, the violation of this duty must inflict some damage to the person to whom this duty is owed.

A healthcare provider has to evince a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care while practicing his profession. The duty of a healthcare provider is based on the fact that he is handling a human being, and is likely to cause physical damage, unless proper care and skill is applied. A healthcare provider who treats a patient is presumably giving an undertaking that he possesses the required skill and knowledge for that purpose. He is duty bound in two respects viz., he owes a primary duty of care in deciding whether he should undertake the case, and after having undertaken the case, the next duty is cast on him—the duty of care in the administration of the treatment wherein he should use diligence, care, knowledge and caution. His failure to perform either of the above two duties, if proved, will offer reasonable and valid ground to fasten liability on him.¹⁷ He need not be expected to possess the highest or a very high standard nor should he have a very low standard.^8,18 Law requires fair and reasonable standard of care and competence. Every healthcare provider who enters into the medical profession thus has a duty to act with a reasonable degree of care and skill.

A healthcare provider need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises ordinary skill of an ordinary healthcare provider exercising that particular art.¹⁹ A healthcare provider who professes to have some special skill (specialty or subspecialty) is judged not by the standards of an ordinary physician but by much higher standards. The test here will be the standard of a skilled specialist exercising and professing to have that special skill.

The prudent man is the man who has acquired the skill to do the act which he undertakes. If a man has not acquired the skill to do a particular act he undertakes, then he is imprudent, however careful he may be, and however great may his skill be in other things. The degree of care which a healthcare provider is required to use in a particular situation varies with the obviousness of the risk. If the danger of injuring a person by the pursuance of a certain line of treatment is great, great care is necessary. If the danger is slight, only a slight amount of care is required. Thus, a healthcare provider must not act in such a way as to cause injury to his patients. The care that will be required of him will be the care that an ordinary prudent healthcare provider is bound to exercise. But, healthcare providers who profess to have special skills, or who have voluntarily undertaken a higher degree of duty, are bound to exercise more care than an ordinary prudent healthcare provider.

The court will not expect a healthcare provider working in extreme conditions to achieve the same results as his colleague operating within the confines of a well-equipped hospital, and will not judge his conduct too harshly simply because, with hindsight, a different course would have been 10adopted had the situation not been an emergency. In case of emergency, the healthcare provider conducting a case has wider discretion about the treatment. Where the operation is a race against time, the court will make greater allowance for mistakes on the part of the healthcare provider or his assistants taking into consideration the “risk benefit test”.

CASE STUDY 12

Wrongful death of mother and child: In the case of K Muniasamy v. Harley Rram Nursing Home, the patient was having intrapartum jaundice due to viral hepatitis. She was eight months pregnant when she was admitted in hospital with fulminant hepatic failure. Based on the “risk benefit test”, the obstetrician took the risk of continuing pregnancy for benefit of fetus—managed the pregnant lady conservatively with gastroenterologist since fetus was extremely premature. However, there was premature stillbirth with allegation of mismanagement of jaundice leading to intrauterine death (IUD) before birth. The patient's condition deteriorated next day, and on the advice of the doctor, she was shifted to another hospital where she died after a week.

The court observed that pregnant lady's husband has not produced any “expert opinion” to show that the course of treatment followed was ill advised. It is not established that there is any irregularity with the treatment and that there is lack of reasonable care in treating the patient. Just because an unfortunate death occurred, no presumption of negligence would result therefrom. According to medical literature, termination of pregnancy is contraindicated in such cases because of known risk of high mortality for the pregnant woman. The baby died during the course of delivery. The fact that there was no peeling of the skin and no collapse of the skull of the stillborn fetus supports the stand of the doctors that there was no prior IUD (dead born). Therefore, the question of removing the fetus by cesarean section does not arise. Fetal heart was heard by fetoscope, and ultrasonography showed that the fetus was alive and movements were there till delivery. The fetal movement was felt by the patient herself. As regards the allegation of negligence that no treatment for jaundice was given, it was seen from the records that necessary treatment was given and the patient was clinically well. There is no specific treatment for jaundice and only supportive treatment is given which was given to the patient. All the three doctors who treated the patient were specialists themselves with considerable experience and a good professional reputation. All the necessary tests were done in time and repeated a week later to know the progress of the disease. Other specialists were consulted whenever the need arose. When her health started deteriorating after the delivery, the patient was immediately shifted to a tertiary care center. If the complainant felt that no proper treatment was given by the doctors, it was open to the complainant to move the patient to the hospital of their choice.²⁰

