MEDICAL NEGLIGENCE CASES - HOSPITALS
Page 1
Adv.C.K.SIVADASAN,
Consultant
– Medico-Legal & Hospital Administration,
Email: cksdas@yahoo.co.in
INDEX
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CASE
|
SUBJECT
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PAGE
|
|
Mrs.
Arpana Dutta vs. Apollo Hospitals
Enterprises: 2002 ACJ 954, AIR 2000 Mad 340, (2000)
IIMLJ 772 (
|
VICARIOUS LIABILITY OF HOSPITALS
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32-36
|
|
Barber vs.
|
TERMINATION OF MEDICAL CONSULTANT
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8
|
|
|
HOSPITAL - INDUSTRY
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12-14
|
|
Barnett vs.
|
NEGLIGENCE
|
10
|
|
Cassidy vs.
Ministry of Health [1951] 2 K.B. 343.
|
CONTRACT OF / FOR SERVICE & VICARIOUS LIABILITY
|
7
|
|
V. Chandrasekhar vs. Appollo Hospitals Enterprises Ltd, rep
by its Chairman, Dr. Prathap C. Reddy (1996) 1 Mad LW 58 (SN) (Madras H C)
|
VICARIOUS LIABILITY OF HOSPITALS
|
23-24
|
|
Charan Singh vs. Healing
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SPEEDY SUMMARY TRIAL
|
36-
|
|
|
HOSPITALS - APPLICABILITY
OF THE ESI ACT
|
37
|
|
Collins vs.
Hertfordshire County Council & Anr. [1947] 1 All E.R. 633
|
MISTAKE IN WRITTEN INSTRUCTION
|
6
|
|
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RELATIONSHIP BETWEEN DOCTOR AND PATIENT IN
HOSPITAL
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19-20
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 2
|
CASE
|
SUBJECT
|
PAGE
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|
Gold &
Ors vs.
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CONTRACT OF SERVICE
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5
|
|
Indian Medical Association vs. V.P. Shantha & Ors (SC of
|
HOSPITALS – SERVICE
|
21-23
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|
Indraprastha
Medical Corporation vs. NCT of
|
HOSPITALS & INDUSTRIAL EMPLOYMENT (STANDING ORDERS) Act.
|
40
|
|
Indraprastha
Medical Corp. Ltd. vs. State NCT of Delhi
& Ors. (2010), Crl. M.C. No. 827/2010,
(
|
CRIMINAL NEGLIGENCE OF HOSPITAL IN MEDICAL NEGLIGENCE
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52-53
|
|
Jacob Mathew vs. State of
|
NEGLIGENCE BY HOSPITALS
|
39
|
|
Josephine
Flanagan vs. Mount
Eden General Hospital LEXSEE (
|
DISCOVERY RULE
|
14
|
|
Kalpnath Rai vs. State, 1998 AIR (SC) 201
|
CRIMINAL
LIABILITY OF THE CORPORATION - TADA
|
29
|
|
V. Kishan Rao vs.
|
APPLICABILITY OF
BOLAM TEST
|
52
|
|
Kusum
Sharma & Ors. vs.
|
NEGLIGENCE
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50-51
|
|
Malay Kumar Ganguly vs. Sukumar Mukherjee & Ors. (Supreme court of India)
(2009) 9 SCC 221
|
STEROIDS IN TREATMENT
|
46
|
|
Martin F.D’Souza vs. Mohd.
Ishfaq, [(2009) 3 SCC 1]
|
PRECAUTIONS BY DOCTORS / HOSPITALS
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44-45
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 3
|
CASE
|
SUBJECT
|
PAGE
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|
M C Mehta
vs. Union of
|
RULE
OF ABSOLUTE LIABILITY
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16
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|
Morgan vs.
Grace Hospital Inc. (
|
DISCOVERY RULE
|
55
|
|
Nizam Institute of Medical
Sciences vs. Prasanth S. Dhananka and Ors.
[2009 (7) SCALE 407]
|
NEGLIGENCE, CONSENT, NEUROFIBROMA
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47-49
|
|
S. Parthasarathi vs. State of
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PROCEDURE
TO BE ADOPTED BY AN ENQUIRY OFFICER
|
12
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|
Pinnamaneni Narasimha Rao vs.
Gundavarapu Jayaprakasu, AIR 1990 AP-HC 207; I (1990) ACC 468; 1990 ACJ 350
|
NEGLIGENCE - ANAESTHETIST , SURGEON & HOSPITAL
|
17-19
|
|
P.G.Inst.of Medical
Education vs. Jaspal Singh & Ors. (SC of
|
NEGLIGENCE
|
45-46
|
|
Quinton vs.
|
DISCOVERY RULE
|
36
|
|
R vs. Yogasa
Karan [1990] 1 NZLR 399, (
|
RESPONSIBILITY OF HOSPITALS
|
17
|
|
Rylands
vs. Fletcher (1868) LR 3 HL 330
|
RULE OF STRICT
LIABILITY
|
5
|
|
Savita Garg (Smt.) vs.
Director, National Heart Institute, IV (2004) CPJ
40 (SC)
|
RESPONSIBILITY OF HOSPITAL
|
37-38
|
|
Scott vs.
London St.Katherine Docks Co. [(1865) 3 H C. 596]
|
CARELESSNESS
|
5
|
|
Sidaway vs.
|
INFORMED CONSENT
|
15
|
|
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ABDOMINAL PAD LEFT INSIDE
|
53-55
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 4
|
CASE
|
SUBJECT
|
PAGE
|
|
|
DERELICTION OF DUTY, PARENTS OF CHILD “CONSUMER”
|
27-28
|
|
Standard Chartered Bank vs. Directorate of Enforcement, 2005 SCC
(Cri.) 961, SC
|
CRIMINAL LIABILITY OF THE CORPORATION
|
38-39
|
|
Standard Chartered Bank Vs. Vinay Kumar
Sood & Ors, 2009 (1) JCC 756
|
CRIMINAL LIABILITY OF THE CORPORATION
|
49
|
|
State of
|
PROCEDURE
TO BE ADOPTED BY AN ENQUIRY OFFICER
|
10-11
|
|
State of
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HOSPITAL
- INDUSTRY
|
8-9
|
|
State of
|
PROCEDURE
TO BE ADOPTED BY AN ENQUIRY OFFICER
|
44
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|
Prof.
P.N. Thakur And Anr. vs. Hans Charitable Hospital And Ors. (Consumer Disputes
Redressal Commission): III (2007) CPJ 340 NC
|
UNQUALIFIED PHYSICIAN IN HOSPITAL
& LACK OF COORDINATION
|
42-43
|
|
Vishaka
& Ors vs. State of Rajasthan
& Ors, Supreme Court of India on 13 August, 1997
|
SEXUAL HARASSMENT AT WORKPLACE
|
24-27
|
|
Wilsher vs.
|
INJURY BY NEGLIGENCE
|
16
|
|
Mr
‘X’ vs. Hospital ‘Z’, AIR 1999 SC 495,
JT 1998 (7) SC 626, 1998 (6) SCALE 230
|
DISCLOSURE OF AIDS
DIAGNOSIS
|
29-32
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|
|
|
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Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 5
Cases in chronological order of verdict.
(CARELESSNESS)
Scott vs. London St.Katherine
Docks Co.; [(1865) 3 H C. 596]
Where the
thing is shown to be under the management of the defendant or his servants, and
the accident is such as in the ordinary course of things does not happen if
those who have the management, use, proper care, it affords reasonable
evidence, in the absence of explanation by the defendants, that the accident
arose from want of care.
(RULE OF STRICT LIABILITY)
Rylands
vs. Fletcher (1868) LR 3 HL 330
If a person brings
or accumulates on his land anything which, if it should escape may cause damage
to his neighbours, he does so at his peril. If it does escape and cause damage
he is responsible, however, careful he may have been, and whatever precaution
he may have to prevent the damage.
(CONTRACT OF SERVICE)
Gold & Ors. vs. Essex County Council; [1942] 2 All E.R.237
The infant
plaintiff was treated by a radiographer, an employee of the respondents at one
of their county hospitals. By reason of his failure to provide adequate
screening material in giving Grenz-ray treatment the infant plaintiff suffered
injury to her face. It was proved that the radiographer was fully competent to
administer the treatment given to the infant plaintiff. However, it was held
that as the radiographer was under a contract of service of the respondents,
they were liable for his negligence under the doctrine of respondeat superior. It was further held that if a local authority
had exercised power under the Public Health Act, 1936, the obligation
undertaken is an obligation to treat and the authority is liable if the person
employed by it to perform the obligation on its behalf acts without due care.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 6
(MISTAKE IN WRITTEN INSTRUCTION)
Collins vs.
Hertfordshire County Council & Anr. [1947] 1 All E.R. 633
While undergoing an operation, a patient in a
county council hospital was killed by an injection of cocaine which was given
by the operating surgeon in the mistaken belief that it was procaine. The
operating surgeon had ordered procaine on the telephone, but the resident house
surgeon (who was then unqualified) had mis-heard “procaine” as “cocaine”, and
had told the pharmacist to dispense a mixture which was, in fact, lethal. The
pharmacist dispensed the mixture without making further inquiry and without
requiring the written instruction of a qualified person, and the operating
surgeon had given the injection without checking that it was what he had
ordered. The operating surgeon, the house surgeon, and the pharmacist were all
three in the full-time or part-time employment of the council. In an action by
the patient’s widow against the county council and the operating surgeon
alleging that the death was the result of (a) the council’s negligence in the
conduct of their hospital, and (b) the operating surgeon’s failure to exercise
reasonable care.
(i) The county
council, in managing the hospital, was permitting a dangerous and negligent
system to be in operation, and the operating surgeon and the house surgeon had
failed to exercise reasonable skill and care.
(ii) The
council were able to control the manner in which the resident medical officer
performed her work and, therefore, the acts of the house surgeon done in the
course of her employment were acts for which the council was responsible,
(iii) Although
the operating surgeon was a part-time employee on the staff of the council, the
council could not control how he was to perform his duties and was not responsible
for his want of care.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 7
(CONTRACT OF / FOR SERVICE & VICARIOUS LIABILITY)
Cassidy vs. Ministry
of Health; [1951] 2 K.B. 343.
