SUPREME COURTS ON MEDICAL NEGLIGENCE
SUMMARY OF JUDGMENTS OF SUPREME COURTS
Compilation:
Adv.C.K.SIVADASAN;
Consultant – Medical Negligence & Hospital Administration
FOR
EXPERT OPINION ON LEGAL ISSUES
&
COPIES OF FULL JUDGMENT OF CASE LAWS
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FOLDER NO – 15001
MISTAKE
IN MEDICAL PRESCRIPTION
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 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.
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FOLDER NO – 15002
CONTRACT OF / FOR SERVICE
& VICARIOUS LIABILITY OF HOSPITAL
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.
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FOLDER NO – 15003
TERMINATION OF
SERVICES OF MEDICAL CONSULTANT
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FOLDER NO – 15004
HOSPITAL - INDUSTRY
The services of respondents 2 and 3,
engaged as ward servants in the Hospital, under State control and management
were retrenched without payment of compensation as required by the Industrial
Disputes Act, 1947.
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FOLDER NO – 15005
INFORMED CONSENT
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
chances of failure 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.
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FOLDER NO – 15006
RESPONSIBILITY
OF HOSPITALS
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 failure to implead a particular
doctor will not absolve the hospital of its responsibilities.
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FOLDER NO – 15007
NEGLIGENCE – ANESTHETIST, SURGEON & HOSPITAL
The plaintiff was admitted in the Government hospital for a
minor ailment - chronic nasal discharge and the second defendant, E.N.T.
Surgeon who performed the tonsillectomy operation. The third defendant was
the Chief Anesthetist of the Hospital. After the operation the plaintiff did
not regain consciousness and thereafter for another fifteen days he was not able
to speak coherently. At the time of the discharge he was just able to
recognize the persons around and utter a few words. He could not even read or
write numerals. He lost all the knowledge and learning acquired by him. He
was a brilliant youngster aged 17 years, passed the P.U.C. examination with
100% in Mathematics and 93.5% in Physical Sciences.
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FOLDER NO – 15008
RELATIONSHIP BETWEEN DOCTOR AND PATIENT IN
HOSPITAL
Patient was admitted in the appellant hospital 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 consultant doctor.
The condition of the patient progressively grew worse and hence he was
referred to the Gastro-Enterology Department of the
India (1992)
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FOLDER NO – 15009
VICARIOUS LIABILITY OF HOSPITALS
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.
India (1996)
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FOLDER NO – 15010
HIGH DOSE OF MEDICINE &
PARENTS OF CHILD “CONSUMER”
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, 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 high dose of medicine having
being injected which led to brain damage. 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.
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FOR
EXPERT OPINION ON LEGAL ISSUES
&
COPIES OF FULL JUDGMENT OF CASE LAWS
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FOLDER NO – 15011
DISCLOSURE OF AIDS DIAGNOSIS
The appellant, an Assistant Surgeon whose marriage was fixed.
But the marriage was called off on the ground of blood test conducted at the
respondent’s hospital in which the appellant was found to be HIV(+). The
appellant went again to the respondent’s hospital and several tests were
conducted and he was found to be HIV(+). Since the marriage had been settled
but was subsequently called off, several people including members of the
appellant’s family and persons belonging to his community became aware of the
appellant’s HIV(+) status. This resulted in severe criticism of the appellant
and he was ostracized by the community. The appellant then approached the court
on the ground that the information which was required to be kept secret under
Medical ethics was disclosed illegally and, therefore, the respondents were
liable to pay damages.
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FOLDER NO – 15012
VICARIOUS LIABILITY OF HOSPITALS
The plaintiff developed certain gynecological problems. When she
consulted the Doctors attached to the defendant hospital, who referred the
plaintiff to the third defendant who is a qualified Doctor and a
gynecologist. The third defendant examined the plaintiff and advised her to
undergo a Master Health Check-up. The third defendant evaluated the various
test reports, of the plaintiff and diagnosed the ailment of the plaintiff as
a Bilateral Endometriotic Cyst and Uterine Fibroids. Operation was done by
the third defendant under general Anesthesia assisted by other Doctors,
nurses and staff attached to the second defendant hospital. After the effect
of anesthesia 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. Ultra sound tests were carried on. Without
giving any further treatments, the plaintiff was discharged from the care of
the defendants. She continued to have discomfort and pain and she consulted
with other Gynecologists who after X-Ray examination revealed that there was
some foreign object in the plaintiff’s abdomen region and during the
operation, the Doctors found a foreign body, namely a thick cloth of the size
12"x 12" which is a surgical pack with 18" string attached to
it. After removal of this foreign body, the plaintiff was relieved from the
pain and suffering.
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FOLDER NO – 15013
DISCOVERY
RULE
The wife of the plaintiff was given blood
transfusion in a Government hospital. in 1956. 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.
Court of
Appeal (US)
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FOLDER NO – 15014
HOSPITALS - APPLICABILITY OF THE ESI Act
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.
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FOLDER NO – 15015
TRANSFUSION
OF EXTRA BLOOD
The appellant’s husband was admitted to the
hospital for medical treatment and because of the negligence of the doctors
of the hospital he could not get proper medical treatment and ultimately he
died. It was alleged that on 3.8.1994 he was operated and was brought to the
Intensive Care Unit of the hospital. No attendant was allowed to see the
patient except through the glass windows of I.C.U. The deceased was operated
twice by Doctor of the hospital 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 the deceased was declared dead.
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FOLDER NO – 15016
AIDS TRANSMISSION THROUGH BLOOD TRANSFUSION
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. 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.
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FOLDER NO – 15017
UNQUALIFIED PHYSICIAN IN HOSPITAL & LACK
OF COORDINATION
The patient was treated in the OPD as O.P.No.2, by the Doctor of
the hospital as he was suffering from fever. After two days, at about 10.00
a.m., he was again taken to the Hospital and was admitted at 10.45 a.m. for
Epistaxis (bleeding from the nose). A blood test was ordered, results of
which were available at the same day at 2.30 p.m. The report showed that the
blood platelets count was 1.61ac/cu.mm. At about 3.00 p.m. the patient had
Epistaxis followed by vomiting and at 4.00 p.m. he again had fresh Epistaxis.
The patient expired at 9.00 p.m. on the same day. Postmortem report states that
the death was due to choking consequent to aspiration of blood in the airway
(from nasal bleeding). The postmortem report further contained a remark as:
In this type of bleeding (Epistaxis) possibility of aspiration is not
unforeseen and could have been prevented.
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FOLDER NO – 15018
NEGLIGENCE – BLOOD
TRANSFUSION
Wife of complainant No. 1 and mother of
complainant No. 2, received accidental burns - 50% TBSA III - was taken to a nearby
Hospital, immediately where she responded to the treatment well - On April
19, 1996, she was shifted in respondent Hospital - The condition started
improving at there - 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.
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FOLDER NO – 15019
NEGLIGENCE, CONSENT, NEUROFIBROMA
The complainant, then 20 years of age and a student of
Engineering, complaining of recurring fever visited the appellant hospital
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 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.
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FOLDER NO – 15020
CRIMINAL NEGLIGENCE OF HOSPITAL IN MEDICAL NEGLIGENCE
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.
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FOR
EXPERT OPINION ON LEGAL ISSUES
&
COPIES OF FULL JUDGMENT OF CASE LAWS
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FOLDER NO – 15021
ABDOMINAL PAD LEFT INSIDE & REMOVAL OF OVARY
The second plaintiff underwent an
operation on 29.09.1989 in the first
(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?
(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?
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FOLDER NO – 15022
DISCOVERY RULE
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.
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FOLDER NO – 15023
OVER
DOSE OF MEDICINE
A duly qualified medical practitioner gave to
his patient the injection of Sobita which consisted of sodium bismuth
tartrate as given in the British Pharmacopoeia. However, what was
administered was an overdose of Sobita. The patient died. The doctor was
accused of manslaughter, reckless and negligent act. He was convicted. The
matter reached in appeal before the House of Lords.
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FOLDER NO – 15024
MEDICAL NEGLIGENCE
Plaintiff was suffering from mental illness of
the depressive type and was advised by the Doctor attached to the defendant’s
Hospital to undergo electro-convulsive therapy. Prior to the treatment
Plaintiff signed a form of consent to the treatment but was not warned of the
risk of fracture involved. Even though the risk was very small and on the
first occasion when the treatment was given Plaintiff did not sustain any
fracture but when the treatment was repeated for the second time he sustained
fractures. No relaxant drugs or manual control were used except that a male
nurse stood on each side of the treatment couch throughout the treatment.
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FOLDER NO – 15025
NEEDLE
OF SYRINGE BROKEN
It is true that doctors could not be
held liable for unforseeable accidents but where it is shown that the
patients injury was due to the doctors failure to exercise the required
degree of care the burden of proving that the injury was brought on by some
unforseen cause shifts to the doctor In the present case it is not the
movement of the arm as claimed by the doctor that cause the accident The
doctor knew that the boy was nervous and should not have vaccinated him at
that time. Having decided to proceed the doctor was negligent when he failed
to take the necessary precaution of having the boys arm completely
immobilized. The scars were the direct result of this negligence.
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FOLDER NO – 15026
TREATMENT
USING UNKNOWN MEDICINE
The appellant, a registered Homoeopathic
medical practitioner, administered 24 drops of mother tincture stramonium and
a leaf of dhatura to the patient, aged about 20 years, as treatment for
Guinea Worm. After taking the medicine the patient started feeling restless
and ill, various antidotes were given but she was not relieved. She vomited
twice and in the evening she died. The Autopsy Surgeon sent the stomach with
its contents and pieces of liver, spleen and kidney to the chemical examiner
and reported that no poison could be detected in any of these items.
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FOLDER NO – 15027
MEDICAL NEGLIGENCE)
A medical practitioner was not to be held
liable simply because things went wrong from mischance or misadventure or
through an error of judgment in choosing one reasonable course of treatment
in preference of another. Medical practitioner
would be liable only where his conduct fell below that of the standards of a
reasonably competent practitioner in his field. A doctor who professes to
exercise a special skill must exercise the ordinary skill of his specialty.
Differences of opinion and practice exist, and will always exist, in the
medical as in other professions. There is seldom any one answer exclusive of
all others to problems of professional judgment.