ACCEPTED PRACTICES AND PROCEDURES

A healthcare provider is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Accepted practice means practice accepted as proper by the healthcare provider's peers. If the healthcare provider has complied with this practice, then it is a strong evidence that he is not negligent. If he does 11not, then it is likely he will be negligent.²¹ Not taking consent for per rectal insertion of diclofenac suppositories is considered as deficiency in services.²²

CASE STUDY 13

A 34-week pregnant lady developed fever along with perinatal TORCH [toxoplasmosis, other (syphilis, varicella-zoster, parvovirus B19), rubella, cytomegalovirus (CMV), and herpes infections, associated with congenital anomalies] viral infection, which allegedly caused cerebral palsy in the new born. There was 90% permanent mental disability which was certified from AIIMS, which specifically stated that the perinatal viral infection was the cause of this condition. It was alleged that there was negligence in treating perinatal TORCH infection in pregnant lady and fetus, failure to conduct TORCH test, and giving paracetamol for fever instead of proper antiviral medications. The doctor's counsel informed that the patient repeatedly failed to follow the medical advice, refused hospitalization and got admitted in another hospital. Moreover, TORCH test is prescribed only if the mother is suffering from such fever in the first 12 weeks of pregnancy and not 34 weeks of pregnancy. There was intrauterine growth retardation (IUGR) with umbilical cord wound thrice around the newborn's neck resulting in further brain asphyxia and cerebral palsy. Child died later on. NCDRC held no negligence on the part of obstetrician, pediatrician or the hospital in discharging their duties (VK Suri v. Dr Sushma Aggarwal).²³

DEVIATION FROM ACCEPTED PRACTICES

A healthcare provider may be held liable in negligence when he departs from accepted practices. Departure from approved practices is in itself not negligence. If a healthcare provider departs from the approved practice, and is able to justify his actions, then he will not be negligent. But if he cannot justify his departure from the accepted practice, the patient should have little difficulty in establishing negligence.²⁴ The negligent performance of an approved practice will also constitute a departure.

CASE STUDY 14

Retinopathy of prematurity (ROP) due to negligence of neonatologist: In the case of V Krishnakumar v. State of Tamil Nadu, the neonatologist failed in warning parents about high risk of blindness to the child due to oxygen therapy given to prevent hypoxic brain damage in prematurity, and failure to screen out retinopathy during follow-up visits. The court held that not informing important side effects or not referring to the concerned specialist for mandatory screening for ROP amount to deviation from accepted practice and medical negligence on the part of treating doctor. The government hospital was held vicariously liable and the SC directed Tamil Nadu government to pay ₹ 1.72 crore compensation to the parents.²⁵

ACCIDENTS OR MISADVENTURES OR MISHAPS

Courts have held that it would be wrong to say that simply because a misadventure or mishap occurred, the hospital and the doctors are thereby 12liable.²⁶ A healthcare provider is not an insurer; he does not warrant that his treatment will succeed or that he will perform a cure.²⁷ Naturally, he will not be liable if a treatment which in ordinary circumstances would be sound, has unforeseen results. The standard of care which the law requires is not insurance against accident slips. It is not every slip or mistake that imports negligence. Law, for example, recognizes the dangers, which are inherent in induction and maintenance of anesthesia. Mistakes will occur on occasions despite the exercise of reasonable skill and care.²⁸

ERROR OF JUDGMENT

An error of judgment does not of itself amount to negligence.²⁹ Law allows error of judgment which do not by themselves amount to negligence. The House of Lords in England held that some errors of judgment may be negligence and some may not. The error of judgment committed by a healthcare provider may or may not be indicative of negligence, but the proper test to be applied is whether he abided by the standards laid down by his peers (Bolam's Test).