The plaintiff entered a hospital for an operation
on his left hand, which necessitated post-operational treatment. While undergoing
that treatment he was under the care of the surgeon who performed the
operation, who was a whole-time assistant medial officer of the hospital, the
house surgeon and members of the nursing staff of the hospital, all of whom
were employed under contracts of service. At the end of the treatment it was
found that his hand had been rendered useless - went in with 2 stiff fingers
& came out with 4 stiff fingers.
Authorities who run a hospital,
be they local authorities, government boards or any other corporation, are in
law under the self same duty as the humblest doctor; whenever they accept a
patient for treatment, they must use reasonable care and skill to cure him of
his ailment. The hospital authorities cannot, of course, do it by themselves:
they have no ears to listen through the stethoscope, and no hands to hold the
surgeon’s knife. They must do it by the staff which they employ; and if their
staff are negligent in giving the treatment, they are just as liable for that
negligence as is anyone else who employs others to do his duties for him. What
possible difference in law, I ask, can there be between hospital authorities
who accept a patient for treatment, and railway or shipping authorities who
accept a passenger for carriage? None whatever. Once they undertake the task,
they come under a duty to use care in the doing of it, and that is so whether
they do it for reward or not. It is no answer for them to say that their staff
are professional men and women who do not tolerate any interference by their
lay masters in the way they do their work. The reason why the employers are
liable in such cases is not because they can control the way in which the work
is done, they often have not sufficient knowledge to do so but because they
employ the staff and have chosen them for the task and have in their hands the
ultimate sanction for good conduct, the power of dismissal.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 8
(TERMINATION OF MEDICAL CONSULTANT)
Barber vs. Manchester Hospital
(HOSPITAL - INDUSTRY)
State of Bombay
The services of respondents 2 and 3, engaged as ward
servants in the J. J. Group Of Hospital, Bombay, under State control and
management were retrenched without payment of compensation as required by S.
25F(b) of the Industrial Disputes Act, 1947.
The
decision of this question depends upon the interpretation of the definition of
industry prescribed by S. 2(j) of the
Act. which, provides that “industry” means any business, trade, undertaking,
manufacture or calling of employers and includes any calling, service,
employment, handicraft, or industrial occupation or avocation of workmen. It
would be noticed that the words used in the definition are very wide in their
import and even so its latter part purports to provide an inclusive definition.
The word “undertaking” according to Webster means “anything undertaken; any business,
work or project which one engages in or attempts, an enterprise”. Similarly, “trade”
according to Halsbury, in its primary meaning, is “exchange of goods for goods
or goods for money”, and in its secondary meaning it is “any business carried
on with a view to profit whether manual or mercantile, as distinguished from
the liberal arts or learned professions and from agriculture”; whereas “business”
is a wider term not synonymous with trade and means practically “anything which
is an occupation as distinguished from a pleasure”. The word calling “again is
very wide; it means one’s usual occupation, vocation, business or trade”; so is
the word “service” very wide in its import. Prima facie, if the definition has
deliberately used words of such wide import, it would be necessary to read
those words in their wide denotation; and so read, Hospitals cannot be excluded
from the definition.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 9
We have
yet to decide which are the attributes the presence of which makes an activity
an under taking within S. 2(j), on the ground that it is analogous to trade or
business. It is difficult to state these possible, attributes definitely or
exhaustively; as a working principle it may be stated that an activity
systematically or habitually undertaken for the production or distribution of
goods or for the rendering of material services to the community at large or a
part of such community with the help of employees is an undertaking. Such an
activity generally involves the co-operation of the employer and the employees;
and its object is the satisfaction of material human needs. It must be organized
or arranged in a manner in which trade or business is generally organized or
arranged. It must not be casual nor must it be for oneself nor for pleasure.
Thus the manner in which the activity in question is organized or arranged, the
condition of the co-operation between employer and the employee necessary for
its success and its object to render material service to the community can be
regarded as some of the features which are distinctive of activities to which S.
2(j) applies. Judged by this test there would be no difficulty in holding that
the State is carrying on an undertaking when it runs the group of Hospitals in
question. Is quid pro quo necessary for bringing an activity under S. 2(j)? It
has been urged before us that though profit motive may not be essential, it is
nevertheless necessary that the person who carries on the activity should
receive some consideration in return; and it is only if the test of quid pro
quo is satisfied that an activity should be treated as an undertaking. Though
this argument is put in a slightly different form, in substance it is really
based on the idea that profit motive is necessary to make any activity an
undertaking analogous to trade or, business. If the absence of profit motive is
immaterial why should an activity be excluded from S. 2(j) merely because the
person responsible for the conduct of the activity expects no consideration,
does not want any quid pro quo and is actuated by philanthropic or charitable
motive? In our opinion, in deciding the question as to whether any activity in
question is an undertaking under S. 2(j) the doctrine of quid pro quo can have
no application.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 10
(NEGLIGENCE)
Barnett vs. Chelsea & Kensington Hospital
Three men
attended at the emergency department but the casualty officer, who was himself unwell, did
not see them, advising that they should go home and call their own doctors. One
of the men died some hours later. The post mortem showed arsenical poisoning
which was a rare cause of death. Even if the deceased had been examined and
admitted for treatment, there was little or no chance that the only effective
antidote would have been administered to him in time. Although the hospital had
been negligent in failing to examine the men, there was no proof that the
deceased’s death was caused by that negligence.
(PROCEDURE TO BE ADOPTED BY AN
ENQUIRY OFFICER)
State of Assam
A
perusal of the report of the Enquiry Officer, in the proceedings before us,
shows that there is absolutely no reference to any data or material, if any,
collected by him when he consulted the Deputy Superintendent of
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 11
Police,
Anti-Corruption Branch on July 14 and 15, 1958. But, we have to state that it
is highly improper for an Enquiry Officer during the conduct of an enquiry to
attempt to collect any materials from outside sources and not make that
information, so collected, available to the delinquent officer and further make
use of the same in the enquiry proceedings. There may also be cases where a
very clever and astute enquiry officer may collect outside information behind
the back of the delinquent officer and, without any apparent reference to the
information so collected, may have been influenced in the conclusions recorded
by him against the delinquent officer concerned. If it is established that the
material behind the back of the delinquent officer has been collected during
the enquiry and such material has been relied on by the Enquiry Officer,
without its having been disclosed to the delinquent officer, it can be stated
that the enquiry proceedings are vitiated. It was, under such circumstances,
that this Court, in Executive Committee of U.P. State Warehousing Corporation
vs. Chandra Kiran Tyagi, accepted
the view of the High Court that the enquiry proceedings were vitiated by the
Enquiry Officer collecting information from outside sources and utilising the
same in his findings recorded against the delinquent officer without disclosing
that information to the accused officer. It was, again, under similar circumstances
that this Court in Sanawarmal Purohit case upheld the order of the High Court
holding the enquiry proceedings to be contrary to the principles of natural
justice when the Enquiry Officer had collected information from third parties
and acted upon the information so collected, without disclosing the same to the
accused. If the disciplinary authority himself had been also the Enquiry
Officer and, during the course of the enquiry he had collected materials behind
the back of the accused and used such materials without disclosing the same to
the officer concerned, the position will be still worse and the mere fact that
such an order passed by the disciplinary authority had even been confirmed by
an Appellate Authority without anything more, will not alter the position in
favour of the department.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 12
(PROCEDURE TO BE ADOPTED BY AN
ENQUIRY OFFICER)
S. Parthasarathi vs. State of A.P.
The decision of
this Court in the State of Uttar
Pradesh
(HOSPITAL
AS PER INDUSTRIAL DISPUTES Act.)
‘Industry’,
as defined in Sec, 2 (j) has a wide import.
(a)
Where (i) systematic activity, (ii) organized by co- operation between employer
and employee, (the direct and substantial element is chimerical) (iii) for the
production and/or distribution of goods and services calculated to satisfy
human wants and wishes (not spiritual or religious but inclusive of material
things or services geared to, celestial bliss e.g. making, on a large scale,
prasad or food), prima facie, there is an ‘industry’ in that enterprise.
(b)
Absence of profit motive or gainful objective is irrelevant, be the venture in
the public, joint private or other sector.
(c) The
true focus is functional and the decisive test is the nature of the activity
with special emphasis on the employer-employee relations.
(d) If
the Organisation is a trade or business, it does not cease to, be one because
of philanthropy animating the undertaking.
Although
sec. 2(j) uses, words of the widest amplitude in its two limbs, their meaning
cannot be magnified to overreach itself.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 13
‘Undertaking’
must suffer a contextual and associational shrinkage, so also, service, calling
and the like. This yields the inference that all organized activity possessing
the triple elements, although not trade or business, may still be ‘industry’
(provided the nature of the activity, viz. the employer-employee basis, bears
resemblance to what we find in trade or business. This takes into the- fold of ‘industry’
undertakings, callings and services adventure ‘analogous to the carrying on of
trade or business’. All features, other than the methodology of carrying on the
activity viz. in organizing the co-operation between employer and employee may
be dissimilar. It does not matter, if off the employment terms there is
analogy.
Application
of these guidelines should not stop short of their logical reach by invocation
of creeds, cults or inner sense of incongruity or other sense of motivation for
or resultant of the economic operations. The ideology of the Act being
industrial peace, regulation and resolution of industrial disputes between
employer and workmen, the range of this statutory ideology must inform the
reach of the statutory definition. Nothing less, nothing more. (a) The consequences
are (i) professions, (ii) Clubs (iii) educational institutions (iiia)
co-operatives, (iv) research institutes (v) charitable projects and (vi) other
kindred adventures, if they fulfill the triple tests listed, cannot be exempted
from the scope of sec. 2 (j).
These are words of
wide import as wide as the legislature could have possibly made them. The first
question which has engaged the attention of every court which is called upon to
consider whether a particular activity is ‘industry’ is whether, the definition
should be permitted to have its full sway embracing within its wide sweep every
activity which squarely falls within its terms or whether, some limitation
ought not be read into the definition so as to restrict its, scope as
reasonably as one may, without doing violence to the supposed intention of the
legislature. An attractive argument based on a well- known principle of
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 14
statutory
interpretation is often advanced in support of the latter view. That principle
is known as ‘noscitur a sociis’ by
which is meant that associated words take their meaning from one another. That
is to say, when two or more words which are susceptible of analogous meaning
are coupled together, they take their colour from each other so that the width
of the more general words may square with that of words of lesser generality. An
argument based on this principle was rejected by Gajendragadkar, J., while
speaking on behalf of the Court, in State of Bombay and Ors. vs. The Hospital Mazdoor Sabha and Ors. A
group of five hospitals called the J. J. Hospital ,
Bombay
(DISCOVERY RULE)
Josephine Flanagan vs.