(1968)
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FOLDER NO – 15028
LACK OF
INFORMED CONSENT
Plaintiff
was admitted to the hospital for treatment of a duodenal ulcer. The
defendant, a surgeon, who after examining plaintiff, agreed plaintiff had an
intractable peptic duodenal ulcer and that surgery was indicated. Al-though
surgeon explained the nature of the operation to plaintiff, he did not
discuss any of the inherent risks of the surgery. A two-hour operation was
performed the next day, in the course of which the presence of a small ulcer
was confirmed. Following the surgery the ulcer disappeared and he was
permitted to go home eight days later. However, the day after he returned
home, plaintiff began to experience intense pain in his abdomen. surgeon
advised him to return to the hospital and in readmission plaintiff went into
shock and emergency surgery was performed. It was discovered plaintiff was
bleeding internally as a result of a severed artery at the hilum of his
spleen. Because of the serious-ness of the haemorrhaging and since the spleen
of an adult may be removed without adverse effects, defendant decided to
remove the spleen. A month after discharge he was readmitted because of sharp
pains in his stomach. When plaintiff began to vomit blood the defendant
concluded that a third operation was indicated: a gastrectomy with removal of
50 percent of plaintiff’s stomach to reduce its acid-producing capacity. Some
time after the surgery, plaintiff was discharged, but subsequently had to be
hospitalized yet again when he began to bleed internally due to the premature
absorption of a suture, another inherent risk of surgery.
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FOLDER NO – 15029
NON-DISCLOSURE
OF RISKS OF TREATMENT & INFORMED CONSENT
The law on medical negligence also has to keep
up with the advances in the medical science as to treatment as also
diagnostics. Standard of care in such cases will involve the duty to disclose
to patients about the risks of serious side effects or about alternative
treatments. It is well established
that the physician must seek and secure his patient’s consent before
commencing an operation or other course of treatment. It is also clear that
the consent, to be efficacious, must be free from imposition upon the
patient. It is the settled rule that therapy not authorized by the patient
may amount to a tort - a common law battery - by the physician. And it is
evident that it is normally impossible to obtain a consent worthy of the name
unless the physician first elucidates the options and the perils for the
patient’s edification. Thus the physician has long borne a duty, on pain of
liability for unauthorized treatment, to make adequate disclosure to the
patient.
U
S (1972)
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FOLDER NO – 15030
LEARNING AND SKILL
The test of
reasonable care applies in medical malpractice cases as in other cases where
fault is alleged. The medical man must possess and use, that reasonable
degree of learning and skill ordinarily possessed by practitioners in similar
communities in similar cases. Whether or not such test has been met depends,
of course, upon the particular circumstances of each case.
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FOR
EXPERT OPINION ON LEGAL ISSUES
&
COPIES OF FULL JUDGMENT OF CASE LAWS
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FOLDER NO – 15031
PROFESSIONAL
PRACTICES
In many cases an approved
professional practice as to disclosure will be decisive. But professions may
adopt unreasonable practices. Practices may develop in professions,
particularly as to disclosure, not because they serve the interests of the
clients, but because they protect the interests or convenience of members of
the profession. The court has an obligation to scrutinize professional
practices to ensure that they accord with the standard of reasonableness
imposed by the law. A practice as to disclosure approved and adopted by a
profession or section of it may be in many cases the determining
consideration as to what is reasonable. On the facts of a particular case the
answer to the question whether the defendant’s conduct conformed to approved
professional practice may decide the issue of negligence, and the test has
been posed in such terms in a number of cases. The ultimate question,
however, is not whether the defendant’s conduct accords with the practices of
his profession or some part of it, but whether it conforms to the standard of
reasonable care demanded by the law. That is a question for the court and the
duty of deciding it cannot be delegated to any profession or group in the
community.
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FOLDER NO – 15032
NON-DISCLOSURE
OF RISKS OF TREATMENT)
A surgeon, warned the plaintiff of the possibility of disturbing
a nerve root while advising an operation on the spinal column to relieve
shoulder and neck pain. He did not however mention the possibility of damage
to the spinal cord. Though the operation was performed without negligence,
the plaintiff sustained damage to spinal cord resulting in partial paralysis.
The plaintiff alleged that defendant was negligent in failing to inform her
about the said risk and that had she known the true position, she would not
have accepted the treatment.
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FOLDER NO – 15033
INFORMED CONSENT)
An 84 year old incompetent nursing home
resident who had suffered irreversible mental and physical ailments, the
court decided to base its decision on the common law right to self
determination and informed consent. This right can be exercised by a
surrogate decision maker when there was clear evidence that the incompetent
person would have exercised it. Where such evidence was lacking the Court
held that an individual’s right could still be invoked in certain
circumstances under objective ‘best interest’ standards. Where no trustworthy
evidence existed that the individual would have wanted to terminate
treatment, and a person’s suffering would make the administration of life
sustaining treatment inhumane, a pure objective standard could be used to
terminate the treatment. If none of these conditions obtained, it was best to
err in favor of preserving life.
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FOLDER NO – 15034
PROFESSIONAL
COMPETENCE
From these general statements it follows that a
professional man should command the corpus of knowledge which forms part of
the professional equipment of the ordinary member of his profession. He
should not lag behind other ordinary assiduous and intelligent members of his
profession in knowledge of new advances, discoveries and developments in his
field. He should have such awareness as an ordinarily competent practitioner
would have of the deficiencies in his knowledge and the limitations on his
skill. He should be alert to the hazards and risks in any professional task
he undertakes to the extent that other ordinarily competent members of the
profession would be alert. He must bring to any professional task he
undertakes no less expertise, skill and care than other ordinarily competent
members of his profession would bring, but need bring no more. The standard
is that of the reasonable average. The law does not require of a professional
man that he be a paragon combining the qualities of polymath and prophet.
(1988)
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FOLDER NO – 15035
PERMISSION TO WITHDRAW THE LIFE SUPPORT - ARTICLE 226
No doubt, the ordinary
practice in our High Courts since the time of framing of the Constitution in
1950 is that petitions filed under Article 226 of the Constitution pray for a
writ of the kind referred to in the provision. However, from the very
language of the Article 226, a petition can also be made to the High Court
under Article 226 of the Constitution praying for an order or direction, and
not for any writ. Hence, in our opinion, Article 226 gives abundant power to
the High Court to pass suitable orders on the application filed by the near
relatives or next friend or the doctors/hospital staff praying for permission
to withdraw the life support to an incompetent person.
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FOLDER NO – 15036
PROFESSIONAL
OBLIGATION)
The petitioner, a human right activist, filed
this writ petition in public interest on the basis of a newspaper report
concerning the death of a scooterist who was knocked down by a speeding car.
The report further states that the injured person was taken to the nearest
hospital but the doctors there refused to attend on him; that they told that
he be taken to another hospital, located some 20 kilometers away, which was
authorised to handle medico-legal cases; and that the victim succumbed to his
injuries before he could be taken to the other hospital. The petitioner has
prayed the directions be issued to the Union of India that every injured
citizen brought for treatment should instantaneously be given medical aid to
preserve life and thereafter the procedural criminal law should be allowed to
operate in order to avoid negligent death, and in the event of breach of such
direction, apart from any action that may be taken for negligence,
appropriate compensation should be admissible.
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FOLDER NO – 15037
SOVEREIGN AS PARENS
PATRIAE (FATHER OF THE COUNTRY)
The parens patriae
(father of the country) jurisdiction was the jurisdiction of the Crown, which
could be traced to the 13th Century. This principle laid down that as the
Sovereign it was the duty of the King to protect the person and property of
those who were unable to protect themselves. The Court, as a wing of the
State, has inherited the parens patriae
jurisdiction which formerly belonged to the King.
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FOLDER NO – 15038
WITHDRAWAL OF LIFE SUPPORT
Patient sustained injuries in an automobile
accident and lay in a
U S (1990)
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FOLDER NO – 15039
PARENS PATRIAE
Parens
patriae is the inherent power
and authority of a legislature to provide protection to the person and
property of persons non sui juris, such as minor, insane, and incompetent
persons, but the words parens patriae
meaning thereby ‘the father of the country’, were applied originally to the
King and are used to designate the State referring to its sovereign power of
guardianship over persons under disability. Parens patriae jurisdiction, it has been explained, is the right
of the sovereign and imposes a duty on the sovereign, in public interest, to
protect persons under disability who have no rightful protector. The
connotation of the term parens patriae
differs from country to country, for instance, in
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FOLDER NO – 15040
PHYSICIAN ASSISTED SUICIDE
Patient was diagnosed with Amyotrophic Lateral
Sclerosis (ALS), and requested the Canadian Supreme Court to allow someone to
aid her in ending her life. Her condition was deteriorating rapidly, and the
doctors told her that she would soon lose the ability to swallow, speak,
walk, and move her body without assistance. Thereafter she would lose her
capacity to breathe without a respirator, to eat without a gastrotomy, and
would eventually be confined to bed. Her life expectancy was 2 to 14 months.
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FOR
EXPERT OPINION ON LEGAL ISSUES
&
COPIES OF FULL JUDGMENT OF CASE LAWS
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FOLDER NO – 15041
EUTHANASIA BY DOCTORS
Anthony Bland aged 17, met with disaster as a
result, he suffered catastrophic and irreversible damage to the higher
centres of the brain. For three years, he was in a condition known as
‘persistent vegetative state’ (PVS), due to the destruction of the cerebral
cortex on account of prolonged deprivation of oxygen, and the cerebral cortex
of Anthony had resolved into a watery mass. Since the cortex is the seat of
cognitive function and sensory capacity he could not see, hear, feel anything
or communicate in any way and lost consciousness. However, his brain-stem,
which controls the reflective functions of the body, in particular the heart
beat, breathing and digestion, continued to operate. In order to maintain Mr.
Bland in his condition, feeding and hydration were achieved by artificial
means of a nasogastric tube while the excretory functions were regulated by a
catheter and enemas. According to eminent medical opinion, there was no
prospect whatsoever that he would ever make a recovery from his condition,
but there was every likelihood that he would maintain this state of existence
for many years to come provided the artificial means of medical care was
continued. In this state of affairs the medical men in charge of Anthony
Bland case took the view, which was supported by his parents, that no useful
purpose would be served by continuing medical care, and that artificial
feeding and other measures aimed at prolonging his existence should be
stopped.
|
|
FOLDER NO – 15042
EUTHANASIA - LIFE IS NOT MERE LIVING BUT LIVING IN HEALTH
Protagonism of euthanasia on the view that
existence in persistent vegetative state (PVS) is not a benefit to the
patient of a terminal illness being unrelated to the principle of ‘sanctity
of life’ or the ‘right to live with dignity’ is of no assistance to determine
the scope of Article 21 for deciding whether the guarantee of right to life
therein includes the ‘right to die’. The right to life including the right to
live with human dignity would mean the existence of such a right upto the end
of natural life. This also includes the right to a dignified life upto the
point of death including a dignified procedure of death. In other words, this
may include the right of a dying man to also die with dignity when his life
is ebbing out. But the ‘right to die’ with dignity at the end of life is not
to be confused or equated with the right to die an unnatural death curtailing
the natural span of life.
