Sunita Vasant Heganawar & Ors.v.Miraj Medical Center
1994 (2) CPJ 544: 1994 (3) CPR 214 (Mah SCDRC)
Smt. Sunita was operated for correction of atrial septal defect and mitral stenosis. During surgery, patients BP came down below the danger level and it became necessary to give her four units of blood. The first three units were tested for HIV infection, but the fourth unit had to be given despite not being tested for HIV due to urgency of the patients condition. The blood in the fourth unit was later found to be HIV positive, due to which Smt. Sunita became infected with AIDS virus, and later on her husband and her small child born after the operation were afflicted with AIDS. On the question of maintainability of the complaint it was held that as the hospital is a charitable hospital run by the Christian Mission Aid and as no consideration was paid, the complainant is not a consumer and provisions of the C.P.Act are not attracted. The question of negligence therefore was not dealt with. On compassionate grounds the hospital offered to provide free treatment to Mrs. Sunita, her husband and child and also offered employment to her husband. In view of this voluntary offer, the court held that in the event the opposite party accepts this offer this hospital is directed to adhere to its offer, despite dismissal of this complaint.
B. Hegde v. Dr. Sudhansu Bhattacharya
1992(2) CPJ 449 (Mah SCDRC)
The State Commission of Maharashtra held the doctor guilty of gross negligence for failure to render necessary post-operative care, which was under taken by him for consideration (fee). This fee of RS. 40000 was paid by cheque a few days after the open-heart by pass operation performed on the complainant at the Bombay Hospital, for rendering post-operative care and treatment for a period of three months. The fee was excessive, unreasonable and unjustifiable though conceding that the amount to be charged as fee for medical services is the choice of the medical practitioner. The State Commission further observed that the complainant badly needed post-operative care as pus formed in his chest region for want of post-operative care, which could have caused death. The doctor examined the patient reluctantly on one of the post-operative follow-ups, and on another occasion did not grant interview to the patient. Hence it held that the doctor had charged disproportionately and there was imperfection, short -coming and inadequacy in the nature and performance of post-operative care and awarded a sum of Rs. 2 lacs by way of compensation to the patient. On appeal against this order of the State Commission, the National Commission, in Sudhanshu Bhattacharya v. B.S. Hedge held that: There is no evidence of any deficiency in service on the part of the doctor or in rendering adequate care and treatment, because there was no cardiac or any other serious complication during the post-operative period. Pus formation in the stitches is a normal occurrence in the post-operation period of coronary by-pas surgery. It also noted the statement of other doctors who had subsequently attended on the patient that the discharge from the sternum was not serious, there was no tenderness, patient was afebrile and vital parameters were within normal limits, and the treatment given was of a superficial nature, and could not in ordinary course cause death. The National Commission also agreed in general with the observation of the State Commission that fee paid for an operation also includes post-operative care. But in the case of the operation being performed in an institution (hospital), it is the duty of the institution to render post-operative care and treatment. The private doctor, who is performing the operation for a fee in the hospital, cannot be expected to undertake and provide post-operative treatment and care to the hospitals patient. Quite often foreign doctors undertook operations in hospitals or nursing homes in India and it cannot be maintained that the post-operative care and treatment will continue to be provided by the foreign doctors who may no longer be in the country. Regarding the charging of Rs.40000 for post-operative care and treatment it found it to be clearly unreasonable. But however, improper it may be, the demand and acceptance of an exorbitant fee cannot be deemed to be deficiency in service and hence, it is not for the consumer forums to adjudicate on the question whether the consideration charged was reasonable. It also conceded that a doctor has the absolute right to decide which patient he would examine first and even out of turn depending upon the condition of the patient. He also has the right to examine patients in their turn and it cannot be maintained that a patient must be examined by the doctor at the appointed time irrespective of the time he may have to spend in examining the previous patient. In the light of above, discussion the order passed by the State Commission was set aside and complaint was dismissed.
Renu Jain v. Escorts Heart Hospital and Research Institute.
1992 (2) CPJ 391 (NCDRC)
The late Shri Anil Kumar Jain was admitted in the hospital on 25.2.1991 for coronary by-pass surgery which was performed on 4.3.1991 and patient was discharged on 14.3.1991. On 21.3.1991 patient was reviewed in O.P.D. and it was found that the wound above knee was infected. He was advised dressing of the wound. He was again seen on 3.4.1991 and advised to continue dressing. He was admitted on 4.4.1991 in a state of coma and died on 16.4.1991 in the Hospital.