Mount Eden General Hospital LEXSEE (New York
The
application of the rule of Discovery was considered in the background of fact
that during the course of operation done on 14.7.1958, surgical clamps were
inserted in the plaintiff’s body. In 1966, the plaintiff consulted a doctor
because she experienced severe pain in the region of her abdomen. The doctor
told her that surgical clamps were discovered by X- ray analysis. Thereafter,
another operation was performed to remove the clamps. The defendants sought
dismissal of the complaint on the ground that the same was barred by time. The
Court referred to the Discovery Rule and observed: The so-called discovery rule
employed in foreign object medical malpractice cases is in compatible harmony
with the purpose for which Statutes of Limitation were enacted and strikes a
fair balance in the field of medical malpractice. The unsoundness of the
traditional rule, as applied in the case where an object is discovered in the
plaintiff's body, is patent. It
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 15
simply places
an undue strain upon common sense, reality, logic and simple justice to say
that a cause of action had ‘accrued’ to the plaintiff until the X-ray
examination disclosed a foreign object within her abdomen and until she had
reasonable basis for believing or reasonable means of ascertaining that the
foreign object was within her abdomen as a consequence of the negligent
performance of the operation. In the case before us, the danger of belated,
false or frivolous claims is eliminated. In addition, plaintiff’s claim does
not raise questions as to credibility nor does it rest on professional
diagnostic judgment or discretion. It rests solely on the presence of a foreign
object within her abdomen. The policy of insulating defendants from the burden
of defending stale claims brought by a party who, with reasonable diligence,
could have instituted the action more expeditiously is not a convincing
justification for the harsh consequences resulting from applying the same
concept of accrual in foreign object cases as is applied in medical treatment
cases. A clamp, though immersed within the patient’s body and undiscovered for
a long period of time, retains its identity so that a defendant’s ability to
defend a stale claim is not unduly impaired. Therefore, where a foreign object
has negligently been left in the patient’s body, the Statute of Limitations
will not begin to run until the patient could have reasonably discovered the
malpractice.
(INFORMED
CONSENT)
Sidaway vs. Bethlem Royal Hospital
The claimant developed paraplegia after the spinal operation.
Before surgery neurosurgeon took her consent for cervical cord decompression,
but did not include in his explanation the fact that in less than 1% of the
cases. Rejecting her claim for damages, the court held that consent did not
require an elaborate explanation of remote side effects. In dissent, Lord Scarmann
said that the Bolam principle should not apply to the issue of informed consent
and that a doctor should have a duty to tell the patient of the inherent and
material risk of the treatment proposed.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 16
(RULE OF ABSOLUTE LIABILITY)
M C Mehta
vs. Union of India
We are of the view
that an enterprise, which is engaged in hazardous or inherently dangerous
materials, which poses a potential threat to the health and safety of the
person working with it or in the surrounding areas owes absolute and non-
delegatable duty to the community to ensure that no harm results to anyone on
account of hazardous or inherently dangerous activity which it has undertaken.
The enterprise must be held to be under an obligation to provide that the
hazardous or inherently dangerous activity in which it is engaged must be
conducted with the highest standards of safety and if any harm results on
account of such activity the enterprise must be absolutely liable to compensate
for such harm and it should be no answer to enterprise to say that it has taken
all reasonable care and that the harm occurred without any negligence on its
part.
(INJURY BY NEGLIGENCE)
Wilsher vs. Essex Area Health Authority; [1988] AC 1074
The defendant hospital, initially acting through an
inexperienced junior doctor, negligently administered excessive oxygen during
the post-natal care of a premature child who subsequently became blind. If it
is established that conduct of a certain kind materially adds to the risk of
injury, if the defendant engages in such conduct in breach of a common law duty,
and if the injury is the kind to which the conduct related, then the defendant
is taken to have caused the injury even though the existence and extent of the
contribution made by the breach cannot be ascertained.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 17
(RESPONSIBILITY OF HOSPITALS)
R vs.
Yogasa Karan; [1990] 1 NZLR 399, (New Zealand
The hospital
is in a better position to disclose what care was taken or what medicine was
administered to the patient. It is the duty of the hospital to satisfy that
there was no lack of care or diligence. The hospitals are institutions, people
expect better and efficient service, if the hospital fails to discharge their
duties through their doctors, being employed on job basis or employed on
contract basis, it is the hospital which has to justify and not impleading a
particular doctor will not absolve the hospital of its responsibilities.
(NEGLIGENCE – ANAESTHETIST, SURGEON & HOSPITAL)
Pinnamaneni
Narasimha Rao vs. Gundavarapu
Jayaprakasu, AIR
1990 AP-HC 207; I (1990) ACC 468; 1990
ACJ 350
The plaintiff was admitted in the Government General Hospital,
Guntur for a minor ailment - chronic nasal discharge and the second defendant
Dr. P. Narasimha Rao, E.N.T. Surgeon who performed the tonsillectomy operation.
The third defendant Dr. S. Shankar Rao was the Chief Anaesthetist of the
Hospital. The first defendant is the Government of Andhra Pradesh represented
by the District Collector, Guntur
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 18
One glaring feature of this
case clearly suggestive of the recklessness of the Anaesthetist, was his
failure to maintain any record of either the condition of the patient or the
level of anaesthesia and what anaesthetics were administered. The names of
drugs reeled out in his evidence and the dosages were all based on his memory.
The evidence of the anaesthetist that the pulse returned to normalcy after the
resuscitation and, therefore, he asked the Surgeon to proceed with the
operation is clearly an after thought. If cardiac arrest has occurred, in any
case where cardiac arrest is not deliberately produced, then it is better to
postpone the operation. Tonsillectomy is an elective operation. In the sequence
of the events that occurred, viz., shallow respiration, respiratory arrest,
pulse abnormality and immediate external compression of the chest, the inherent
probability of cerebral anoxia is present. Prudence may dictate that following
the above sequence of events cerebral anoxia be expected by the doctors in
charge of the patient.
Adjudged
in the light of the legal principles referred and from the evidence available
on record, it is clear that both the Surgeon and the Anaesthetist have failed
to exercise reasonable care. There has been breach of duty on the part of the
Anaesthetist by reason of his failure, an act per se negligence in the
circumstances, to administer respiratory resuscitation by oxygenating the
patient with a mask or bag. He exposed the plaintiff to the room temperature
for about three minutes and this coupled with his failure to administer fresh
breathes of oxygen before the tube was removed from the mouth of the plaintiff
had resulted in respiratory arrest: these are foreseeable factors. There is
proximate connection between the Anaesthetist’s conduct and the resultant
injury - cerebral anoxia. The learned
trial judge very rightly recorded the finding after evaluating the evidence
that: “The endotracheal tube that was inserted into the trachea of the
plaintiff was removed by the third defendant for no valid reasons and that too
without taking the minimum precaution of giving a few breaths of pure oxygen to
the patient before extubation. There was avoidable delay in inserting the tube
again for the second time to give oxygen to the plaintiff when the respiratory
arrest occurred..... the respiratory arrest that ultimately led to cerebral
anoxia was the result of the negligence on the part of the third defendant in
adopting faulty techniques of induction and maintenance of anaesthesia.”
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 19
Dr.
Narasimha Rao, the second defendant failed in his duty to conform to the
standard of conduct expected of an ordinary surgeon although he is an
experienced specialist. Without bothering to verify the state of plaintiff he
started and completed the operation despite the fact that tonsillectomy was an
elective operation. Had he not proceeded with the operation there was every
possibility of the plaintiff being saved from the brain damage sustained by
him. Both the defendants 2 and 3 are guilty of negligence. Despite being
specialists in their respective fields defendants 2 and 3 have failed to
exercise that much of care and caution which an ordinary practitioner of their
standard would have exercised in similar circumstances. As the injury sustained
by the plaintiff was due to the negligence of defendants 2 and 3 who at the
relevant time were the employees of the first defendant, the Government of
Andhra Pradesh, the latter is vicariously liable.
(RELATIONSHIP
BETWEEN DOCTOR AND PATIENT IN HOSPITAL)
Mr. G.P. Nair was admitted in the appellant
hospital on September 7, 1989 with persistent back pain. The ailment was
initially diagnosed in the hospital as tuberculosis and treatment was started
on that basis. It is alleged that in the course of said treatment, the patient
exhibited other symptoms on the basis of which it was later diagnosed to be a
case of jaundice and in view thereof he was treated in the hospital for that
condition by one Dr. P.P. Joseph. It would appeal that the condition of the
patient progressively grew worse and hence on September 17, 1989 he was
referred to the Gastro Enterology Department of the Medical College
Hospital
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 20
We note
that there are some passing observations in the orders passed by the State
Commission which indicate an inclination on the part of the State Commission to
adopt the view that whenever a patient is admitted into a hospital there is
automatically a hiring by him of the service not merely of the hospital but
also of every doctor who happens to treat him there. In order that there should
be an arrangement of hiring of service, there should be the requisite privity
between the person who hires the service and the one whose services are hired.
It is a question of fact to be determined on the evidence adduced in each case
whether such a privity did exist as between the patient and the individual
doctors who might have treated him while he was an in patient in the hospital.
The question as to the existence of such privity has to be examined in each
case where a complaint is made not only against the hospital but also against
doctors who may be on the staff of the hospital and may have attended on the
patient in that capacity as well as against any consultants who might have been
called in from outside by the concerned hospital for seeing and treating the
patient. The matter may assume a different complexion in cases where a hospital
merely provides paramedical and other infrastructural facilities and the
patient is allowed to be treated by a doctor of his own choice called from
outside.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 21
(HOSPITALS – SERVICE)
Indian Medical Association vs. V.P. Shantha &
Ors; 1996 AIR 550, 1995 SCC (6) 651
(1) Service
rendered to a patient by a medical practitioner (except where the doctor
renders service free of charge to every patient or under a contract of personal
service), by way of consultation, diagnosis and treatment, both medicinal and
surgical, would fall within the ambit of ‘service’ as defined in Section 2(1)
(o) of the Consumer Protection Act.