A question may arise, in the context
of a dying man, who is, terminally ill or in a persistent vegetative state
that he may be permitted to terminate it by a premature extinction of his
life in those circumstances. This category of cases may fall within the ambit
of the ‘right to die’ with dignity as a part of right to live with dignity,
when death due to termination of natural life is certain and imminent and the
process of natural death has commenced. These are not cases of extinguishing
life but only of accelerating conclusion of the process of natural death
which has already commenced.
|
|
FOLDER NO – 15043
FORENSIC AUTOPSY
The petitioner, an old man, past sixty, whose
sons and son-in-law were allegedly carried away by Mhow police on the night
of 15.8.1992 and later shown to have been arrested on 18.8.1992, in
connection with an offence under Section 457, Indian Penal Code, registered
at the Police Station, had moved the Court of A.C.J.M. for their release but
in vain. It was on the 19th
that he was asked by a senior Police Officer to see his son in the
The primary object of forensic autopsy is to
determine the cause of death. It is here that the pathologists owe duty even
to the dead. Sadly enough the five medical minds entrusted with the task have
betrayed the faith by keeping mum on the point. Apart from determining the
cause of death these doctors again forgot the dictum propounded by Dabot in
U.S.A. as far back as 1912 that even the dead can teach the living, which
still holds good--emphasizing the value of autopsies in detecting diagnostic
errors.
India (1995)
|
|
FOLDER NO – 15044
DOCTRINE OF RES IPSA LOQUITUR
A mop was left inside the lady patient’s
abdomen during an operation. Peritonitis developed which led to a second
surgery being performed on her, but she could not survive. Liability for
negligence was fastened on the surgeon because no valid explanation was
forthcoming for the mop having been left inside the abdomen of the lady. The
doctrine of res ipsa loquitur was
held applicable.
India (1996)
|
|
FOLDER NO – 15045
CONSTITUTIONAL OBLIGATION
The patient fell off a train at a Station. As a
result of the said fall he suffered serious head injuries and brain
hemorrhage. He was taken to the Primary Health Centre. Since necessary
facilities for treatment were not available at the Primary Health Centre, the
medical officer in charge of the Centre referred him to the Sub-Divisional
Hospital or any other State hospital for better treatment. He was taken to
|
|
FOLDER NO – 15046
RIGHT TO ASSISTED SUICIDE
The decision to commit suicide with
the assistance of another may be just as personal and profound as the
decision to refuse unwanted medical treatment, but it has never enjoyed
similar legal protection. Indeed the two acts are widely and reasonably
regarded as quite distinct. Throughout the nation, Americans are engaged in
an earnest and profound debate about the morality, legality and practicality
of physician assisted suicide. Our holding permits this debate to continue,
as it should in a democratic society.
|
|
FOLDER NO – 15047
RIGHT TO ASSISTED SUICIDE
The distinction between letting a
patient die and making that patient die is important, logical, rational, and
well established.
|
|
FOLDER NO – 15048
LIABILITY FOR NEGLIGENT TREATMENT
OR DIAGNOSIS
The court is not bound to hold that a defendant
doctor escapes liability for negligent treatment or diagnosis just because he
leads evidence from a number of medical experts who are genuinely of opinion
that the defendant’s treatment or diagnosis accorded with sound medical
practice. The use of these adjectives - responsible, reasonable and
respectable - all show that the court has to be satisfied that the exponents
of the body of opinion relied upon can demonstrate that such opinion has a
logical basis. In particular in cases involving, as they so often do, the
weighing of risks against benefits, the judge before accepting a body of
opinion as being responsible, reasonable and respectable, will need to be
satisfied that, in forming their views, the experts have directed their minds
to the question of comparative risks and benefits and have reached a
defensible conclusion on the matter.
|
|
FOLDER NO – 15049
FAILED DIAGNOSIS
A psychiatric out-patient,
who was known to be dangerous, murdered a four year old child. The claim was
that the defendant had failed to diagnose that there was a real, substantial,
and foreseeable risk of the patient committing serious sexual offences
against children and that, as a result, it had failed to provide any adequate
treatment for him to reduce the risk of him committing such offences and/or
to prevent him from being released from the hospital while he was at risk of
committing such offences.
|
|
FOLDER NO – 15050
MEDICO-LEGAL CASE - ASSISTANCE TO OFFENDERS
A
presumption can be drawn only from facts - and not from other presumptions -
by a process of probable and logical reasoning.
Under Section 30 of the Evidence
Act a confession of an accused is relevant and admissible against a
co-accused if both are jointly facing trial for the same offence. At the stage of framing charges the
court is required to confine its attention to only those materials collected
during investigation which can be legally translated into evidence and not
upon further evidence that the prosecution may, adduce in the trial, which
would commence only after the charges are framed and the accused denies the
charges.
|
|
FOR
EXPERT OPINION ON LEGAL ISSUES
&
COPIES OF FULL JUDGMENT OF CASE LAWS
|
|
FOLDER NO – 15051
RIGHT TO PRACTICE
ALLOPATHIC MEDICINE
The controversy in these cases was triggered off
by the issuance of declarations by the state Governments under clause (iii)
of Rule 2(ee) of the Drugs and Cosmetics Rules, 1945 which defines
“Registered Medical Practitioner”. Based on such declarations, notified
Vaids/Hakims claim right to prescribe Allopathic drugs covered by the Indian
Drugs and Cosmetics Act, 1940 and who have obtained degrees in integrated
courses claim right to practice allopathic system of medicine.
|
|
FOLDER NO – 15052
BURDEN OF PROVING NEGLIGENCE
Vinod Kumar Gupta lodged in the
Central Jail,
|
|
FOLDER NO – 15053
LACK OF QUALIFICATION
The professional may be held liable for
negligence on the ground that he was not possessed of the requisite skill
which he professes to have. A homeopath liable for negligence for prescribing
allopathic medicines and administering glucose drip and giving injections.
|
|
FOLDER NO – 15054
EXPERT OPINION
Section 45 of the Evidence Act which makes
opinion of experts admissible lays down that when the court has to form an
opinion upon a point of foreign law, or of science, or art, or as to identity
of handwriting or finger impressions, the opinions upon that point of persons
specially skilled in such foreign law, science or art, or in questions as to
identity of handwriting, or finger impressions are relevant facts. Therefore,
in order to bring the evidence of a witness as that of an expert it has to be
shown that he has made a special study of the subject or acquired a special
experience therein or in other words that he is skilled and has adequate
knowledge of the subject. An expert is not a witness of fact. His evidence is
really of an advisory character. The credibility of such a witness depends on
the reasons stated in support of his conclusions and the data and material
furnished which form the basis of his conclusions. The report submitted by an
expert does not go in evidence automatically. He is to be examined as a
witness in court and has to face cross- examination.
|
|
FOLDER NO – 15055
MEDICAL TERMINATION OF PREGNANCY
The appellant was having a
degree of Bachelor of Medicine in Electrohomoeopathy from the Board of
Electrohomoeopathy Systems of Medicines. He did not possess any recognized
medical qualification as defined in the Indian Medical Council Act, 1956. Yet
he performed an operation to terminate the three month pregnancy in a woman,
who died in the clinic due to shock due to non application of anesthesia.
|
|
FOLDER NO – 15056
RECKLESSNESS
OR GROSS NEGLIGENCE
Deceased was young man of 38 years without
cardiac problem. The doctors while conducting minor operation for removing
nasal deformity, gave incision at wrong part due to that blood seeped into
the respiratory passage and because of that patient immediately collapsed and
died and it was also attempted to show by the accused persons that he was
alive at that time and was taken to another hospital for further medical
attention. It is clear from the record that patient had actually died at the
clinic of the accused.
|
|
FOLDER NO – 15057
CRIMINAL NEGLIGENCE – DETAILED ANALYSIS OF EVIDENCE ESSENTIAL
Appellant’s wife was admitted in the first respondent’s hospital
for the delivery with medical intervention of first respondent she delivered
a dead child, there was profuse bleeding and later died. The appellant
alleged that in spite of respondent request to take his wife to the medical
college hospital, the first respondent told him that the patient has no
problem and everything would be alright within short time. The appellant
filed a complaint before the police and after investigation the police filed
a report. Thereafter, the appellant filed a criminal complaint before the
Magistrate. Apart from the statement given by the complainant, he also got
examined the Doctor, who conducted the post-mortem examination and also a
Radiologist.
|
|
FOLDER NO – 15058
NON AVAILABILITY
OF OXYGEN CYLINDER
Patient was admitted in a private ward of
Hospital. On 22.2.1995 at about 11 p.m., he felt difficulty in breathing. The
complainant’s elder brother contacted the duty nurse, who in her turn called
some doctor to attend to the patient. No doctor turned up for about 20 to 25
minutes. Then, the appellant before us and another doctor came to the room of
the patient. An oxygen cylinder was brought and connected to the mouth of the
patient but the breathing problem increased further. The patient tried to get
up but the medical staff asked him to remain in the bed. The oxygen cylinder
was found to be empty. There was no other gas cylinder available in the room.
complainant’s elder brother went to the adjoining room and brought a gas cylinder
therefrom. However, there was no arrangement to make the gas cylinder
functional and in-between 5 to 7 minutes were wasted. By this time, another
doctor came, who declared that the patient was dead.
|
|
FOLDER NO – 15059
ACUTE BRONCHIAL ASTHMA
Akash, aged about 14
years, was suffering from an acute form of Bronchial Asthma since his
childhood. On the fateful day, he suffered an acute incident of Bronchial
Asthmatic attack. Resultantly, he developed breathing problems and was rushed
to the O.P.D./ Casualty section of the Hospital by his parents. It was alleged that when Akash was rushed to the hospital, the doctor on duty,
respondent No. 2, did not attend him and provide him immediate medical
treatment or first-aid. This omission her part, it was alleged, cost Akash
his life. The accused, had the option of resuscitation in the casualty or to
refer the case to the main casualty of associated hospital. She opted to
refer the case to the associated hospital as proper resuscitation equipment
was unavailable for that particular patient. This option was not refuted by
the HOD Paediatrics and Senior Paediatrician of Hospital. Father of Akash, a
doctor himself, filed a complaint. Respondent No. 2 was informed by the
father of Akash that he was a regular patient of the hospital for the past
eight years and that whenever such an emergency situation arose, his son was
given Oxygen and Injection of Hydrocortisone and Aminophyline and Salbutamol
by Nebuliser and that the instrument for resuscitation could be brought from
Medical College or associated Hospital, she blatantly disregarded and
overruled the suggestions. It was also contended that on seeing the grossly
negligent and callous attitude of the Respondent No. 2 and the deteriorating
condition of his dying son, the petitioner had to remove his son with his own
hands and take him in that condition to associated Hospital, where he was
declared brought dead by doctors on duty.
|
|
FOLDER NO – 15060
LASER TREATMENT, IPC 304A, QUASHING OF FIR
Late Aditya Pal was
admitted in the hospital for multiple laserisation of his papilloma and
during the procedure one of the pulses caused a luminescence in the airway
leading to withdrawal of the procedure as the deceased suffered laser burns
in the airway and he was shifted to ventilator support in Paediatric
Intensive Care Unit (PICU). For the laser burns during the procedure, he was
stabilized initially in O.T and then shifted to ICU for further management
where he was put on mechanical ventilator and allegedly started on IV
antibiotics and vigorous supportive care. Post mortem was conducted by a
board and gave a post mortem report. The relevant observations of the post
mortem report as follows:- Alleged h/o death in the hospital while he was
receiving laser resection under general anesthesia.