The courts have held “No human being is infallible, and in the present state of science, even the most eminent specialist may be at fault in detecting the true nature of the diseased condition. A practitioner can only be liable in this respect if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the practitioner.”³⁰

With regard to junior healthcare providers “inexperience” is no defense. He must meet the standard of care expected of his rank and status.²¹

INHERENT RISKS OF TREATMENT

Every medical procedure has its own risk factors. Just because one of these factors becomes manifest does not mean that the healthcare provider is negligent and his services are defective. He can be held negligent only when the standard of care exhibited by him falls below the standards expected out of a reasonable prudent healthcare provider practicing under the circumstances he is placed in.²⁶

CASE STUDY 15

In the case of Poonam Mangla v. Prem Nath Hospital, the complainant was seven months pregnant with high blood pressure (170/130). She was advised by the doctor for premature delivery. The condition of the baby deteriorated two days post-delivery. It was a premature baby with infant respiratory distress syndrome (IRDS). There was no incubator available, so the baby was admitted to another hospital where she did not show any improvement despite incubator care, and ultimately expired on the following day. The court held that the doctors cannot be held liable for unfortunate death of neonate. This is a misfortune that in spite best of care, the infant's death occurred as a result of inherent risk of premature newborns developing respiratory failure due to IRDS.³¹13

CHOICE OF TREATMENT—DISCRETION

Many medical problems can be managed or treated in more than one ways. Healthcare providers have the discretion to choose the line of treatment they wish to adopt, and can be faulted for the same only if their choice is “palpably wrong” and/or dangerous to the patient. When there are two genuinely responsible schools of thought about the management of a clinical situation, the courts could do no greater disservice to the community or the advancement of medical science than to place the hallmark of legality upon one form of treatment.³² A healthcare provider is not liable for taking one choice out of two, or for favoring one school rather than another.³³ He is only liable when he falls below the standard of a reasonably competent practitioner in his field. In the realm of diagnosis and treatment, there is ample scope of genuine difference of opinion. A physician clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. If a healthcare provider has followed a course of treatment or procedures accepted by and followed by a responsible section of the profession, he would not be guilty of negligence, even if another section of the profession does not subscribe to that practice and follow a different course.¹⁸ A healthcare provider has discretion in choosing the treatment which he proposes to give to the patient, and such discretion is wider in cases of emergency, but he must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care according to the circumstances of each case.⁸

GUARANTEE AND WARRANTY

Law does not expect healthcare providers to guarantee the end results of their services. In any treatment, it is never claimed by the healthcare provider that every person who receives the treatment must and should be benefited by the same. This is because the benefit of a particular type of therapy depends upon a number of factors which are beyond the control of the healthcare provider.

One type of treatment may not be suitable to one, but may be ideal to another. A patient may respond to one medicine, another may not respond to the same. Merely because the patient was not relieved from the pain, one cannot jump to the conclusion that the therapy is bad, or that the healthcare provider has not given proper treatment. If everyone is benefited by medical science, then nobody will die of disease.

VICARIOUS LIABILITY

Liability which is incurred for or instead of another can be defined as vicarious liability. Every person is responsible for his own acts or omissions, but there are 14circumstances where for the acts committed by a person, the liability comes to lie not on that person, but on someone else. A master is liable for the acts or omissions of his servant, and the principal is accountable for the acts of his agent. The hospital authorities are responsible for the whole of their staff, not only for the nurses and the doctors, but also for the anesthetist and the surgeons. It does not matter whether they are permanent or temporary, resident or visiting, whole-time or part-time. The hospital authority is responsible for all of them. The reason is, even if they are not servants, they are the agents of the hospital to give the treatment. The only exception is the case of consultants and anesthetists selected and employed by the patient himself.³⁴