(2) The fact
that medical practitioners belong to the medical profession and are subject to
the disciplinary control of the Medical Council of India and/or State Medical
Councils constituted under the provisions of the Indian Medical Council Act would
not exclude the services rendered by them from the ambit of the Act.
(3) A
‘contract of personal service’ has to be distinguished from a ‘contract for
personal services’. In the absence of a relationship of master and servant
between the patient and medical practitioner, the service rendered by a medical
practitioner to the patient cannot be regarded as service rendered under a
‘contract of personal service’. Such service is service rendered under a
‘contract for personal services’ and is not covered by exclusionary clause of
the definition of ‘service’ contained in Section 2(1) (o) of the Act.
(4) The
expression ‘contract of personal service’ in Section 2(1) (o) of the Act cannot
be confined to contracts for employment of domestic servants only and the said
expression would include the employment of a medical officer for the purpose of
rendering medical service to the employer. The service rendered by a medical
officer to his employer under the contract of employment would be outside the
purview of ‘service’ as defined in Section 2(1) (o) of the Act.
(5) Service
rendered free of charge by a medical practitioner attached to a
hospital/Nursing home or a medical officer employed in a hospital/Nursing home
where such services are rendered free of charge to everybody, would not be
‘service’ as defined in Section 2(1) (o) of the Act. The payment of a token
amount for registration purpose only at the hospital/nursing home would not
alter the position.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 22
(6) Service
rendered at a non-Government hospital/Nursing home where no charge whatsoever
is made from any person availing the service and all patients (rich and poor)
are given free service - is outside the purview of the expression ‘service’ as
defined in Section 2(1) (o) of the Act. The payment of a token amount for
registration purpose only at the hospital/Nursing home would not alter the
position.
(7) Service
rendered at a non-Government hospital/Nursing home where charges are required
to be paid by the persons availing such services falls within the purview of
the expression ‘service’ as defined in Section 2(1) (o) of the Act.
(8) Service
rendered at a non-Government hospital/Nursing home where charges are required
to be paid by persons who are in a position to pay and persons who cannot
afford to pay are rendered service free of charge would fall within the ambit
of the expression ‘service’ as defined in Section 2(1) (o) of the Act
irrespective of the fact that the service is rendered free of charge to persons
who are not in a position to pay for such services. Free service, would also be
‘service’ and the recipient a ‘consumer’ under the Act.
(9) Service
rendered at a Government hospital/health centre/dispensary where no charge
whatsoever is made from any person availing the services and all patients (rich
and poor) are given free service - is outside the purview of the expression
‘service’ as defined in Section 2(1) (o) of the Act. The payment of a token
amount for registration purpose only at the hospital/nursing home would not
alter the position.
(10) Service
rendered at a Government hospital/health centre/dispensary where services are
rendered on payment of charges and also rendered free of charge to other
persons availing such services would fall within the ambit of the expression
‘service’ as defined in Section 2(1) (o) of the Act irrespective of the fact
that the service is rendered free of charge to persons who do not pay for such
service. Free service would also be ‘service’ and the recipient a ‘consumer’
under the Act.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 23
(11) Service
rendered by a medical practitioner or hospital/nursing home cannot be regarded
as service rendered free of charge, if the person availing the service has
taken an insurance policy for medical care whereunder the charges for
consultation, diagnosis and medical treatment are borne by the insurance
company and such service would fall within the ambit of ‘service’ as defined in
Section 2(1) (o) of the Act.
(12)
Similarly, where, as a part of the conditions of service, the employer bears
the expenses of medical treatment of an employee and his family members
dependent on him, the service rendered to such an employee and his family
members by a medical practitioner or a hospital/nursing home would not be free
of charge and would constitute ‘service’ under Section 2(1) (o) of the Act.
(VICARIOUS LIABILITY OF
HOSPITALS)
V. Chandrasekhar vs. Appollo Hospitals Enterprises Ltd, (1996) 1 Mad LW 58 (SN) (Madras
Now
large number of private hospitals, nursing homes and clinics have emerged. In
view of the good reputation they have built, patients go there for treatment in
large numbers. These hospitals provide the medical treatment to those patients
through doctors employed by them or by doctors who work there on some
arrangement. These hospitals raise the bills for the medical treatment provided
to those patients. In the circumstances, if the patient suffers injury due to
negligence of the doctors provided in those negligence, the hospitals would be
equally liable for damages, on the principles of vicarious liability or on the
principles analogous to vicarious liability. When these hospitals provide these
doctors to the patients and when they make the bill and collect the fees for
the medical treatment given in those hospitals, these hospitals cannot shove of
their responsibility and liability to pay compensation for the damages suffered
by the patients due to the negligence to the doctors provided by these very
hospitals.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 24
(SEXUAL
HARASSMENT AT WORKPLACE)
Vishaka
& Ors vs. State of Rajasthan &
Ors, Supreme Court of India on 13 August, 1997
In the
absence of enacted law to provide for the effective enforcement of the basic
human right of gender equality and guarantee against sexual harassment and
abuse, more particularly against sexual harassment at work places, we lay down
the guidelines and norms specified hereinafter for due observance at all work
places or other institutions, until a legislation is enacted for the purpose.
This is done in exercise of the power available under Article 32 of the
Constitution for enforcement of the fundamental rights and it is further
emphasised that this would be treated as the law declared by this Court under
Article 141 of the Constitution. The GUIDELINES and NORMS prescribed herein are
as under:-
It is
necessary and expedient for employers in work places as well as other
responsible persons or institutions to observe certain guidelines to ensure the
prevention of sexual harassment of women:
1. Duty
of the Employer or other responsible persons in work places and other
institutions:
It
shall be the duty of the employer or other responsible persons in work places
or other institutions to prevent or deter the commission of acts of sexual
harassment and to provide the procedures for the resolution, settlement or
prosecution of acts of sexual harassment by taking all steps required.
2.
Definition:
For
this purpose, sexual harassment includes such unwelcome sexually determined
behaviour (whether directly or by implication) as:
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 25
a)
physical contact and advances;
b) a
demand or request for sexual favours;
c)
sexually coloured remarks;
d)
showing pornography;
e) any
other unwelcome physical verbal or non-verbal conduct of sexual nature.
Where
any of these acts is committed in circumstances where under the victim of such
conduct has a reasonable apprehension that in relation to the victim’s
employment or work whether she is drawing salary, or honorarium or voluntary,
whether in government, public or private enterprise such conduct can be
humiliating and may constitute a health and safety problem. It is
discriminatory for instance when the woman has reasonable grounds to believe
that her objection would disadvantage her in connection with her employment or
work including recruiting or promotion or when it creates a hostile work
environment. Adverse consequences might be visited if the victim does not
consent to the conduct in question or raises any objection thereto.
3.
Preventive Steps:
All
employers or persons in charge of work place whether in the public or private
sector should take appropriate steps to prevent sexual harassment. Without
prejudice to the generality of this obligation they should take the following
steps:
(a)
Express prohibition of sexual harassment as defined above at the work place
should be
notified,
published and circulated in appropriate ways.
(b) The
Rules/Regulations of Government and Public Sector bodies relating to conduct
and discipline should include rules/regulations prohibiting sexual harassment
and provide for appropriate penalties in such rules against the offender.
(c) As
regards private employers steps should be taken to include the aforesaid
prohibitions in the standing orders under the Industrial Employment (Standing
Orders) Act, 1946.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 26
(d)
Appropriate work conditions should be provided in respect of work, leisure,
health and hygiene to further ensure that there is no hostile environment
towards women at work places and no employee woman should have reasonable
grounds to believe that she is disadvantaged in connection with her employment.
4.
Criminal Proceedings: Where such conduct amounts to a specific offence under
the Indian Penal Code or under any other law the employer shall initiate
appropriate action in accordance with law by making a complaint with the
appropriate authority. In particular, it should ensure that victims, or
witnesses are not victimized or discriminated against while dealing with
complaints of sexual harassment. The victims of sexual harassment should have
the option to seek transfer of the perpetrator or their own transfer.
5.
Disciplinary Action: Where such conduct amounts to mis-conduct in employment as
defined by the relevant service rules,
appropriate disciplinary action should be initiated by the employer in
accordance with those rules.
6.
Complaint Mechanism: Whether or not such conduct constitutes an offence under
law or a breach of the service rules, an appropriate complaint mechanism should
be created in the employer’s organization for redress of the complaint made by
the victim. Such complaint mechanism should ensure time bound treatment of
complaints.
7.
Complaints Committee: The complaint mechanism, referred to in (6) above, should
be adequate to provide, where necessary, a Complaints Committee, a special
counsellor or other support service, including the maintenance of
confidentiality. The Complaints Committee should be headed by a woman and not
less than half of its member should be women. Further, to prevent the
possibility of any under pressure or influence from senior levels, such
Complaints Committee should involve a third party, either NGO or other body who
is familiar with the issue of sexual harassment. The Complaints Committee must
make an annual report to the government department concerned of the complaints
and action taken by them. The employers and person in charge will also report
on the compliance with the aforesaid guidelines including on the reports of the
Complaints Committee to the Government department.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 27
8.
Worker’s Initiative: Employees should be allowed to raise issues of sexual
harassment at workers meeting and in other appropriate forum and it should be
affirmatively discussed in Employer-Employee Meetings.
9.
Awareness: Awareness of the rights of female employees in this regard should be
created in particular by prominently notifying the guidelines (and appropriate
legislation when enacted on the subject) in suitable manner.
10.
Where sexual harassment occurs as a result of an act or omission by any third
party or outsider, the employer and person in charge will take all steps
necessary and reasonable to assist the affected person in terms of support and
preventive action.
11. The
Central/State Governments are requested to consider adopting suitable measures
including legislation to ensure that the guidelines laid down by this order are
also observed by the employers in Private Sector.
12.
These guidelines will not prejudice any rights available under the Protection
of Human Rights Act, 1993.
Accordingly, we direct that the
above guidelines and norms would be strictly observed in all work places for
the preservation and enforcement of the right to gender equality of the working
women. These directions would be binding and enforceable in law until suitable
legislation is enacted to occupy the field.