Cause of Death: Extensive
ante-mortem laser burn injuries to Oropharynx, Nasopharynx, Supraglottis,
Laryngeal Cavity, Trachea upto cervical C-7 level resulting into R.T.I
(Respiratory Track Infection), Lung Infection with Septicaemia.
Opinion: The mentioned burn injury
which is primary cause of death was unwarranted. This speaks failure of
taking required precautions, care and skill in adopted procedure. This is res ipsa loquitur a case of gross
medical negligence.
|
|
FOR
EXPERT OPINION ON LEGAL ISSUES
&
COPIES OF FULL JUDGMENT OF CASE LAWS
|
|
FOLDER NO – 15061
USAGE OF
STEROIDS IN TREATMENT
Anuradha developed fever along with skin rash
and defendant doctor, attended and examined Anuradha at her parental
residence on a professional call. However, two weeks thereafter, the skin
rash reappeared more aggressively. Defendant doctor was again contacted and
after examining Anuradha, he prescribed Depomedrol injection 80 mg twice
daily for the next three days. Despite the injection, Anuradha’s condition
deteriorated rapidly from bad to worse over the next few days. Accordingly,
she was admitted at the Advanced Medicare Research Institute (AMRI) later
under Doctor’s supervision. Anuradha was also examined by another Doctor and
found that she had been suffering from Erithima plus blisters. Her condition,
however, continued to deteriorate further. A Consultant was also consulted.
Anuradha was shifted to
|
|
FOLDER NO – 15062
PUERPERAL STERILISATION
Assistant Surgeon,
|
|
FOLDER NO – 15063
NEGLIGENCE
The plaintiff was
admitted in General Hospital in the early hours of 26.6.1995. On the said
day, at about 8.30 a.m. the first defendant is said to have examined her and
according to the plaintiff she and her husband were told that a surgery is
necessary to cure her illness. Several tests were done. All along, according
to the plaintiff, the first defendant reiterated that a surgery was the only
option. But, the first defendant became indifferent and careless in treating
the plaintiff and discharged her on 11.7.1995 when she had not recovered from
her illness. Thereafter she had to go to Medical Centre, a private hospital
and to undergo a surgery. She had incurred heavy expenses and had undergone
lot of sufferings. Pointing out that the need for operation arose due to the
negligence on the part of the first defendant doctor, the suit was laid for
damages.
Issues before the Court:
1) Were not the courts
below wrong in awarding damages to the plaintiff in the absence of any proof
regarding negligent conduct from the part of the 1st defendant resulting in
any injury to the plaintiff?
2) Were not the courts
below totally in error in completely ignoring the evidence of P.W.7 and
Ext.X2 that the plaintiff had a long previous history of stomach complaints
and she had undergone several months of continuous treatment at Medical
Centre for discharge of blood through mouth and anus etc even after the
surgery in July 1996 and the claimed cure and yet finding the 1st defendant is guilty of negligence in not
performing a surgery on the plaintiff?
3. Were not the courts
below totally in error in allowing Rs.6,000/- also as compensation to the
plaintiff which amount was admittedly expended for the treatments at Medical
Centre unconnected with the surgery for intussusception?
4. The Hon’ble Supreme
Court of India in AIR 1969 SC 132, held that a Doctor is entitled to decide
the course of treatment in an emergency. Were not the court below wrong in
refusing to follow this principle of law laid down by the apex court and
finding the first defendant guilty of negligence in not operating on the
plaintiff?
5. In as much as there is
no proof of any injury being suffered by the plaintiff due to the alleged
negligence of the 1st defendant are not the judgments against the dictum laid
down in AIR 1936 PC 154?
6. Has not the courts
below completely misread the pleadings and evidence in the case and came to
absurd conclusions?
7. Is the judgment and decree passed
nearly a year after the final hearing valid in law? Is not such judgment
invalid and inoperative in view of the mandate under Order 20 of CPC?
|
|
FOLDER NO – 15064
IMA & AYUSH PRACTITIONERS
Writ Petition has been preferred
under Article 226 of the Constitution of India praying for the issue of a
writ of mandamus to forbear the respondents and their men not to interfere
with the professional practice of the members of the petitioner association
and taking action in the name of Anti-quackery action against the members of
the petitioner’s association who are practicing their profession as per the
Regulations passed by the Central Council of Indian Medicine, New Delhi and
as per the Indian Medical Degrees (Madras Amendment) Act, 1940.
|
|
FOLDER NO – 15065
EUTHANASIA
The petitioner (through her best friend) was a
staff Nurse working in a Hospital. She was attacked by a sweeper in the
hospital who wrapped a dog chain around her neck, yanked her back with it and
sodomized her. Due to strangulation by the dog chain the supply of oxygen to
the brain stopped and the brain got damaged. The Neurologist found that she
had plantar’s extensor, which indicates damage to the cortex or some other
part of the brain. She also had brain stem contusion injury with associated
cervical cord injury. 36 years have expired since the incident and now she is
about 60 years of age. She is featherweight, and her brittle bones could
break if her hand or leg are awkwardly caught. She has stopped menstruating and
her skin is now like papier mache
stretched over a skeleton. She is prone to bed sores. Her wrists are twisted
inwards. Her teeth had decayed causing her immense pain. She can only be
given mashed food, on which she survives. She is in a Persistent Vegetative
State (P.V.S.) and virtually a dead person and has no state of awareness, and
her brain is virtually dead. She can neither see, nor hear anything nor can
she express herself or communicate, in any manner whatsoever. Her excreta and
the urine is discharged on the bed itself.
Judged by any parameter, she cannot be said to be a living person and
it is only on account of mashed food which is put into her mouth that there
is a facade of life which is totally devoid of any human element. There is
not the slightest possibility of any improvement in her condition and her
body lies on the bed in the Hospital like a dead animal, and this has been
the position for the last 36 years. The prayer of the petitioner is that the
respondents be directed to stop feeding the patient, and let her die
peacefully.
|
|
FOLDER NO – 15066
GROSS
NEGLIGENCE
As the complainant was feeling serious pain in
her upper left side tooth and the petitioner advised her that the tooth was
required to be taken out, which she agreed. It is alleged in the complaint
petition that the petitioner gave her an injection in her upper left side gum
and also prescribed some medicines and asked her to come after few days. It
is alleged that after few hours, the face of the complainant started swelling
and she started feeling pain in her head. She went to another hospital on the
next day and she was told that the injection given by the petitioner had
reacted. Thereafter the complainant started loosing her vision in both eyes
and also started developing severe pain in her head. There was slight
improvement in her right eye but her left eye became completely blind.
|
|
FOLDER NO – 15067
EUTHANASIA BY DOCTORS
The patient suffered severe brain damage as a
result of anoxia, and entered into PVS. Her father sought judicial approval
to disconnect her respirator. The Court granted the prayer, holding that
Karen had a right of privacy grounded in the U.S. Constitution to terminate
treatment. The Court concluded that the way Karen’s right to privacy could be
exercised would be to allow her guardian and family to decide whether she
would exercise it in the circumstances.
|
|
FOLDER NO – 15068
EMERGENCY
TREATMENT
5 year old child suffered a severe
cut to her elbow which severed her muscles nerves and the humeral artery and
caused extensive blood loss. She was taken to the Emergency room of the
hospital and the emergency doctor
performed vein dissection to enable replacement of lost fluids through an
intra-venous drip. On realizing his inability to join the severed artery, he
sent the patient to another pediatric hospital after providing with
preliminary requirements but without blood transfusion. He prepared a
transfer certificate stating the child was in state of pre-shock and
transported in an ambulance with nurse and other attendants. After her
arrival at pediatric hospital, the child suffered a massive
cardio-respiratory arrest and leading to brain damage due to the
insufficiency of oxygen. The honorable court analyzed the following issues in
this case:
1. The veracity of the decision of
the doctor to transfer the child to the pediatric hospital at that particular
time.
2. The veracity of the decision of
the doctor not to proceed with a blood analysis and transfusion before the
transfer.