The complainant alleged negligence on grounds of :
1. premature discharge;
2. post-operative wound infection;
3. failure to advise tests for the determination of diseases and treatment of infection;
4. failure to give proper treatment for infection resulting in thrombo-embolism which eventually resulted in the patient going into coma and death; and
5. failure of the hospital to undertake pathological autopsy.
According to the complainants Autopsy was avoided intentionally, contrary to the general practice throughout the world, only with a view to cover up the negligence and deficiencies in treatment.
These allegations were rebutted:
1. the discharge was not premature; the post-operative recovery was smooth and uneventful; the condition of the patient did not necessitate or justify continued hospitalization;
2. the infection in the wound above the knee was superficial and mild; there was no fever, no discharge; rather the antibiotics were withdrawn, and were not prescribed even when patient was received in OPD on 3.4.1991;
3. the blood report of the patient showed that his TLC and DLC was normal;
4. the patient died of brain-stem haemorrhage followed by acute renal failure and cardio-pulmonary arrest. The brain-stem hemorrhage had no relation with the coronary by-pass surgery or with the wound infection;
5. patient was a known case of hypertension which could lead to brain hemorrhage;
6. the hospital also placed on record the diagnosis and notes on the case sheet of the patient made by four different neurologists of the hospital after examination of the patient; two neurologists summoned by the relatives of the patient; was either due to embolic phenomenon or cerebral haemorrhage; this was carefully considered by the court which held that this does not establish that the patient had any thrombo-embolic phenomenon or that the brain-stem haemorrhage was embolic in origin.
On the question of carrying out the autopsy the court cited the medical text from Gradwohls Legal Medicine, third edition; “autopsy is a must when death of a person is sudden, unexplained, unexpected or violent”. This was not a medico-legal case, and the cause of death had been determined precisely. On the allegation that the hospital failed to inform that he was suffering from brain-stem haemorrhage and there was little hope of recovery, the court observed that the complainants own doctor had noted that poor prognosis has been explained to the relatives. At the conclusion of the hearing the hospital, purely on compassionate considerations, agreed to refund ex-gratia the amount of Rs.20000/- deposited at the time of his re-admission on 4.4.1991. The court, however, made it clear that there had been no deficiency in diagnosis and treatment of the patient in the hospital, and the refund could not be interpreted, directly or indirectly, as admission of any lapse. The court was assured that the complainants would accept the refund in this spirit and would not agitate the matter any further.. On these grounds the Commission held that there was no deficiency in service, and dismissed the complaint.
Study Circle Society v. Choithram Hospital and Research Centre
State Consumer Disputes Redressal Commission Madhya Pradesh : Bhopal
Consumer Protection Act, 1986 - Sections 17, 2(1)(g) and 2(1)(d) - Medical negligence – Child went into coma after treatment – Not given proper nursing care for recovery from coma – Compensation for negligence - No document filled or any oral evidence adduced – Indicating any kind of negligence in performance of operation or in post operative care - Complainant failed to establish any kind of negligence on the part of opposite party.
Held : The complainant has not filed any documentary or oral evidence indicating any kind of negligence in performance of operation by the Surgeon, or in the post operative care by the Hospital Nursing Staff. So for as the treating surgeon is concerned we find that he has filed an affidavit stating that he is MS in general surgery and has worked as Cardio-Thoresic Surgeon in Bombay Hospital from 1974 to 1976 and has been going abroad frequently to study latest developments and techniques in Cardio-Thoresic Surgery. He also gave to the Complainant a certificate dated June 24, 1995, wherein he has categorically started that the patient developed unforeseen post operative complications.
The complainant had utterly failed to establish any kind of negligence on the part of the opposite party.
Result: Complaint dismissed
This is a complaint against opposite party for grant of compensation for the negligence in operation and treatment of his grand daughter who went into comma on the date of filing of complaint.
The Complainant has alleged that after the child came into coma the child was not given proper nursing care for recovery from coma. That the reason for her coming in to coma was blood clotting, for which due precaution was not taken by the treating surgeon,who was not an expert in Cardio Thoresic Surgery.
Heard the arguments of both the parties and perused the record of the case. The complaint has not field any documentary or oral evidence indicating any kind of negligence in performance of operation by the surgeon, or in the post operative care by the Hospital Nursing Staff. So far as the treating Surgeon is concerned, we find that he has filed an affidavit stating that he is MS in general surgery and has worked as Cardio-Thoresic Surgeon in Bombay Hospital for 1974 to 1976 and has been going abroad frequently to study latest developments and techniques in Cardio-Thoresic Surgery. He also gave to the complainant a certificate dated June 24, 1995, wherein he has categorically stated that the patient developed unforeseen post operative complications.