(DERELICTION OF DUTY & PARENTS OF CHILD “CONSUMER”)
Spring Medows Hospital & Another vs. Harjol Ahluwalia thr’ K.S. Ahluwalia &
Anr, [(1998) 4 SCC 39]
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 28
A minor child was admitted by his parents to a
nursing home as he was suffering fever. The doctor diagnosed typhoid and gave
an injection Lariago which was administered by the nurse to the patient who
immediately collapsed. The doctor was examined and testified that the child
suffered a cardiac arrest on account of the medicine having being injected which
led to brain damage. The National Commission held that the cause of cardiac
arrest was intravenous injection of Lariago of such a high dose. The doctor was
negligent in performing his duty because instead of administering the injection
himself he permitted the nurse to give the injection. There was clear
dereliction of duty on the part of the nurse who was not even a qualified nurse
and was not registered with any nursing council of any State. Both the doctor
and nurse and the hospital were found liable and awarded compensation to the
parents.
The definition
clause being wide enough to include not only the person who hires the services
but also the beneficiary of such services which beneficiary is other than the
person who hires the services, the conclusion is irresistible that both the
parents of the child as well as the child would be consumer within the meaning
of Section 2(1)(d)(ii) of the Act and as such can claim compensation under the
Act. If the parents of the child having hired the services of the hospital, are
consumer within the meaning of Section 2(1)(d)(ii) and the child also is
consumer being a beneficiary of such services hired by his parents in the
inclusive definition in Section 2(1)(d) of the Act, the Commission will be
fully justified in awarding compensation to both of them for the injury each
one of them has sustained.
In the case in
hand the Commission has awarded compensation in favour of the minor child
taking into account the cost of equipments and the recurring expenses that would
be necessary for the said minor child who is merely having a vegetative life. The
compensation awarded in favour of the parents of the minor child is for their
acute mental agony and the life long care and attention which the parents would
have to bestow on the minor child. Accordingly, the Commission in our
considered opinion rightly awarded compensation in favour of the parents in
addition to the compensation in favour of the minor child.
The mental
agony of the parent will not be dismissed in any manner merely seeing the only
child living a vegetative state on account of negligence of the hospital
authorities on a hospital bed. The agony of the parents would remain so long as
they remain alive and the so-called humanitarian approach of the hospital authorities
– like free treatment – in no way can be considered to be a factor in denying
the compensation for mental agony suffered by the parents.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE
CASES - HOSPITALS Page 29
(CRIMINAL LIABILITY OF THE
CORPORATION - TADA)
Kalpnath Rai vs. State, 1998 AIR (SC) 201
The
company is not a natural person. We are aware that in many recent penal statutes,
companies or corporations are deemed to be offenders on the strength of the
acts committed by persons responsible for the management of affairs of such
company or corporations e.g. Essential Commodities Act, Prevention of Food
Adulteration Act, etc. But there is no such provision in TADA which makes the
company liable for the acts of its officers. Hence, there is no scope
whatsoever to prosecute a company for the offence under Section 3(4) of TADA.
The corollary is that the conviction passed against A-12 is liable to be set
aside.
(DISCLOSURE
OF AIDS DIAGNOSIS)
Mr
‘X’ vs. Hospital ‘Z’, AIR 1999 SC 495,
JT 1998 (7) SC 626, 1998 (6) SCALE 230
The appellant, MBBS ,
MD , Diploma was in the Nagaland State Madras Madras
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 30
It is
true that in the doctor-patient relationship, the most important aspect is the
doctor’s duty of maintaining secrecy. A doctor cannot disclose to a person any
information regarding his patient which he has gathered in the course of
treatment nor can the doctor disclose to anyone else the mode of treatment or
the advice given by him to the patient.
Hippocratic
Oath as such is not enforceable in a court of law as it has no statutory force.
Medical information about a person is protected by the Code of Professional
Conduct made by the Medical Council of India under Section 33(m) read with
Section 20A of the Act. The relevant provisions of the Code of Medical Ethics
have already been reproduced above which contain an exception to the general
rule of confidentiality, inasmuch as it provides that the information may be
disclosed in a court of law under the orders of the Presiding Judge. This is
also the law in England where it is provided that the exceptions to this rule
permit disclosure with the consent, or in the best interests, of the patient,
in compliance with a court order or other legally enforceable duty and, in very
limited circumstances, where the public interest so requires. Circumstances in
which the public interest would override the duty of confidentiality could, for
example, be the investigation and prosecution of serious crime or where there
is an immediate or future (but not a past and remote) health risk to others.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 31
The
argument of the learned counsel for the appellant, therefore, that the
respondents were under a duty to maintain confidentiality on account of the
Code of Medical Ethics formulated by the Indian Medical Council cannot be
accepted as the proposed marriage carried with it the health risk to an
identifiable person who had to be protected from being infected with the
communicable disease from which the appellant suffered. The right to
confidentiality, if any, vested in the appellant was not enforceable in the
present situation.
Disclosure
of even true private facts has the tendency to disturb a person’s tranquility.
It may generate many complexes in him and may even lead to psychological
problems. He may, thereafter, have a disturbed life all through. In the face of
these potentialities, and as already held by this Court in its various
decisions referred to above, the Right of Privacy is an essential component of
right to life envisaged by Article 21. The right, however, is not absolute and
may be lawfully restricted for the prevention of crime, disorder or protection
of health or morals or protection of rights and freedom of others.
Having
regard to the fact that the appellant was found to be HIV(+), its disclosure
would not be violative of either the rule of confidentiality or the appellant’s
Right of Privacy as Ms. Akali with whom the appellant was likely to be married
was saved in time by such disclosure, or else, she too would have been infected
with the dreadful disease if marriage had taken place and consummated
The
emphasis, therefore, in practically all systems of marriage is on a healthy
body with moral ethics. Once the law provides the “venereal disease” as a
ground for divorce to either husband or wife, such a person who was suffering
from that disease, even prior to the marriage cannot be said to have any right
to marry so long as he is not fully cured of the disease. If the disease, with
which he was suffering, would constitute a valid ground for divorce, was
concealed by him and he entered into marital ties with a woman who did not know
that the person with whom she was being married was suffering from a virulent
venereal disease, that person must be injuncted from entering into marital ties
so as to prevent him from spoiling the health and, consequently, the life of an
innocent woman.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 32
Sections
269 and 270 of the Indian Penal Code spell out two separate and distinct
offences by providing that if a person, negligently or unlawfully, does an act
which he knew was likely to spread the infection of a disease, dangerous to
life, to another person, then, the former would be guilty of an offence, punishable
with imprisonment for the term indicated therein. Therefore, if a person
suffering from the dreadful disease “AIDS”, knowingly marries a woman and
thereby transmits infection to that woman, he would be guilty of offences
indicated in Sections 269 and 270 of the Indian Penal Code. The Court cannot
assist that person to achieve that object.
(VICARIOUS LIABILITY OF
HOSPITALS)
Mrs.
Arpana Dutta vs. Apollo Hospitals
Enterprises: 2002 ACJ 954, AIR 2000 Mad 340, (2000) IIMLJ 772 (Madras
The plaintiff developed certain
gynaecological problems. When she consulted the Doctors abroad advised her to
go in for Hysterectomy. She came down to Madras
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 33
evaluated the various test reports, of the
plaintiff and diagnosed the ailment of the plaintiff as a Bilateral
Endometriotic Cyst and Uterine Fibroids. The plaintiff also consented to
undergo surgery in the hospital of the second defendant. Operation was done by
the third defendant under general Anaesthesia assisted by other Doctors, nurses
and staff attached to the second defendant hospital. The operation notes
prepared by the defendants also confirmed that abdomen of the plaintiff was
opened by fannenstel incision and uterus was removed along with some mass that
was found around the uterus. After the surgery, the plaintiff gained
consciousness and talked. After the effect of anaesthesia disappeared the
plaintiff felt discomfort and severe pain over the abdominal region. The
plaintiff was administered pain killers and other drugs to bring down the
temperature but the plaintiff developed an uneasy feeling due to a painful lump
which she was able to feel in the abdominal region, which is around the place
where the surgical incision was made. When the third defendant came to examine
her, the plaintiff complained of pain and an uneasy feeling and she also
informed that she felt a lump in the abdominal region. The third defendant
after examining her and feeling the lump at the abdominal region, Informed the
plaintiff that it must be due to fluid collection in the region as a result of
surgery and the fluids would be absorbed in course of time. The third defendant
also told the plaintiff that if the fluids did not get absorbed and pain
continued she would aspirate the fluids and remove the same. On the advise of
the third defendant ultra sound tests were carried on, one a Vaginal ultra
sound examination and another abdomen ultra sound test. The third defendant
concluded that results of the ultra sound report revealed only fluid collection
between rectus and muscle layer. The third defendant did not even attempt to
aspirate the fluid which she has suggested earlier. Without giving any further
treatments, the plaintiff was discharged from the care of the defendants on
3-7-1991. After
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 34
staying for few days in a hotel situated
adjacent to the hospital of the defendants, the plaintiff left for Guwahati and
then to Saudi Arabia Saudi Arabia
The
foreign object found inside the abdomen, namely the abdominal pack, has been
removed physically which has been spoken to by P.W. 3 who did the second
correctional operation. She has also spoken to the fact that after the foreign
object was taken out, it was shown to the husband of P.W. 1, namely P.W. 2 and
he was allowed to take a photograph of the same, which is shown in Ex. A-2. The
oral evidence of P.W. 3 has been substantiated by her report, Ex. A-5 skiograms
and other records. So, the fact that abdominal pack was left behind in the
abdominal region of the plaintiff due to her operation in Apollo Hospital has
been proved by the evidence of P.Ws. 1 to 3 and this has been also corroborated
by records. P.W. 3 as a Doctor who has done the second operation has absolutely
no reason to swear falsely. In fact she being a qualified Surgeon admitted that
leaving of a foreign object like abdominal pack during the course of operation
and closing the wound is an act of negligence. The evidence adduced by the
plaintiff has
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 35
conclusively
established that an abdominal pack was left behind in the abdominal region at
the time of operation done by the third defendant in the hospital of the first
defendant and this was only an act of negligence and due to want of sufficient
care and caution in conducting the operation which is expected of a surgeon
like the third defendant. So, there can be no escape for the first and third
defendants and they must be made answerable to the sufferings and pain
undergone by the plaintiff due to the carelessness and negligence of the third
defendant, while doing the operation in the hospital of the first defendant.