CASE STUDY 16

In the case of Arunaben Kothari v. Navdeep Clinic, the patient was referred by the surgeon for pre-operative assessment to a cardiologist who took an ECG and declared him fit for surgery. He developed cardiorespiratory arrest during surgery. He was again seen by the same cardiologist but the patient was then dead, and he issued a death certificate. No postmortem was done. The court observed that the cardiologist, in pre-operative check, found BP 150/100 mm Hg and ST changes in anterolateral lead in ECG. As it was not an emergency surgery, further investigations and treatment should have been done before declaring him fit. The anesthetist was also duty bound to assess the patient's condition for anesthesia, and cause of death should have been found by postmortem. The court found the surgeon vicariously liable in selecting the cardiologist and anesthetist of his choice and awarded a compensation of ₹ 4,15,000. The sharing of the liability of the surgeon was 30%, cardiologist 60%, and anesthetist 10%. The clinic was acquitted.³⁵ For nonliability, the hospital or clinic has to prove that it has exercised the highest degree of discretion or judgment in selecting properly qualified and experienced staff.

CASE STUDY 17

Negligence in patient care suffering from toxic epidermal necrolysis: In the case of Balram Prasad v. Kunal Saha, complainant Kunal Saha's wife, a US-based NRI, consulted the doctor after developing skin rashes, which was not considered significant and was advised rest. When the rashes increased, the doctor prescribed Depomedrol injection (80 mg twice daily), a step which was later faulted by medical experts at the apex court. Instead of improving, her condition worsened rapidly after the administration of the steroids. She was admitted to the hospital under the doctor's supervision. As her condition did not improve, she was taken to a hospital in Mumbai in an air ambulance. There diagnosis of toxic epidermal necrolysis was made. She died of complications from steroid overdose after a month. The complainant filed criminal and civil cases against doctors and both hospitals for gross negligence. In March 1999, he filed a petition before the NCDRC demanding ₹ 77 crore from the doctors, hospital, and its directors. The case was dismissed by the NCDRC, but he moved the SC. In 2009, the SC absolved all the doctors and the hospitals of criminal negligence in treatment, which spared them of imprisonment. However, the SC held the three doctors and the hospital culpable to civil liability for medical negligence. 15It redefined medical negligence to include overdose of medicines, not informing patients about side-effects of drugs, not taking extra care in case of diseases having high mortality rate, and hospitals not providing amenities fundamental for patients.

Subsequently, NCDRC fixed the compensation amount of ₹ 1.73 crore on directions by the apex court. In 2013, the SC held the hospital vicariously liable and directed the hospital and three of its doctors to pay an amount of ₹ 5.96 crore as compensation. It was calculated to be ₹ 11.41 crore, as the court ordered that he was entitled to 6% interest on the compensation amount from 1999. The court said out of the total compensation amount, ₹ 10 lakh each to be paid by two doctors and ₹ 5 lakh by the other doctor. The rest of the amount, along with the interest, to be paid by the hospital.³⁶ It is called the “Jackpot Judgment”, as it is the highest penalty paid by any hospital in India till date.

DEFICIENCIES IN STATUTORY REQUIREMENTS

To practice medicine without proper registration with the State Medical Council or the Medical Council of India would violate express provisions of law,³ and employing staff that is unqualified will violate the provisions of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002. Institutions where surgeries are performed under anesthesia must also be registered with the Appropriate Authority under the laws for the time being in force. Ratios of judgments or “precedents” or “authorities” are also applicable and binding on healthcare provider, and violation of the same also constitutes an offense that is actionable.

Lord Justice Denning explained the law on the subject of negligence against doctors and hospitals in the following words: “Before I consider the individual facts, I ought to explain to you the law on this matter of negligence against doctors and hospitals. Mr Marvan Evertt sought to liken the case against a hospital to a motor car accident or to an accident in a factory. That is the wrong approach. In the case of accident on the road, there ought not to be any accident, if everyone used proper care; and the same applies in a factory. But in a hospital, when a person who is ill goes in for treatment, there is always some risk, no matter what care is used. Every surgical operation involves risks. It would be wrong, and indeed bad law, to say that simply because a misadventure or mishap occurred, the hospital and the doctors are thereby liable. It would be disastrous to the community if it were so. It would mean that a doctor examining a patient or a surgeon operating at a table instead of getting on with his work would be forever looking over shoulder to see if someone was coming up with a dagger; for an action for negligence against a doctor is for him like unto a dagger. His professional reputation is as dear to him as his body, perhaps more so, and an action for negligence can wound his reputation as severely as a dagger can his body. You must not, therefore, find him negligent simply because something happens to go wrong. 16If, for instance, one of the risks inherent in an operation actually takes place, or some complication ensues which lessens or takes away the benefits that were hoped for, or if in a matter of opinion the practitioner makes an error of judgment. You should only find him guilty of negligence when he falls short of the standard of a reasonably skillful medical man”.²⁶

REFERENCES

Anil Dutt & Anr. v. Vishesh Hospital & Ors. NCDRC; decided in 2016. Consumer case no. 221 of 2010.