In Hatcher V. Black, Lord Denning explained the law on the subject of negligence against doctors and hospitals that a doctor should only be found guilty of “negligence when he falls short of the standard of reasonably skillful medical man, in short when he is deserving of censure of negligence. The hon’ble Madhya Pradesh High Court in case of J.N.Shrivastava v. Rambhiharilal, has observed that a medical practitioner can only be held liable if he mistake is of such a nature as to imply absence of reasonable care or skill on his part regard being held to the ordinary level of scheme in the provision. M.C Nair, J. in case of Bolam V. Frien Hospital Management Committee, observed thus:
” In the case of a medical man, negligence means failure to act in accordance with standards of reasonably competent man at the time”
In case of Sethuramani Subramaniam Iyer v Triveni Nursing Home and Anr. the Hon’ble National Commission had held that in the absence of production of any expert evidence indicating negligence, the opposite parties cannot be held to be negligent in the service in treating the patient.
As has been held in case of Darshan Devi v. Rajeshwari Prasad, in this case also, nobody has opined that there was any negligence of recklessness or departure from accepted and established rules of treatment.
As such we find that the complainant had utterly failed to establish any kind of negligence on the part of the opposite party we therefore, dismiss the complaint with no order as to costs.
T.Rama Rao v Vijaya Hospital & Anr.
1997 (3) CPJ 59 : 1997 (3) CPR477 (Tamil Nadu SCDRC).
The complainant’s wife Dr Vijaya Laxmi a doctor was operytaed for mitral stenosis , with Dr K.M Cherian as the Chief Surgeon . It was alleged that subsequently she developed paralysis of her left side body and taken to Vijaya Hospital where C.T scan was done and Dr K.Cherian of the second Opposite party Madras Medical Mission declared that it was not a surgical case , but a medical case and would be alright under a neurophysician’s care , but no neurophysician attended for a week and ultimately she passed away due to lack of proper and timely.
The first opposite party contended that Dr Vijayalaxmi was under the entire treatment of the 2nd opposite party which is an independent body consisting of its own specialists and assistants and are paying for the charges to the 1 st opposite party for providing them with consultation rooms and other facilities. The first opposite party provides nursing facilities and laboratory services to these consultants . This was not disputed by the 2nd opposite party. Therefore the commission held that there is no clearly employer-employee relationship (Master-Servant relationship, Principal-Agent relationship) and hence no question of vicarious liability of the 1st opposite party for any deficiency in service in the treatment by the second opposite party arises.
As regards the main complaint that no neurophysician attended on her from 15.7.1991 to 24.7.1991 there was no spec9ific denial in the written version of the 2nd opposite party. Perusal of available records led the commission to conclude that the neurophysician had not attended on her during this period . But even then the commission held that there was no deficiency on part of the 2nd opposite party as the doctors who were taking care of her were competent enough to treat her.
It was also alleged that the patient died because of brain damage due to clot arising from the heart valve , and the clot had occured because of the fact that she never took anti - coagulation medicines as advised.
The case was dismissed.
Anjani Kumar v Madras Medical Mission & Anr
1998(2) CPJ 308 (TN SCDRC)
The complainant was suffering from a heart disease since birth , known as PDA , for which he was operated upon in the hospital of the opposite party after which he suffered a permanent loss of voice due to paralysis of the left vocal, cord.
The opposite party contended that injury to laryngeal nerve and paralysis of the left vocal cord.
The opposite party contended that the injury to laryngeal nerve and paralysis of the vocal cord is a well documented complication arising out of PDA surgery. Opposite party also testified that the incidence of vocal cord paralysus reported in world literature following PDA isout 4%. The reason being that the location of laryngeal nerve which supply the vocal cord is very close to the ducts. This evidence is not challenged in the cross examination and no contrary evidence was produced.
Also special care was taken to explain to the patient about the details of surgery and possible.
Poona Medical Foundation Ruby Hall Clinic v Maruti Rao L Tikare & Anr
1995 (1) CPJ 232 :1995 (1) CPR 661 (NCDRC)
Was an appeal against the decision of Maharashtra State Commission which had held that not providing necessary papers of treatment to the patient constitutes negligence and deficiency of service.
The National Commission held that this did not constitute negligence or deficiency in service as there was no legal duty cast on the hospital to furnish such documents to a patient .No material was placed before the Commission to show that either by law or by by convention or by practice there was any obligation on the part of the hospital to furnish to the patient full particulars of the surgical operation performed on him. Also the hospital had duly given the discharge card and slip and a case sheet wherein the particulars of the diagnosis and the treatment administered had been mentioned.