The Doctrine “Res Ipsa Loquitur”
squarely applies to the facts of the present case. Therefore, the defendants 1
to 3 must be held liable for the damages suffered by the plaintiff which was
only due to the negligence on the part of the third defendant and the operation
was done at the hospital of the first defendant.
The
first defendant as a high professional hospital is proclaiming to the entire
world that they are offering best medical treatment or service and in fact they
claim to enjoy such a reputation and therefore they cannot escape from their
liability, leaving the Doctor who did the operation to pay for the damages
suffered by the patients to whom the services were rendered by the first
defendant. Therefore, the first defendant is also equally liable and we are not
very much concerned with the peculiar terms of the contract of employment
between the defendants 1 and 3. The plaintiff has only approached the first
defendant hospital for availing the services offered by the hospital and it was
the hospital which has deputed or engaged the third defendant to perform the
operation required by the plaintiff. The plaintiff has paid the bills charged
by the hospital itself which no doubt has chosen to get a particular fee for
which they separately issued a receipt towards fee for operational charges
charged by the third defendant. Therefore, I hold that the first defendant also
must be held liable for the suffering and damages undergone by the plaintiff
due to the proved negligence in conduct of operation which the third defendant
did at the instance of the first defendant.
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 36
(DISCOVERY RULE)
Quinton vs. United States
The wife of
the plaintiff was given blood transfusion in a Government hospital in 1956. In
June, 1959, the plaintiff and his wife during the latter’s pregnancy discovered
that wrong type of blood was given to her in 1956 and as a result she gave
birth to a stillborn child. The Government sought dismissal of the action for
damages on the ground of limitation. The Court of Appeals opined that when a
claim accrues under the Federal Tort Claims Act, it is governed by Federal law
and not by local State law. The Court then held that the period of limitation
does not begin to run until the claimant discovers, or in the exercise of
reasonable diligence should have discovered the act constituting the alleged
negligence.
(SPEEDY SUMMARY TRIAL)
Charan
Singh vs. Healing Touch Hospital
The spirit of
the benevolent legislation has been overlooked and its object frustrated by
non-suiting the appellant in the manner in which it has been done by the
National Consumer Forum. The Consumer Forums must take expeditious steps to
deal with the complaints filed before them and not keep them pending for years.
It would defeat the object of the Act, if summary trials are not disposed of
expeditiously by the forums at the District, State or National levels. Steps in
this direction are required to be taken in the right earnest.
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 37
(HOSPITALS - APPLICABILITY OF
THE ESI ACT)
Christian Medical College vs. Employee’s State Insurance Corporation,
(2001) 1 SCC 256
If any repairing takes place
with a view of use the equipment then it amount to manufacturing process. It is
the appellant’s own case that the Equipment Maintenance Department maintains
and repairs their equipment of the efficient use of the equipment in the
Hospital. Therefore, this department is clearly covered by the term “factory”
under the ESI Act. Once it squarely falls within this term, the provisions of
the Act become applicable to this department. No question arises of applying
the test of dominant nature. The test of dominant nature would have become
applicable only if on the basis of this department falling within the
definition of the term “factory” the respondent had sought to make the
appellant Hospital also amenable to the provisions of the ESI Act. As that is not
the case here no question arises of applying the dominant nature test.
(RESPONSIBILITY OF HOSPITAL)
Savita
Garg (Smt.) vs. Director, National Heart
Institute, IV (2004) CPJ 40 (SC)
The appellant is the wife of A.K.Garg who was
admitted to the National Heart Institute for medical treatment and because of
the negligence of the doctors of the Institute he could not get proper medical
treatment and ultimately he died. The deceased A.K.Garg was employed as
Electrical Engineer in I.D.P.L. It was alleged that on 3.8.1994 he was operated
and was brought to the Intensive Care Unit of the Institute. No attendant was
allowed to see the patient except through the glass windows of I.C.U. The
deceased was operated twice by Dr.O.P. Yadav of the Institute for his treatment.
8 bottles of blood were transfused in the body of the deceased and even on
4.8.1994 another 8 bottles of blood were demanded by the Doctors. The deceased
is said to have developed jaundice may be because of wrong transfusion or extra
transfusion of blood. Thereafter, as it was reported to be case of kidney
failure, the deceased was put on dialysis. However, on 9.8.1994 at 2.30 hours
the deceased was declared dead.
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 38
Once an
allegation is made that the patient was admitted in a particular hospital and
evidence is produced to satisfy that he died because of lack of proper care and
negligence, then the burden lies on the hospital to justify that there was no
negligence on the part of the treating doctor or hospital. Therefore, in any
case, the hospital is in a better position to disclose what care was taken or
what medicine was administered to the patient. It is the duty of the hospital
to satisfy that there was no lack of care or diligence. The hospitals are
institutions, people expect better and efficient service, if the hospital fails
to discharge their duties through their doctors, being employed on job basis or
employed on contract basis, it is the hospital which has to justify and not
impleading a particular doctor will not absolve the hospital of its
responsibilities.
It is the
common experience that when a patient goes to a private clinic, he goes by the
reputation of the clinic and with the hope that proper care will be taken by
the hospital authorities. It is not possible for the patient to know that which
doctor will treat him. When a patient is admitted to a private clinic/ hospital
it is hospital/ clinic which engages the doctors for treatment. They charge fee
for the services rendered by them and they are supposed to bestow the best
care.
(CRIMINAL LIABILITY OF THE
CORPORATION)
Standard Chartered Bank vs.
Directorate of Enforcement, 2005 SCC (Cri.) 961, SC
There
is no dispute that a company is liable to be prosecuted and punished for
criminal offences. Although there are earlier authorities to the effect that
corporations cannot commit a crime, the generally accepted modern rule is that
except for such crimes as a corporation is held incapable of committing by
reason of the fact that they involve personal malicious intent, a corporation
may be subject to indictment or other criminal process, although the criminal
act is committed through its agents.
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 39
Inasmuch
as all criminal and quasi-criminal offences are creatures of statute, the
amenability of the corporation to prosecution necessarily depends upon the
terminology employed in the statute. In the case of strict liability, the
terminology employed by the legislature is such as to reveal an intent that
guilt shall not be predicated upon the automatic breach of the statute but on
the establishment of the actus reus,
subject to the defence of due diligence. The law is primarily based on the
terms of the statutes. In the case of absolute liability where the legislature
by the clearest intendment establishes an offence where liability arises
instantly upon the breach of the statutory prohibition, no particular state of
mind is a prerequisite to guilt. Corporations and individual persons stand on
the same footing in the face of such a statutory offence. It is a case of
automatic primary responsibility.
(NEGLIGENCE BY HOSPITALS)
Jacob Mathew vs.
State of Punjab
(For details – refer Criminal Negligence Ibid)
We are
satisfied that all the averments made in the complaint, even if held to be
proved, do not make out a case of criminal rashness or negligence on the part
of the accused appellant. It is not the case of the complainant that the accused-appellant
was not a doctor qualified to treat the patient whom he agreed to treat. It is
a case of non- availability of oxygen cylinder either because of the hospital
having failed to keep available a gas cylinder or because of the gas cylinder
being found empty. Then, probably the hospital may be liable in civil law.
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 40
(HOSPITALS
- INDUSTRIAL
EMPLOYMENT (STANDING ORDERS) ACT.)
Indraprastha
Medical Corporation vs. NCT of Delhi And Ors.: 130 (2006) DLT 292 (Delhi
The main activity of a Hospital
is to cure diseases and ailments and not to do washing, cleaning, generating,
cold storage etc. These latter are only incidental activities. In other words,
to determine whether an establishment is a factory or not under Section 2(m) of
the Factories Act, we have to see what is the main activity which is being conducted
in the establishment. If the main activity is of repairing, washing, cleaning,
power generating etc. then it will certainly be a factory, but not if that is
only an incidental work.
The
definition of ‘industrial establishment’ in the Standing Orders Act is very
different from that of ‘industry’ in the Industrial Disputes Act. Hence, the
decision of the Supreme Court interpreting the word ‘industry’ in the
Industrial Disputes Act has no application to the interpretation of the words ‘industrial
establishment’ in the Standing Orders Act.
(AIDS
TRANSMISSION THROUGH BLOOD TRANSFUSION)
M.
Chinnaiyan vs. Sri
Gokulam Hospital
The dispute was whether transfusion of two
units of blood to the complainant’s wife in the post-operative period in
December 1990 could result in full blown AIDS in mid, June, 1994. The
complainant’s wife was transfused two units of blood in the post-operative
period in the hospital which was allegedly procured from another laboratory. In
mid 1994 the patient developed recurrent loose motion, weight loss, respiratory
infection and difficulty in swallowing, for which a blood test was done by the
second opposite party which showed that HIV antibodies were present and ELISA
test was done in June 1994 which confirmed that complainant’s wife was infected
with HIV. She underwent medical treatment at YRG Centre. In July 1995,
complainant’s wife developed left sided hemi paresis, oral candidacies and
pulmonary tuberculosis. She was hospitalized and died on 16.8.1995.
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 41
The
laboratory was duty-bound as per the Drugs and Cosmetics Rules duly amended on
11.7.1989. Rule 66(A) which clearly stipulates a mandatory condition of
conducting HIV antibody test before certifying the purity of blood. This was
not complied with by the blood bank and clinical laboratory. Dr. Chellammal
merely stated that she relied on the clinical report of blood bank who
conducted the test but she did not insist for the blood test certificate. There
is no mention about the clinical record maintained by the doctor that the blood
was found to be free from infection. This is a clear-cut case of negligence on
the part of R1 and R 2.
Apart
from the duty of the clinical laboratory and the blood bank to ensure that the
blood is free from infection and it is the duty of attending physician to
ensure that the blood is free from infection. The decision to transfuse blood
or blood products must be based on a careful assessment which indicates that
they are necessary for saving life or for preventing major morbidity.
Responsibility for the decision to transfuse must rest ultimately with the
attending physician, although this will often be made in consultation when a
specialist transfusion advice is available.