3. Depth of dedication shown by the
doctor, while transmitting information to the pediatric hospital, regarding
condition of the patient at the time of the transfer.
|
|
FOLDER NO – 15069
ADDITIONAL TREATMENT WITHOUT CONSENT
The additional or further treatment which can
be given (outside the consented procedure) should be confined to only such
treatment as is necessary to meet the emergency, and as such needs to be
carried out at once and before the patient is likely to be in a position to
make a decision for himself. A surgeon performs an operation without his
consent on a patient temporarily rendered unconscious in an accident; he
should do no more than is reasonably required, in the best interests of the
patient, before he recovers consciousness. There is no practical difficulty
arising from this requirement, which derives from the fact that the patient
is expected before long to regain consciousness and can then be consulted
about longer term measures.
|
|
FOLDER NO – 15070
PROFESSIONAL STANDARD OF CARE
If a person holds himself out as possessing special skill and
knowledge and he is consulted, as possessing such skill and knowledge, by or
on behalf of a patient, he owes a duty to the patient to use due caution in
undertaking the treatment. If he accepts the responsibility and undertakes
the treatment and the patient submits to his direction and treatment
accordingly, he owes a duty to the patient to use diligence, care, knowledge,
skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary
that the service be rendered for reward. The law requires a fair and
reasonable standard of care and competence. Each case must, of course, depend
upon its own particular facts. If a physician has rendered treatment in a
manner which is in conformity with the standard and recognized practice
followed by the members of his profession, unless that practice is
demonstrably unsafe or dangerous, that fact affords cogent evidence that he
has exercised that reasonable degree of care and skill which may be required
of him.
|
|
FOR
EXPERT OPINION ON LEGAL ISSUES
&
COPIES OF FULL JUDGMENT OF CASE LAWS
|
|
FOLDER NO – 15071
NEGLIGENCE - ONUS OF PROOF
Where a suit is filed for damages
against a doctor, the onus of proof is upon the plaintiff, and if he is to
succeed he must demonstrate, beyond reasonable doubt, that the defendant was
negligent, and that his negligence caused the injury of which the plaintiff
complains.
|
|
FOLDER NO – 15072
PROFESSIONAL
SKILL
A surgeon does not become an actual insurer; he
is only bound to display sufficient skill and knowledge of his profession. If
from some accident, or some variation in the frame of a particular
individual, an injury happens, it is not a fault in the medical man.
|
|
FOLDER NO – 15073
UNAUTHORIZED SURGICAL PROCEDURE
Whether in an action for negligence/battery
for performance of an unauthorized surgical procedure, the doctor can put
forth as defence the consent given for a particular operative procedure, as
consent for any additional or further operative procedures performed in the
interests of the patient. It was considering a claim for battery by a patient
who underwent a caesarean section. During the course of caesarean section,
the doctor found fibroid tumors in the patient’s uterus. Being of the view
that such tumors would be a danger in case of future pregnancy, he performed
a sterilization operation.
|
|
FOLDER NO – 15074
TRAINEE
DOCTOR
When it comes to trainees, the courts make no allowance when
assessing liability. In a number of cases courts has rejected that junior
doctors are inexperienced and mistakes can happen. According to the courts,
junior doctors are required to adhere to the same standard of care as their
senior colleagues; and also seek senior opinion when required. At that stage
the term “team negligence” was introduced.
|
|
FOLDER NO – 15075
NO MEDICAL PRACTITIONER IS AN INSURER
Medical Science has conferred great benefits on
mankind, but these benefits are attended by considerable risks. Every
surgical operation is attended by risks. We cannot take benefits without
taking the risks. Every advance in technique is also attended by risks.
Doctors like the rest of us have to learn by experience, and experience often
teaches in a hard way. In all these case you will find that the three
questions, duty, causation, and remoteness run continually into one another.
The job of the Doctors should be approached
from the stand point of the professional, that no Medical Practitioner is an
insurer for effecting a cure nor should Courts condemn an honest exercise of
judgment even though the other practitioner or specialist disagrees with the
professional diagnosis or treatment.
|
|
FOLDER NO – 15076
RULE OF
LIMITATION
The discovery doctrine is applicable
in other than a foreign object case, where, the plaintiff was undergoing
x-ray therapy treatment for the removal of warts from her heel. At the time
of the treatment she was aware of nothing indicating any radiation injury.
The court held that the statute of limitations did not commence to run until
the plaintiff was first put on notice that she had sustained an injury or had
reason to believe that her right of action had accrued.
|
|
FOLDER NO – 15077
LOGICAL APPROACH
Three women developed cervical cancer after a
negative screening test. Even though the claimant’s slides showed abnormal cells,
they were labeled as normal. The defence put forth by health authority was
that abnormal cells are differently interpreted and this should be decided
according to the Bolam test. The trial judge and the Court of Appeal agreed
that the “logical” act by a reasonable person is to label these slides as
borderline so Bolitho’s test was preferred over Bolam’s test.
|
|
FOLDER NO – 15078
DIFFERENCES OF OPINION
In any profession, especially in surgery,
genuine differences of opinion may arise. It can be found that both sides of
debate advance medical reasons for their respective judgment. Also, if
deviation from accepted clinical practice is considered to be negligence;
this might reflect badly on the advances in all the surgical fields; this
suggests that clinicians will not be able to apply an original technique or
surgical procedure without facing suspension and a case of negligence. Lord
Clyde said that “such thing could be disastrous and severely affect the
progress in medical science”
(1955)
|
|
FOLDER NO – 15079
NEGLIGENCE - RES IPSA LOQUITUR
The
legal principles bearing upon the degree of care and skill which may be
expected of physicians or surgeons are well settled but the difficulty arises
in applying them to particular circumstances. Every medical practitioner must
bring to his task a reasonable degree of skill and knowledge and must
exercise a reasonable degree of care. He is bound to exercise that degree of
care and skill which could reasonably be expected of a normal, prudent
practitioner of the same experience and standing, and if he holds himself out
as a specialist, a higher degree of skill is required of him than of one who
does not profess to be so qualified by special training and ability.
|
|
FOLDER NO – 15080
RULE OF
LIMITATION
A surgeon had left a sponge in the patient’s
body when he performed an operation. It was held that the statute of
limitation did not begin to run until years later when the presence of the
sponge in the patient’s body was discovered.
|
|
FOR
EXPERT OPINION ON LEGAL ISSUES
&
COPIES OF FULL JUDGMENT OF CASE LAWS
|
|
FOLDER NO – 15081
DOCTOR IS NOT A GUARANTOR
Certainly, doctors
should not be held responsible for unforeseeable accidents which may occur in
the normal course of the exercise of their profession. Cases necessarily
occur in which, in spite of exercising the greatest caution, accidents supervene
and for which nobody can be held responsible. The doctor is not a guarantor
of the operation which he performs or the attention he gives. If he displays
normal knowledge, if he gives the medical care which a competent doctor would
give under identical conditions, if he prepares his patient before operation
according to the rules of the art, it is difficult to sue him in damages, if
by chance an accident occurs. Perfection is a standard required by law no
more for a doctor than for other professional men, lawyers, engineers,
architects, etc. Accidents, imponderables, what is foreseeable and what is
not, must necessarily be taken into account.
|
|
FOLDER NO – 15082
DISCOVERY
RULE – NON APPLICATION
The plaintiff sought damages for
malpractice arising out of an operation performed upon her January 14, 1952,
by the defendant doctor. He allegedly left a sponge in the plaintiff’s
abdominal cavity which resulted in surgery July 24, 1961. The supreme court
said
|
|
FOLDER NO – 15083
LACK OF PROPER CARE
A patient had suffered from
fracture of the femur. The accused doctor while putting the leg in plaster
used manual traction and used excessive force for this purpose, with the help
of three men, although such traction is never done under morphia alone but
done under proper general anesthesia. This gave a tremendous shock causing
the death of the boy.
|
|
FOLDER NO – 15084
COMPENSATION - MULTIPLIER METHOD
The starting point in any estimate of the
amount of the ‘dependency’ is the annual value of the material benefits
provided for the dependants out of the earnings of the deceased at the date
of his death. But there are many factors which might have led to variations
up or down in the future. His earnings might have increased and with them the
amount provided by him for his dependants. They might have diminished with a
recession in trade or he might have had spells of unemployment. As his
children grew up and became independent the proportion of his earnings spent
on his dependants would have been likely to fall. But in considering the
effect to be given in the award of damages to possible variations in the
dependency there are two factors to be borne in mind. The first is that the
more remote in the future is the anticipated change the less confidence there
can be in the chances of its occurring and the smaller the allowance to be
made for it in the assessment. The second is that as a matter of the
arithmetic of the calculation of present value, the later the change takes
place the less will be its effect upon the total award of damages. Thus at
interest rates of 4- 1/2% the present value of an annuity for 20 years of
which the first ten years are at $ 100 per annum and the second ten years at
$ 200 per annum, is about 12 year’s purchase of the arithmetical average
annuity of $ 150 per annum, whereas if the first ten years are at $200 per
annum and the second ten years at $ 100 per annum the present value is about
14 year’s purchase of the arithmetical mean of $ 150 per annum. If therefore
the chances of variations in the ‘dependency’ are to be reflected in the
multiplicand of which the year’s purchase is the multiplier, variations in
the dependency which are not expected to take place until after ten years
should have only a relatively small effect in increasing or diminishing the
‘dependency’ used for the purpose of assessing the damages.
|
|
FOLDER NO – 15085
REASONABLE
CARE
The test of
reasonable care applies in medical malpractice cases as in other cases where
fault is alleged. The medical man must possess and use, that reasonable
degree of learning and skill ordinarily possessed by practitioners in similar
communities in similar cases. Whether or not such test has been met depends,
of course, upon the particular circumstances of each case.
|
|
FOLDER NO – 15086
NEGLIGENCE - RES IPSA LOQUITUR
Eady vs. Tenderenda, [1975] 2 S.C.R. 599
(Supreme Court of
The plaintiff
suffered from repeated and severe earaches and referred to the respondent, a
specialist in ear, nose and throat surgery. The respondent carried on
clinical tests which convinced him that the appellant suffered from
exacerbation of the left ear amounting to infection and extending into the
mastoid. The x-ray showed that the bone was mostly sclerotic so that they
could not be detected from the x-ray. Respondent advised the appellant that
she should have an operation for this mastoid condition and warned her of the
dangers such as meningitis, encephalitis, etc., which could be brought on by
a failure to treat the condition surgically. The respondent carried out the
operation on the appellant and the appellant had suffered a facial paralysis
as a result of the operation and within a very short time he called in an
Otological surgeon, who examined the appellant and determined that the ear
would have to be reopened in order to determine the cause of the facial
paralysis. This operation, carried out by Otological surgeon, with the
respondent present. At that operation, it is discovered the presence of two
small white bone chips which had been pressing against the facial nerve.