The Consumer Protection Act, 1986. New Delhi: Universal Law Publishing Co.; 2011.

Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.

Mayo Hospital v. Sunil Tiwari, 1997 (3) CPJ 387: 1997 (3) CPR 574 (MP SCDRC).

Blyth V Birmingham Co. 11 Exch 781 784; 1856.

Heustom RFV, Buckley RA. Salmond and Heuston on the law of torts, 19th ed. London: Sweet & Maxwell; 1987.

Poonam Verma v. Ashwin Patel and Ors. Supreme Court. Civil Appeal No. 8856 of 1994, decided in 1996.

Laxman Balkrishna Joshi v. Trimbak Bapu Godbole and Anr; 1969 (1) SCR 206.

Dr L Krishna & Ors. v. BT Sridhar & Anr; First appeal No. 6 of 2009; NCDRC. 2015.

Sathyaprabha Sujathan v. Venniyil Dr Sukumara Pillai Memorial Hospital & Anr. Kerala SCDRC, 2012.

Devinder Singh Gupta v. Dr Vivek Pal. NCDRC, New Delhi. First appeal No. 692 of 2006, decided in 2013.

Mukesh Jain & Ors. v. Dr KL Anand Delhi; SCDRC, decided in 2008.

Sichendra Kumar v. Dr Kiran Kathpalia (HOD) & Ors. Delhi; SCDRC, Delhi. CC No. 1143/2007, decided in 2012.

The Secretary, Government of Tamil Nadu & Ors. v. Kothandaraman Tamil Nadu; SCDRC, Chennai, decided in 2012.

B Jagdish & Anr. v. State of AP & Anr Supreme Court of India, New Delhi. Criminal appeal no. 2049 of 2008.

Manju Anil Chawla v. Jivandhara Hospital II (2014) CPJ 261 (NC). NCDRC; decided in 2013.

Rex v. Bateman 94 LKJ; 1925. p. 791.

AS Mittal v. State of UP. AIR 1989 SC 1570.

Bolam v. Friern Hospital Management Committee. 2 All ER 118; 1957.

K Muniasamy and Anr. v. Harley Rram Nursing Home and Ors. NCDRC; 2007.

Shenoy G, Shenoy GG. Anesthesiology and the law of medical negligence. Ritanjan Publications, 2002.

General Medical Council v. Dr R. 310 BMJ 43; 1995.

VK Suri v. Dr Sushma Aggarwal & Anr. on 13 September, NCDRC; 2012.

Hepworth v. Kerr. 6 Med LR 139; 1995.

V Krishnakumar v. State of Tamil Nadu on 1 July, SC; 2015.

Hatcher v. Black. Times, 2nd July; 1954.

Hunter v. Hanley. SLT. 213; 1955.

17 Nathan PC, Barrowclough AR. Medical negligence. London: Butterworth and Co.; 1957.

Whitehouse v. Jordan. 1 WLR 246; 1981.

Mitchel v. Dicksen. APPD 519; 1954.

Prem Nath Hospital v. Poonam Mangla & Anr., 1998 (2) CPJ 205 (Har. SCDRC).

Moore v. Lewisham Group Hospital Management Committee. Times. 5th February; 1959.

Hucks v. Cole and Anr. 118 NLJ 469; 1968.

Roe v. Minister of Health and Anr. Court of Appeal. 2 QB 66; 1954.

Arunaben D Kothari and Ors. v. Navdeep Clinic and Ors., III (1996) CPJ 605.

Balram Prasad v. Kunal Saha & Ors. Civil appeal No. 2867 of 2012, decided in 2013.

Chapter Notes