The
next issue is to be decided, if the blood was transfused in December 1990,
whether it can result in full blown HIV AIDS after 3Vi years. The medical
literature produced by the learned Counsel for the appellant is very clearly
mentioned in HIV (Pathogenesis and Natural History) by Howard Libman, MD and
Harvey J Makadon, MD which reads as under: Progression to symptomatic HIV
Disease - When the high viral levels associated with acute HIV syndrome are
suppressed by the initial immunologic response, an infected person generally
moves into an asymptomatic period that may range from several months to more
than 10 years. Although symptoms are not present during this period of clinical
latency, viral replication is ongoing, leading to a loss of approximately 10%
of CD 4 cells per year in most individuals.
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 42
(UNQUALIFIED
PHYSICIAN IN HOSPITAL & LACK OF COORDINATION)
Prof.
P.N. Thakur and Anr. vs. Hans Charitable Hospital and Ors. (NCDRC): III (2007)
CPJ 340 NC
Jai Dev Kumar was taken by his brother Jai
Kishan Kumar to the OPD of Hans
Charitable Hospital
As
regards the fixing of the liability for the above gross negligence that has
taken place, we have to hold Respondent No.1, the Hospital as mainly
responsible. They have employed an unqualified Doctor to administer and provide
allopathic treatment to the patient. As stated above, since Dr. Rehan did not
even produce his Registration Certificate with Delhi Chiktsa Board, a doubt is
left in our mind as to whether he is qualified even as Unani Doctor. Employing
such unqualified person and further allowing him to treat complicated and
emergency cases is a gross negligence on the part of the Hospital. When a
patient is admitted in a hospital, it is done with the belief that the
treatment given in the hospital is being given by qualified doctors under the
Indian Medical Council Act, 1956. It is not within the knowledge of the
relatives of the patient that the patient is being treated by a Unani
Specialist. We hold that it is clear deficiency in service and negligence by
the hospital for leaving the patient in the hands of Unani doctor.
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 43
The Chairman
of the Hospital Trust is not even aware as to what is happening in the
Hospital. The Hospital has put up an untenable case that Dr. Asha Hans, a
senior RMO, was, in fact, looking after the patient and that Dr. Rehan acted
under her instructions. There is no evidence whatsoever for this as has been
brought on record. It is worth noting that Dr. Asha Hans is the daughter-in-law
of the Chairman of the Trust and she has been put up as a front to cover up
their gross irregularity in employing an unqualified Doctor. Similarly the
Hospital authorities should have effected necessary coordination between the
Physician and the ENT specialist. They failed in this and the ENT specialist
came on the scene quite late in the day and no efforts were made to clear the
blocked airways of the patient except administering sedative to him. It is this
blocking of the airways which was unattended which resulted in the death within
ten hours after the admission into the Hospital. Secondly, there was a total
lack of coordination between the Physician, ENT Specialist, RMO and the
hospital authorities in the treatment given to the deceased. Apex Court in
Jacob Mathew vs. State of Punjab case further held that in law of negligence
doctors may be held liable for negligence on one of the 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.
Since
we have already held that Respondent No.1 is mainly responsible for all that
what has happened indicating medical negligence and casual approach of hospital
in giving treatment and the ultimate death, we feel that primarily the hospital
owned and run by Shri K.L. Hans is responsible to pay the aforesaid amount, for
we feel that Dr. Rehan would be just an instrument in the hands of the hospital
administration. Accordingly, Hans
Charitable Hospital
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 44
(PROCEDURE TO BE ADOPTED BY AN
ENQUIRY OFFICER)
State of Uttaranchal
(i) The
enquiries must be conducted bona fide and care must be taken to see that the
enquiries do not become empty formalities.
(ii) If
an officer is a witness to any of the incidents which is the subject-matter of
the enquiry or if the enquiry was initiated on a report of an officer, then in
all fairness he should not be the enquiry officer. If the said position becomes
known after the appointment of the enquiry officer, during the enquiry, steps
should be taken to see that the task of holding an enquiry is assigned to some
other officer.
(iii) In
an enquiry, the employer/department should take steps first to lead evidence
against the workman/delinquent charged and give an opportunity to him to
cross-examine the witnesses of the employer. Only thereafter, the
workman/delinquent be asked whether he wants to lead any evidence and asked to
give any explanation about the evidence led against him.
(iv) On
receipt of the enquiry report, before proceeding further, it is incumbent on
the part of the disciplinary/punishing authority to supply a copy of the
enquiry report and all connected materials relied on by the enquiry officer to
enable him to offer his views, if any.
(PRECAUTIONS BY DOCTORS/HOSPITALS)
Martin
F.D’ Souza vs. Mohd. Ishfaq, [(2009) 3 SCC 1]
Precautions
which Doctor/Hospitals/Nursing Homes should take :
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 45
(a) Current
practices, infrastructure, paramedical and other staff, hygiene and sterility
should be observed strictly.
(b) No
prescription should ordinarily be given without actual examination. The
tendency to give prescription over the telephone, except in an acute emergency,
should be avoided.
(c) A doctor
should not merely go by the version of the patient regarding his symptoms, but
should also make his own analysis including tests and investigations where
necessary.
(d) A doctor
should not experiment unless necessary and even then he should ordinarily get a
written consent from the patient.
(e) An expert
should be consulted in case of any doubt.
(f) Full
record of the diagnosis, treatment, etc. should be maintained.
(NEGLIGENCE)
P.G.Inst. of Medical Education & Ors. vs.
Jaspal Singh & Ors. (2009) 7 SCC 330
Smt. Harjit Kaur (wife of complainant No. 1 and
mother of complainant No. 2) received accidental burns - 50% TBSA III - was taken to Daya Nand Medical
College and Hospital, Ludhiana immediately where she responded to the treatment
well - On April 19, 1996, Smt. Harjit Kaur was shifted in PGI, Chandigarh - The
condition started improving at PGI - On May 15, 1995 transfused A+ blood which
was her blood group - On May 20, 1996, the patient was transfused B+ blood
group - night of May 20, 1996, the urine of the patient was reddish like blood
and the attendant nurse was informed accordingly - May 21, 1996 again one bottle of B+ blood
group was transfused - hemoglobin levels
fell down to 5mg. and urea level went very high - the kidney and liver of the
patient got deranged - an inquiry was conducted through senior doctor and wrong
transfusion of the blood to the patient was found - ultimately died on July 1,
1996.
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 46
It is seen
that the patient’s kidney was damaged and the blood level reached to 100 gms.
percentage, hemoglobin came down to 5 mg. after the mismatched blood
transfusion was given by the Doctor in the said Hospital. It was only after the
Complainant gave the written complaint to the hospital regarding the wrong
transfusion of blood given to the patient, an inquiry was made and it was found
correct. The damage control treatment started only after the written complaint
was given by the complainant. Though it is argued by the Counsel for the
Appellant that the percentage levels were brought down to normal, it is very
clear to us that the internal imbalances of liver and kidney functioning and
deteriorating hemoglobin levels started only after the mismatched blood
transfusion was given. Though septicemia has been written as the ultimate cause
of death, the patient’s health took a nose dive only after wrong blood was
given to her and this is clearly negligence on the part of the Doctors of the
Hospital which the appellants cannot disown or absolve themselves.
(STEROIDS IN TREATMENT)
Malay
Kumar Ganguly vs. Sukumar Mukherjee & Ors.; (2009) 9 SCC 221
A patient
would feel the deficiency in service having regard to the cumulative effect of
negligence of all concerned. Negligence on the part of each of the treating
doctors as also the hospital may have been contributing factors to the ultimate
death of the patient. But, then in a case of this nature, the court must deal
with the consequences the patient faced keeping in view the cumulative effect.
It is the duty of the hospital to satisfy that there was no lack of care or
diligence. The hospitals are institutions, people expect better and efficient
service, if the hospital fails to discharge their duties through their doctors,
being employed on job basis or employed on contract basis, it is the hospital
which has to justify and not impleading a particular doctor will not absolve
the hospital of its responsibilities.
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 47
(NEGLIGENCE,
CONSENT, NEUROFIBROMA))
Nizam
Institute of Medical Sciences vs. Prasanth S. Dhananka and Ors. [2009 (7) SCALE 407]
The complainant, Prasanth S. Dhananka, then
20 years of age and a student of Engineering, complaining of recurring fever
visited the appellant - Nizam Institute of Medical Sciences (NIMS) and was
advised to undergo on ultrasound guided biopsy for Neurofibroma, an innocent
tumour, after an X-ray revealed a mass in the left hemithorax with posterior
mediastinal erosion of the left 2nd, 3rd and 4th ribs. As several attempts at
Fine Needle Aspiration Cytology (FNAC) under ultra sound guidance did not give
any conclusive evidence as to the nature of the mass detected in the X-ray
examination, the complainant was referred to Dr. P.V. Satyanarayana, a Cardio
Thoracic Surgeon, for excision biopsy and the operation was performed on 23rd
October, 1990 and the tumour was excised. Immediately after the surgery, the
complainant developed acute paraplegia with a complete loss of control over the
lower limbs, and some other related complications, which led to prolonged
hospitalization and he was ultimately discharged from the hospital completely paralyzed
with no change in his sensory deficit. The discharge record also shows that the
patient required continuous physiotherapy and nursing care on account of
infection of the urinary tract and the development of bed-sores etc. After his
discharge from NIMS, he visited several other hospitals seeking relief, but to
no avail.
We are
cognizant of the fact that in a case involving medical negligence, once the
initial burden has been discharged by the complainant by making out a case of
negligence on the part of the hospital or the doctor concerned, the onus then
shifts on to 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.