Otological surgeon removed those bone chips. The plaintiff has since that
time partially recovered from the facial paralysis.
|
|
FOLDER NO – 15087
PROFESSIONAL NEGLIGENCE
A patient had been born with a spinal problem
had her spinal cord totally severed leaving her a paraplegic. Major issue was
the relationship between the hospital and the doctors, that the hospital was
not liable nor vicariously liable but that the doctors who performed the
operation were negligent.
|
|
FOLDER NO – 15088
EXPERT EVIDENCE
To allow expert medical
evidence to determine what risks are material and, hence, should be disclosed
and, correlatively, what risks are not material is to hand over to the
medical profession the entire question of the scope of the duty of
disclosure, including the question whether there has been a breach of that
duty. Expert medical evidence is, of course, relevant to findings as to the
risks that reside in or are a result of recommended surgery or other
treatment. It will also have a bearing on their materiality but this is not a
question that is to be concluded on the basis of the expert medical evidence
alone. The issue under consideration is a different issue from that involved
where the question is whether the doctor carried out his professional
activities by applicable professional standards. What is under consideration
here is the patient’s right to know what risks are involved in undergoing or
foregoing certain surgery or other treatment.
|
|
FOLDER NO – 15089
STANDARD OF CARE
The claimant was a baby who
suffered severe brain damage after a difficult birth. The defendant, a senior
hospital registrar, was
supervising delivery in a high-risk pregnancy. After the mother had been in labor for 22 hours, the defendant used forceps to assist the delivery. The Lords found that the
doctor's standard of care did not fall below that of a reasonable doctor in
the circumstances and so the baby was awarded no compensation.
|
|
FOLDER NO – 15090
NEGLIGENCE - RES IPSA LOQUITUR
Where an infection following surgery in a
well-staffed and modern hospital remained undiagnosed until the patient
sustained crippling injury.
|
|
FOR
EXPERT OPINION ON LEGAL ISSUES
&
COPIES OF FULL JUDGMENT OF CASE LAWS
|
|
FOLDER NO – 15091
NEGLIGENCE - RES IPSA LOQUITUR
Where a spinal anesthetic
became contaminated with disinfectant as a result of the manner in which it
was stored causing paralysis to the patient.
|
|
FOLDER NO – 15092
REASONABLE CARE –STERILIZATION
A woman who had become pregnant after an
unsuccessful tubal ligation brought an action in negligence alleging failure
by the medical practitioner to warn her of the failure rate of the procedure.
The failure rate was assessed at less than 1 per cent for that particular
form of sterilization.
|
|
FOLDER NO – 15093
TEST OF REASONABILITY
The patient presented with
symptoms of tuberculosis. Instead of waiting for the results of the sputum
tests, the consultants carried out a mediastinoscopy to get a biopsy. The inherent risk of damage was to
the left laryngeal recurrent nerve, even if the operation was properly done.
In the event, only tuberculosis was confirmed. The patient suffered a
paralysis of the left vocal cord.
|
|
FOLDER NO – 15094
FAILURE TO CONVEY INFORMATION
The plaintiff and her husband decided that they
did not wish to have any more children. The plaintiff consulted the defendant
gynecologist with a view to undergoing a sterilization operation. The
defendant explained to the couple the nature of the particular operation he
intended to perform, emphasizing that it was irreversible. He stated that the
operation ‘must be regarded as a permanent procedure’ but he did not inform
the plaintiff that there was a small risk (less than 1%) of pregnancy
occurring following the operation. Consequently, both the plaintiff and her
husband believed that the result of the operation would be to render her
absolutely sterile and incapable of bearing further children. In 1979 the
plaintiff became pregnant and gave birth to a child. The plaintiff brought an
action against the defendant for damages.
|
|
FOLDER NO – 15095
GUARANTEE OF 100% SUCCESS
A reasonable man would have expected the
defendant to exercise all the proper skill and care of a surgeon in that
specialty: he would not have expected the defendant to give a guarantee of
100% success. Of all sciences medicine is one of the least exact. In my view,
a doctor cannot be objectively regarded as guaranteeing the success of any
operation or treatment unless he says as much in clear and unequivocal terms.
|
|
FOLDER NO – 15096
ISSUE OF CAUSATION
The question was whether the
cause of the injury was the fall or the health authority’s negligence in
delaying treatment, since if the fall had caused the injury the negligence of
the authority was irrelevant in regard to the plaintiff’s disability. On the
balance of probabilities, even correct diagnosis and treatment would not have
prevented the disability from occurring, it followed that the plaintiff had
failed on the issue of causation. It was therefore irrelevant to consider the
question of damages.
|
|
FOLDER NO – 15097
DEVALUATION OF STANDARDS
IN PROFESSIONAL ETHICS – NEGLIGENCE
The second plaintiff’s husband was admitted in
the
|
|
FOLDER NO – 15098
BLOOD TRANSFUSION WITHOUT CONSENT
Patient
was rushed, unconscious, by ambulance to the Hospital as she met in an
accident. Doctor examined and noticed that she had severe head and
face injuries and was bleeding profusely. The doctor concluded that she was
suffering from incipient shock by reason of blood loss, and ordered that she
be given intravenous glucose followed immediately by Ringer’s Lactate as per
the standard medical procedure and decided, if the patient does not respond
with significantly increased blood pressure, transfusions of blood are then
administered to carry essential oxygen to tissues and to remove waste
products and prevent damage to vital organs. But this time, a nurse
discovered a card in patient’s purse which identified her as a Jehovah’s
Witness and in which she requested, on the basis of her religious
convictions, that she be given no blood transfusions under any circumstances.
The card, which was not dated or witnessed, was printed in French and signed
by the patient. Doctor was promptly advised of the existence of this card and
its contents. Patient was next examined by a surgeon on duty in the hospital.
He also noticed that, to avoid irreversible shock, it was vital to maintain
her blood volume. Then patient’s condition deteriorated. Her blood pressure
dropped markedly, her respiration became increasingly distressed, and her
level of consciousness dropped. She continued to bleed profusely and could be
said to be critically ill. Based on these, Doctor decided that patient’s
condition had deteriorated to the point that transfusions were necessary to
replace her lost blood and to preserve her life and health. He personally administered
transfusions to her, in spite of the Jehovah’s Witness card. Meanwhile,
patient’s daughter arrived at the hospital and strongly objected to her
mother being given blood. She signed a document specifically prohibiting
blood transfusions and a release of liability. Doctor refused to follow her
instructions as the blood transfusions were, in his judgment, medically
necessary in this potentially life‑threatening situation, he believed it his
professional responsibility as the doctor in charge to ensure that his
patient received the transfusions. After recovery patient brought action
against Doctor, the hospital, its Executive Director and four nurses,
alleging, that the administration of blood transfusions in the circumstances
of her case constituted negligence and assault and battery and subjected her
to religious discrimination.
|
|
FOLDER NO – 15099
FREE EYE CAMP
The Lions Club arranged and conducted, as part
of its social service programme, an “Eye-Camp” intended to extend facilities
of expert Ophthalmic surgical services to the residents of the town. A
specialist doctor and his team of doctors and para-medical staff, examined
about 122 patients. One hundred and eight patients were operated upon, 88 of
them for Cataract which, with the modern advances in Ophthalmic Surgery, is
considered a relatively minor and low-risk surgery. But the whole programme,
however laudable the intentions with which it might have been launched,
proved a disastrous medical misadventure for the patients. The operated-eyes
of the patients were irreversibly damaged, owing to a post-operative
infection of the Intra-ocular Cavities of the operated eyes. The doctors
present at the Camp administered antibiotic medication, both oral and local,
for the infection. But the operated eyes had been damaged completely.
|
|
FOLDER NO – 15100
NEGLIGENCE - RES IPSA LOQUITUR
Where there was a delay of 50 minutes in
obtaining expert obstetric assistance at the birth of twins when the medical
evidence was that at the most no more than 20 minutes should elapse between
the birth of the first and the second twin.
|
|
FOR
EXPERT OPINION ON LEGAL ISSUES
&
COPIES OF FULL JUDGMENT OF CASE LAWS
|
|
FOLDER NO – 15101
NEGLIGENCE - RES IPSA LOQUITUR
Where, following an operation under general
anaesthetic, a patient in the recovery ward sustained brain damage caused by
anoxia for a period of four to five minutes.
|
|
FOLDER NO – 15102
GOVERNMENT HOSPITALS
There are, in most government
hospitals, separate “paying wards” where affluent patients seek admission, as
contrasted with the “general ward” where a poor patient is treated. Can we
say that a patient in a “paying ward” in a Government hospital is a
“consumer” within the meaning of the Act, but not an ordinary patient
admitted to a general ward?
|
|
FOLDER NO – 15103
DUTY OF CARE – AGAINST BOLAM TEST
The patient, who had for
many years been almost totally blind in her right eye, consulted an
ophthalmic surgeon, who advised her that an operation on the eye would not
only improve its appearance but would probably restore significant sight to
it. Patient agreed to undergo surgery. After the operation there was no
improvement to the right eye, and patient developed inflammation in the left
eye which led to loss of sight in that eye. The principal issue in this case
relates to the scope and content of the appellant's duty of care: did the
appellant’s failure to advise and warn the respondent of the risks inherent
in the operation constitute a breach of this duty?
|
|
FOLDER NO – 15104
CYSTECTOMY, HYSTRECTOMY AND
APPENDECTOMY
The wife of the fourth respondent received
treatment as an out patient at Nursing Home for Epigastrium and Chest pain
and Nausea. After routine tests were conducted she was admitted as an
inpatient operated for Cystectomy, Hysterectomy and Appendectomy. When
Laparotomy test was conducted upon her, it was found that she developed
Peritonitis. The patient had to be removed to the
|
|
FOLDER NO – 15105
MEDICAL
PROFESSION & CONSUMER FORUM
Challenging the jurisdiction of the District
Forum Writ was filed by the appellant contending that enquiries relating to
professional services rendered by medical practitioners do not fall within
the purview of “complaint” under Section 2(b) of the Consumer Protection Act,
1986. The expression “service” as defined by Section 2(o) of the Act excludes
professional services rendered by members of the medical profession. If the
services rendered by a doctor for consideration are to be brought within the
purview of Section 2(o) of the Act, it was contended that the same would be
unconstitutional being violative of Article 14 of the Constitution. It was
also pleaded that the consumer forum is not the proper forum to decide the
question since the allegations levelled by the fourth respondent constitute a
tortious act, the adjudication of which requires receiving of elaborate
evidence and consideration of complicated medical norms.
|
|
FOLDER NO – 15106
MEDICAL
PROFESSION & CONSUMER FORUM
Hauling up of doctors before consumer
protection forums in respect of the professional services rendered by them
for consideration would be violative of Article 19(1)(g) of the Constitution.