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE
CASES - HOSPITALS Page 48
The
complainant, who has argued his own case, has submitted written submissions now
claiming about 7.50 Crores as compensation under various heads. He has, in
addition sought a direction that a further sum of Rs. 2 crores be set aside to
be used by him should some developments beneficial to him in the medical field
take place. We, however, find that the claim with respect to some items need to
be allowed or enhanced in view of the peculiar facts of the case. Concededly,
the complainant is a highly qualified individual and is gainfully employed as
an IT Engineer and as per his statement earning a sum of Rs.28 Lakh per annum
though he is, as of today, about 40 years of age. The very nature of his work
requires him to travel to different locations but as he is confined to a wheel
chair he is unable to do so on his own. His need for a driver cum attendant is,
therefore, made out. The complainant has worked out the compensation under this
head presuming his working life to be upto
the age of 65 years. We feel that a period of 30 years from the date of the
Award of the Commission i.e. 16th February, 1999, rounded off to 1st
March, 1999, would be a reasonable length of time. A sum of Rs.2,000/- per
month for a period of 30 years (rounded off from 1st of March 1999)
needs to be capitalized. We, accordingly, award a sum of Rs.7.2 Lakh under this
head. The complainant has also sought a sum of Rs.49,05,800/- towards nursing
care etc. as he is unable to perform even his daily ablutions without
assistance. He has computed this figure on the basis of the salary of a Nurse
at Rs. 4375/-per month for 600 months. We are of the opinion that the amount as
claimed is excessive. We, thus grant Rs.4,000/- per month to the appellant for
a period of 30 years making a total sum of Rs.14,40,000/-. The complainant has
further sought a sum of Rs.46 Lakhs towards physiotherapy etc. at the rate of
Rs.4,000/- per month. We reduce the claim from Rs.4,000/- to Rs.3,000/- per
month and award
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 49
this
amount for a period of 30 years making a total sum of Rs.10,80,000/- At this
stage, it may be pointed out that some of the medical expenses that had been
incurred by the complainant have already
been defrayed by the employer of the complainant’s father and we are, therefore,
disinclined to grant any compensation for the medical expenses already
incurred. However, keeping in view the need for continuous medical aid which
would involve expensive medicines and other material, and the loss towards
future earnings etc., we direct a lump sum payment of Rs.25/-lakhs under each
of these two heads making a total of Rs.50 lakhs. In addition, we direct a
payment of Rs.10 lakh towards the pain and suffering that the appellant has
undergone. The total amount thus computed would work out to Rs.1,00,05,000
(Rs.1 crore 5 thousand) which is rounded off to Rs. One Crore plus interest at
6% from 1st March, 1999 to the date of payment, giving due credit
for any compensation which might have already been paid.
(CRIMINAL LIABILITY OF THE
CORPORATION)
Standard Chartered Bank vs.
Vinay Kumar Sood & Ors, 2009 (1) JCC
756
Undisputedly,
the petitioner is a bank incorporated in England
Adv.C.K.SIVADASAN,
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MEDICAL NEGLIGENCE CASES - HOSPITALS Page 50
(NEGLIGENCE)
Kusum
Sharma & Ors. vs. Batra Hospital &Med.Research Centre; (Supreme Court of India
To
prosecute a medical professional for negligence under criminal law it must be
shown that the accused did something or failed to do something which in the
given facts and circumstances no medical professional in his ordinary senses
and prudence would have done or failed to do. The hazard taken by the accused
doctor should be of such a nature that the injury which resulted was most
likely imminent.
On
scrutiny of the leading cases of medical negligence both in our country and
other countries specially United
Kingdom
I.
Negligence is the breach of a duty exercised by omission to do something which
a reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or doing something which a prudent and
reasonable man would not do.
II.
Negligence is an essential ingredient of the offence. The negligence to be established
by the prosecution must be culpable or gross and not the negligence merely
based upon an error of judgment.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 51
III.
The medical professional is expected to bring a reasonable degree of skill and
knowledge and must exercise a reasonable degree of care. Neither the very
highest nor a very low degree of care and competence judged in the light of the
particular circumstances of each case is what the law requires.
IV. A
medical practitioner would be liable only where his conduct fell below that of
the standards of a reasonably competent practitioner in his field.
V. In
the realm of diagnosis and treatment there is scope for genuine difference of
opinion and one professional doctor is clearly not negligent merely because his
conclusion differs from that of other professional doctor.
VI. 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. Just because a professional looking to the
gravity of illness has taken higher element of risk to redeem the patient out
of his/her suffering which did not yield the desired result may not amount to
negligence.
VII.
Negligence cannot be attributed to a doctor so long as he performs his duties
with reasonable skill and competence. Merely because the doctor chooses one
course of action in preference to the other one available, he would not be
liable if the course of action chosen by him was acceptable to the medical profession.
VIII.
It would not be conducive to the efficiency of the medical profession if no
Doctor could administer medicine without a halter round his neck.
IX. It
is our bounden duty and obligation of the civil society to ensure that the
medical professionals are not unnecessary harassed or humiliated so that they
can perform their professional duties without fear and apprehension.
X. The
medical practitioners at times also have to be saved from such a class of
complainants who use criminal process as a tool for pressurizing the medical
professionals/hospitals particularly private hospitals or clinics for
extracting uncalled for compensation. Such malicious proceedings deserve to be
discarded against the medical practitioners.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 52
XI. The
medical professionals are entitled to get protection so long as they perform
their duties with reasonable skill and competence and in the interest of the
patients. The interest and welfare of the patients have to be paramount for the
medical professionals.
In our
considered view, the aforementioned principles must be kept in view while deciding
the cases of medical negligence. We should not be understood to have held that
doctors can never be prosecuted for medical negligence. As long as the doctors
have performed their duties and exercised an ordinary degree of professional
skill and competence, they cannot be held guilty of medical negligence. It is
imperative that the doctors must be able to perform their professional duties
with free mind.
(APPLICABILITY
OF BOLAM TEST)
V.
Kishan Rao vs. Nikhil
Super Speciality
Hospital
In most of the
cases the question whether a medical practitioner or the hospital is negligent
or not is a mixed question of fact and law and the Fora is not bound in every
case to accept the opinion of the expert witness. Although, in many cases the
opinion of the expert witness may assist the Fora to decide the controversy one
way or the other.
(CRIMINAL
NEGLIGENCE OF HOSPITAL IN MEDICAL
NEGLIGENCE)
Indraprastha
Medical Corp. Ltd. vs. State NCT of
Delhi & Ors. (2010), Crl.
M.C. No. 827/2010, (Delhi
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 53
The
offence of criminal negligence requires a specific state of mind in respect of
the person committing the offence. The offence of medical criminal negligence
cannot be fastened on the company since the company can neither treat nor
operate a patient of its own. It is the Doctor working in the company who
treats and performs operations. It is the Doctor who examines the patients and
prescribes medicines. If there is a deliberate or negligent act of the Doctor
working in the Corporation/Hospital, it is the liability of the Doctor and not
of the Corporation for criminal negligence despite the fact that due to the act
of the Doctor of treating patients the
Corporation
was getting some revenue. These days, all Doctors with big hospitals, are on
panels where they have fixed fee for examination of patients and for conducting
operations. Out of this fee, a percentage is paid to the hospital. The
hospital/company cannot be held liable for the personal negligence of the
Doctor in giving wrong treatment. However, if there is an administrative
negligence, or a negligence of not providing basic infrastructure, which
results into some harm to an aggrieved person or such negligence which is
impersonal, the hospital can be held liable. But, in the case of medical
negligence, which is personal to the Doctor who gave treatment, the Corporation
would not be liable and it is the Doctor who can be indicted for medical
criminal negligence.
(ABDOMINAL PAD LEFT INSIDE)
M/s. Soni
Hospital vs. Arun Balakrishnan Iyer (Madras
The first plaintiff is the husband of the second
plaintiff. The second plaintiff underwent an operation on 29.09.1989 in the
first defendant Hospital
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 54
considering the fact that she was in anesthesia and the
removal of uterus is very much necessary. The first defendant left the decision
to the discretion of the second defendant. Thereafter, the operation was
performed by removing the uterus and the second defendant informed the first
plaintiff not to inform the second plaintiff about the said removal on the
ground that it would give her a mental shock. Its after, the second plaintiff
suffered from severe stomach ache and developed dysentery, nausea and vomiting.
The condition got deteriorated day-by-day in spite of the treatment given by
the second defendant. She was admitted to City Tower Hospital Soni Hospital
The
issues as follows:
(i)Whether
this Court has no jurisdiction to try this case?
(ii)Whether
the defendants are not liable to pay compensation for removing the uterus
without obtaining consent of the second plaintiff?
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - HOSPITALS Page 55
(iii)Whether
abdominal pad was not placed in the body of the second plaintiff and omitted to
be removed during operation?
(iv)Whether
the defendants were not negligent in the medical treatment given to the second
plaintiff?
(v)Whether
the plaintiffs are not entitled to damages from the defendants?
(vi)Whether
the plaintiffs are not entitled for interest at the rate of 9% per annum?
(vii)To
what other reliefs the plaintiffs are entitled?
Considering
the ratio laid down by various pronouncements of the Honourable Apex Court, we
do not have any hesitation in holding that the defendants have not established
the fact that there is no medical negligence. On the contrary, the plaintiffs
have fully established the fact particularly with the evidence of P.W.3 read
with Ex.P.6 that the negligent has been caused by the defendants while
performing the surgery on the second plaintiff. The learned single Judge
estimated the compensation for Pain and Suffering and the quantum of
compensation and Medical Expenses awarded is quite reasonable.
(DISCOVERY RULE)
Morgan vs. Grace Hospital Inc. (West Virginia
A piece of
sponge had been left in the wound during a surgical operation but its presence
in the body did not come to light until 10 years later. The Court rejected the
objection of limitation and observed: It simply places an undue strain upon
common sense, reality, logic and simple justice to say that a cause of action
had ‘accrued’ to the plaintiff until the X-ray examination disclosed a foreign
object within her abdomen and until she had reasonable basis for believing or
reasonable means of ascertaining that the foreign object was within her abdomen
as a consequence of the negligent performance of the hysterectomy. We believe
that the ‘discovery rule’ as stated and applied in cases cited represents a
distinct and marked trend in recent decisions of appellate courts throughout
the nation.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
For more information, PLEASE VISIT:
MEDICAL CASES – ALPHABETICAL INDEX
MEDICAL CASES – SUBJECT INDEX
MEDICAL CASES – CONSUMER – GIST
MEDICAL CASES – CRIMINAL – GIST
MEDICAL PROFESSION IN INDIA
HOSPITAL
ADMINISTRATION – A LEGAL PERSPECTIVE
IMPORTANCE
OF HR IN HOSPITAL ADMINISTRATION
EMERGENCY
MEDICINE – LEGAL AND OPERATIONAL IMPEDIMENTS
IMPORTANCE
OF CONSENT IN TREATMENT