Writ Petition 7341/91 was filed by the Indian Medical Association seeking a
writ of prohibition directing all the District Forums in the State not to
proceed further with the enquiries relating to allegations against members of
the medical profession. It was averred that one of the objects of the Indian
Medical Association is to protect the interests of the medical science and
medical profession in the State of
|
|
FOLDER NO – 15107
UTERINE
FIBROID AFTER SURGERY & REMEDY FROM DIFFERENT COURTS
The first respondent was admitted to the
Medical Centre, the first petitioner, for an ailment which was diagnosed as
presence of “dense mass” in the Pelvic for which surgery was advised. After
obtaining her consent, operation was performed by the second petitioner
Doctor, Medical Superintendent of the Medical Centre assisted by the third
petitioner Doctor and another Doctor. The first respondent was discharged
from the Medical Centre. It appears that subsequently the first respondent
consulted one specialist Doctor in her place who advised her immediate
Hysterectomy. She issued a notice to the petitioners alleging that when x-ray
was taken, a fibroid was found in her abdominal cavity and calling on them to
pay all the expenses to be incurred by her for operation of fibroid uterus
and removal of spatula in a standard hospital. On receipt of the notice,
realizing the mistake that occurred, the Medical Centre expressed its
readiness to take her to a standard Hospital. The expenditure incurred was
met by the first petitioner and a receipt was given by the first respondent
acknowledging the amount without prejudice to her rights and contentions.
Subsequently the first respondent issued notices to the three petitioners
claiming damages under various heads.
In W.P. one of the additional
pleas raised is that no one has a right to file a civil suit claiming damages
alleging medical negligence and also simultaneously approach a consumer
redressal agency for the same relief.
|
|
FOLDER NO – 15108
(NEGLIGENCE -
RES IPSA LOQUITUR)
Where, following a routine appendisectomy under
general anaesthetic, an otherwise fit and healthy girl suffered a fit and
went into a permanent coma.
|
|
FOLDER NO – 15109
INSUFFICIENTLY QUALIFIED
Lady Doctor showed herself as an M.D. although
she was only M.D. Freiberg, a German Degree which is equivalent to an
M.B.B.S. degree in
|
|
FOLDER NO – 15110
TREATMENT
IN ANOTHER STREAM OF MEDICINE
Respondent No. 1 pursued a 4 years course in
Homoeopathic Medicine and Surgery and after being declared successful in the
Examination conducted by the
Patient, who complained of fever was examined
at his residence by Respondent No. 1, who kept him on allopathic drugs for
viral fever and, thereafter, for typhoid fever. When condition of the Patient
deteriorated, he was shifted to a Maternity and General Nursing Home of
Respondent No.2, as an indoor patient on 12th July, 1992. This was done on
the advice of Respondent No. 1. Patient received treatment there till he was
transferred to another Hospital in an unconscious state where, after about
four and a half hour of admission, he died.
|
|
FOR
EXPERT OPINION ON LEGAL ISSUES
&
COPIES OF FULL JUDGMENT OF CASE LAWS
|
|
FOLDER NO – 15111
PROFESSION
WITH MULTIFARIOUS DIFFICULTIES
It is by now well settled that there is no
absolute or total immunity to a Medical Practitioner from liability for his
negligence which may be determined by the rules of Tort, Contract or Equity.
Breach of duty on the part of a medical practitioner may arise on account of
breach of the implied contractual duty to exercise reasonable skill and care
and breach of duty of care owed by a medical practitioner to his patient
whether or not there is any contract between them. The test as to whether
there has been negligence or not, in a situation which involves the use of
some special skill or competence, is the exercise of the ordinary skill of an
ordinary competent man exercising and professing to have that special skill.
The true test for establishing negligence in diagnosis or treatment,
medicinal or surgical on the part of a doctor is whether he has been proved
to be guilty of such failure as no doctor of ordinary skill would be guilty
of, if acting with ordinary care. The profession of Medicine, perhaps is a
field where results are not expected to be or could be guaranteed since a
great deal of medical treatment, even if administered with all the due skill
and care involves some degree of risk and on occasions the medical treatment
involves making a choice between competing risks. It would be all the more so
in the case of a surgeon performing an operation which involves multifarious
difficulties presented by the particular circumstances of case, the condition
of the patient and the whole set of problems arising out of the risk to which
he is being exposed, difficulties of the surgeons choice between risks and
the paramount need of his discretion being unfettered if he thinks it right
to take one risk to avoid another.
|
|
FOLDER NO – 15112
MEDICAL
PROFESSION – SERVICE
(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).
(2) Disciplinary control of the Medical Council
of India does not provide solace to the patient.
(3) The service rendered by a medical
practitioner to the patient cannot be regarded as service rendered under a
‘contract of personal service’ but “service of contract”.
(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.
(5) Service rendered free of charge by a
medical practitioner would not be a ‘service’.
(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 are given free service - is outside the
purview of the expression ‘service’.
(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’.
(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'.
(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’.
(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’.
(11) Service rendered by a medical practitioner
or hospital/nursing home if charges for consultation, diagnosis and medical
treatment are borne by the insurance company and such service would fall
within the ambit of ‘service’.
(12) Where the employer bears the expenses of
medical treatment of an employee and his family members, 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’.
|
|
FOLDER NO – 15113
SCISSORS LEFT BY THE SURGEON
A
patient died a day after surgery and the relatives found a pair of scissors
utilized by the surgeon while collecting the last remains. The doctor was
held liable and a compensation was awarded.
|
|
FOLDER NO – 15114
WEIGHING OF RISKS AGAINST
BENEFIT
The claim relates to treatment received by the
claimant at the
|
|
FOLDER NO – 15115
DIAGNOSIS
WITH EVIDENCE
After
diagnosing the ailment as Hodgkin’s Lymphoma, the patient was administered
Endoxan injection five doses in five days. She was referred to another doctor
who was an ENT specialist, who after examination opined that no lymph glands
were seen. A sample of her bone marrow was sent to an Oncologist who opined
that the picture does not fit with Hodgkin’s disease but the patient had
megaloblastic anemia in the bone marrow. Subsequently she was discharged from
the nursing home and was advised for specialized treatment. The patient
consulted another doctor who diagnosed the same as renal failure. The
complainant alleged that the first doctor failed and neglected to refer the
matter to a Cancer Specialist but wrongly diagnosed the ailment of the
patient as Hodgkin’s Lymphoma and had unnecessarily administered injection of
Endoxan and because of the toxicity of that drug the kidney cells of the
patient got destroyed resulting in renal failure for which she had to undergo
kidney transplantation which led to her death.
|
|
FOLDER NO – 15116
EXPERT EVIDENCE NOT AVAILABLE
Sethuraman Subramaniam Iyer
vs. Triveni Nursing Home and Another (1998) CPJ 110
The complainant’s wife suffered from Sinusitis
and was advised surgery by the doctor. She had suffered a massive heart
attack while in the operation theatre. The State Commission found that
necessary precautions and effective measures were taken to save the deceased
and dismissed the complaint. The State Commission relied on the affidavits of
four doctors who opined that there was no negligence. The complainant had not
given any expert evidence to support his allegation and in these
circumstances it was held that no case was made out against the doctor.
|
|
FOLDER NO – 15117
SPEEDY SUMMARY TRIAL &
QUANTUM OF CLAIM
Treatment of stomachache and burning sensation
while passing urine - operation for removal of stone from the Urethra -
complications on account of negligence of hospital and its team of doctors -
paralyzed on the right hand side - discharged from the hospital - Despite
taking the prescribed medicines, there was no improvement - also started
passing blood along with urine – once again admitted him to the hospital -
another operation to stop passing blood with urine - after administering
anesthesia collected his signatures on some papers - discharged from the
hospital in the same paralytic condition - thereafter went to Medical
Diagnostic Centre - the appellant was told that his left kidney had been
removed - The appellant was shocked
- as a result of the negligence of
doctors at respondent No.l hospital, he has become disabled and handicapped
with his right side being paralyzed.
|
|
FOLDER NO – 15118
STERILIZATION OPERATION
The lady had offered herself for complete
sterilization and not for partial operation and, therefore, both her
fallopian tubes should have been operated upon. It was found as a matter of
fact that only the right fallopian tube was operated upon and the left
fallopian tube was left untouched. She was issued a certificate that her
operation was successful and she was assured that she would not conceive a
child in future. It was in these circumstances, that a case of medical
negligence was found and a decree for compensation in tort was held
justified.
|
|
FOLDER NO – 15119
PROFESSIONAL OPINION
A doctor will be liable for negligence in respect of diagnosis
and treatment in spite of a body of professional opinion approving his
conduct where it has not been established to the court’s satisfaction that
such opinion relied on is reasonable or responsible. If it can be
demonstrated that the professional opinion is not capable of withstanding the
logical analysis, the court would be entitled to hold that the body of
opinion is not reasonable or responsible.
|
|
FOLDER NO – 15120
LASIK & PRK
Complainant has alleged medical negligence
against the opposite parties numbering three. Complainant says he got his two
eyes operated from the opposite parties as he suffered from myopia. It was
admitted during course of arguments that there is no complaint about any
medical negligence in respect of his left eye. As regards right eye he says
that though vision improved but he developed central island, monocular
diplopia (seeing double images of one object when using one eye only) and
ghost image/after image (faint duplicate image overlapping the original image
of the object one is seeing). Other complaints were that while performing the
operation opposite parties did not use the better method which was available
i.e. Lasik technology (LASIK - Laser Assisted in Situ Keratomileusis) and
instead used laser technology (PRK- Photorefractive Keratectomy). Yet another
complaint was that the complainant was not told of the consequences that
might result from the operation.
|
|
FOR
EXPERT OPINION ON LEGAL ISSUES
&
COPIES OF FULL JUDGMENT OF CASE LAWS
|
|
FOLDER NO – 15121
INSURANCE COMPANY A PROPER PARTY IN MEDICAL NEGLIGENCE CASE
In a case of medical
negligence against the doctor, an application was filed by him to implead the
Insurance Company as correspondent. Insurance Company may not be a necessary
party but it is certainly a proper party inasmuch as claim against the Doctor
would be covered if there is any medical negligence found against him. It
would be more appropriate if Insurance Company is made a co-respondent. Subsequently
the orders against the Doctor, if any, are passed there would be no
difficulty for the complainant to get the amount of compensation to the
extent of amount of the policy from the Insurance Company.
|
|
FOLDER NO – 15122
UNQUALIFIED DOCTOR
The
respondent suffered a fracture of his hand. He went to the appellant who held
himself out to be a qualified medical practitioner. The appellant bandaged
the respondent’s hand and prescribed certain medicines. He was ultimately
taken to another doctor but by this time the damage to his hand was
permanent. It was found that the appellant was not a qualified doctor to give
treatment to the respondent.
|
|
FOLDER NO – 15123
STERILIZATION OPERATION
Child
birth in spite of a sterilization operation can occur due to negligence of
the doctor in performance of the operation, or due to certain natural causes
such as spontaneous recanalisation. The doctor can be held liable only in
cases where the failure of the operation is attributable to his negligence
and not otherwise. Several textbooks on medical negligence have recognized
the percentage of failure of the sterilization operation due to natural
causes to be varying between 0.3% to 7% depending on the techniques or method
chosen for performing the surgery out of the several prevalent and acceptable
ones in medical science. The fallopian tubes which are cut and sealed may
reunite and the woman may conceive though the surgery was performed by a
proficient doctor successfully by adopting a technique recognized by medical
science. Thus, the pregnancy can be for reasons de hors any negligence of the
surgeon. In the absence of proof of negligence, the surgeon cannot be held
liable to pay compensation.
|
|
FOLDER NO – 15124
HOSPITAL
RUN BY THE EMPLOYER
An employee of the railways had filed a
complaint on the ground that his wife had been negligently treated at a
hospital of the Central Railway as a result of which she had died.
Since, it is not in
dispute that the medical treatment in the said Hospital is given to employees
like the appellant and his family members is part of the conditions of
service of the appellant and that the Hospital is run and subsidized by the
appellant’s employer, namely, the Union of India, the appellant’s case would
fall within the parameters laid down in paragraph 55(12) of the judgment in
V.P. Shantha’s case.
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FOLDER NO – 15125
ESIC UNDER CP Act.
The question that falls for consideration is
two-fold:
1. Whether the service rendered by an ESI
hospital is gratuitous or not, and consequently whether it falls within the
ambit of ‘service’ as defined in the Consumer Protection Act, 1986?
2. Whether Section 74 read with Section 75 of
the Employee’s State Insurance Act, 1948 ousts the jurisdiction of the
consumer forum as regards the issues involved for consideration?
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FOLDER NO – 15126
FAILURE IN ANAESTHESIA
Patient aged 25 years, wife of the first
complainant and the daughter of the second complainant was admitted to the
hospital of the first opposite party, to do sutures to be made at the mouth
of the uterus to retain the pregnancy and prevent miscarriage. At 6 a.m. she
walked into the operation theatre. At 10 p.m. the complainants were informed
that the Patient vomited and wanted clothing. Second complainant was declined
permission to see the Patient. At midnight when the complainants heard loud
cries of the Patient. The second complainant was permitted and saw her lying
nude pressed to the floor by the first opposite party and three of staff of
the hospital. The Psychiatrist was brought to the hospital who found the
Patient was under sedation. Later on they were informed that she has expired.
Surgeon, who conducted the postmortem in the medical college hospital, opined
that the death was due to shock following spinal anesthesia. The patient was
4 months pregnant at the time of her death and had to under go pain,
suffering, anxiety and mental agony. Opposite parties never exercised proper
care as expected of them. Second opposite party, a skin specialist, who
administered anesthesia though he was not qualified to do so. She was also
given overdose of sedation in addition to spinal anesthesia.
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FOLDER NO – 15127
NEGLIGENCE
– HUSBAND AND CHILDREN ELIGIBLE FOR DAMAGES
Patient is the wife of the
complainant and the mother of the minor children. She was suffering from
fever and her husband took her to Doctor for treatment at her nursing home.
She was prescribed Diclozil and asked for blood report. As the fever did not
subside the patient was again taken to the nursing home and later the patient
complained of stomachache and Doctor advised removal of uterus as it may lead
to cancer without conducting any investigation. She prescribed Inferon
injection for improvement of Haemoglobin and took 3 1/2 hours for conducting
the hysterectomy. In the evening the doctor requested to get blood and the
complainant brought some persons for donating the blood, despite giving a lot
of blood there was no improvement in her condition and ultimately the patient
expired.
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FOLDER NO – 15128
INFORMED CONSENT
(i)
Whether informed consent of a patient is necessary for surgical procedure
involving removal of reproductive organs? If so, what is the nature of such
consent?
(ii)
When a patient consults a medical practitioner, whether consent given for
diagnostic surgery can be construed as consent for performing additional or
further surgical procedure - either as conservative treatment or as radical
treatment - without the specific consent for such additional or further
surgery?
Consent in the context of a doctor-patient
relationship, means the grant of permission by the patient for an act to be
carried out by the doctor, such as a diagnostic, surgical or therapeutic
procedure. Consent can be implied in some circumstances from the action of
the patient. For example, when a patient enters a dentist’s clinic and sits
in the dental chair, his consent is implied for examination, diagnosis and
consultation. Except where consent can be clearly and obviously implied,
there should be express consent. There is, however, a significant difference
in the nature of express consent of the patient, known as real consent in
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FOLDER NO – 15129
SUFFICIENT CARE
The appellant met with an accident and sustained serious
injuries resulting in fracture of the right leg. A team of doctors conducted
an emergency surgery and advised to consult a Vascular Surgeon at
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FOLDER NO – 15130
MEDICAL NEGLIGENCE
Deviation from normal practice is not
necessarily evidence of negligence. To establish liability on that basis it
must be shown (1) that there is a usual and normal practice; (2) that the defendant
has not adopted it; and (3) that the course in fact adopted is one no
professional man of ordinary skill would have taken had he been acting with
ordinary care. A medical practitioner is not liable to be held negligent
simply because things went wrong from mischance or misadventure or through an
error of judgment in choosing one reasonable course of treatment in
preference to another. He would be liable only where his conduct fell below
that of the standards of a reasonably competent practitioner in his field.
For instance, he would be liable if he leaves surgical gauze inside the
patient after an operation or operates on the wrong part of the body, and he
would be also criminally liable if he operates on someone for removing an
organ for illegitimate trade.
The professional is one who professes to have
some special skill. A professional impliedly assures the person dealing with
him (i) that he has the skill which he professes to possess, (ii) that skill
shall be exercised with reasonable care and caution.
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FOR
EXPERT OPINION ON LEGAL ISSUES
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COPIES OF FULL JUDGMENT OF CASE LAWS
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FOLDER NO – 15131
NEGLIGENCE - TUBERCULAR
PERITONITIS
Patient complained of burning
sensation in stomach, vomiting and diarrhea and was admitted to the
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FOLDER NO – 15132
INFORMED CONSENT, HEMIARTHROPLASTY & INTERNAL FIXATION
The respondent was hit by
a motorcycle leading to an injury to his leg on 31st December 1991. He was
admitted to the
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FOLDER NO – 15133
EXPERT
EVIDENCE
The
appellant got his wife admitted in the Respondent No. 1 hospital on
20.07.2002 as his wife was suffering from fever which was intermittent in
nature and was complaining of chill. According to the complainant his wife
was not responding to the medicines and thus her condition worsened day by
day. The patient was finally shifted to
When the Fora finds that expert evidence is
required, the Fora must keep in mind that an expert witness in a given case
normally discharges two functions. The first duty of the expert is to explain
the technical issues as clearly as possible so that it can be understood by a
common man. The other function is to assist the Fora in deciding whether the
acts or omissions of the medical practitioners or the hospital constitute
negligence. In doing so, the expert can throw considerable light on the
current state of knowledge in medical science at the time when the patient
was treated. 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.
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FOLDER NO – 15134
GANGRENE – NEGLIGENCE
The appellant was admitted in the
hospital of the respondent on 31.10.1994 with the complaint of loose motions.
After some laboratory tests, the respondent put him on medication and also
injected glucose saline but started vomiting and having loose motions
frequently. On 3.11.1994, the respondent is said to have administered glucose
saline through the left foot of the appellant. In the evening, the parents of
the appellant noticed swelling in the toe of his left foot, which was turning
black. This was brought to the notice of the respondent, who stopped the
glucose. On the next day, the parents of the appellant pointed out to the
respondent that blackish discoloration had spread. Thereupon, the appellant
was sent to another Doctor, who was known to the respondent. That Doctor
applied a small cut, removed black colored fluid from the left toe of the
appellant and gave some medicines. In the morning of 5.11.1994, it was
noticed that the left leg of the appellant had become totally black up to the
knee. Specialist Doctor, who examined the appellant, suspected that he had
developed gangrene in his left leg and the left leg was amputated below the
knee.
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FOLDER NO – 15135
RULE OF
LIMITATION
After examining the report of the pathologist,
which revealed that the respondent had stones in her gall bladder, the
appellant performed ‘Open Cholecystectomy’ on 26.11.1993. The respondent was
discharged from the appellant’s hospital on 30.11.1993. For the next about 9
years, the respondent neither contacted the appellant nor consulted any other
doctor despite the fact that after the surgery she was having pain in the
abdomen off and on. In September, 2002, the respondent was admitted in the
hospital and C.T. scan of her abdomen was done on 23.9.2002, which revealed a
well-defined rounded mass showing predominantly peripheral enhancement is
seen in relation to the left lobe of liver as described above. This is more
likely to be an exophytic neoplasm from the undersurface of left lobe of
liver than a pancreatic lesion. Further evaluation of FNAC is suggested. The respondent got herself admitted in another
Hospital and was operated on 25.10.2002. The relevant extracts of the report
of surgeon are: E/o circumferential mass in lesser sac involving under
surface of left lobe (Segment 3) of liver and along lesser curve of stomach
extending posteriorly to involve the anterior surface of Pancreatic head.
Mass freed of the pancreas by division of adhesions and from the lesser curve
of stomach by successive ligation and division of vessels and mass was freed
of lesser curve with No.55 linear butter to divide lesser curve of stomach.
Round ligament was divided. Wedge of liver, Segment 3, was excised with CUSA
Haemostasis checked. Drain kept in Morrisson’s pouch Abdomen was closed in
layers. Post-operative: She had a smooth and uneventful recovery. Diagnosis:
Gauze pieces within a mass in epigastric region adherent to liver - Foreign
body reaction lymph nodes - Reactive Sinus Histiocytosis.
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FOLDER NO – 15136
DISCOVERY RULE
Morgan vs. Grace Hospital Inc. (
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.
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FOLDER NO – 15137
DISCOVERY RULE
The plaintiff underwent a surgical operation in
1946. A sponge was left in the wound when the incision was closed. The same
was discovered in the patient’s body in 1961. During the intervening period
the patient sustained considerable suffering, during which she consulted
various physicians. After reviewing numerous authorities at great length, the
Court cast aside the earlier doctrine, adopted the Discovery Rule and
observed: In reality, the ‘general rule’ has little to recommend it. It is
neither the position of a majority of the jurisdictions nor is it firmly
based on considerations of reason or justice. We will, therefore, adhere to
the following rule: where a foreign object is negligently left in a patient’s
body by a surgeon and the patient is in ignorance of the fact, and
consequently of his right of action for malpractice, the cause of action does
not accrue until the patient learns of, or in the exercise of reasonable care
and diligence should have learned of the presence of such foreign object in
his body.
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FOLDER NO – 15138
DISCOVERY RULE
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.
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.
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