(Published in Legal News & Views, Indian Social Institute, New Delhi, Vol 23: No. 8: August 2009)
Safety of patients from incompetent and negligent doctors and safety of doctors from undue harassment from unscrupulous litigants has been a perennial problem faced by the Medical Jurisprudence. But when a two judges bench of the apex court in the case of Martin F. D'Souza v. Mohd. Ishfaq[1] directed in February 2009 that whenever a complaint is received against a doctor or hospital by the Consumer Forum or by the Criminal Court then before issuing notice to the doctor or hospital it should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital, many perceived that balance has tilted in favour of doctors as a team of doctors would always give opinion in favour of its fellows only.
However, when a full bench of the apex court in May 2009 in the case of Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and Ors.[2] awarded unprecedented compensation of Rs. One crore to a techie against the hospital which while operating on Neurofibroma, an innocent tumour, gifted him acute paraplegia with a complete loss of control over his lower limbs, message was received that there are silver linings too in the dark clouds.
A failure to exercise reasonable skill and care in diagnosis and treatment as per the available medical practice and procedure comes under medical negligence. A mere misjudgment or error in medical treatment by itself would not be decisive of negligence towards the patient. As long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence[3].
In this case, the operation was performed on 23rd October, 1990 and since then the victim caught paraplegia requiring him continuous physiotherapy and nursing care on account of infection of the urinary tract and the development of bed-sores etc. He filed a complaint before the National Consumer Redressal Commission on 5th April, 1993 alleging utter and complete negligence on the part of the doctors and the hospital before, during and after the operation and claimed Rs. 4.61 cores as compensation under various heads. The Commission on 16th February, 1999 directed the hospital to pay only a total compensation of Rs. 15.5 lakhs to the complainant. Both the parties filed appeals in the apex court. The techie pleaded that the compensation given by the Commission was inadequate and not commensurate with the damage and agony that he and his family had undergone and which had cut short the promising and lucrative career which laid ahead for him. The apex court, after referring to several international authorities in medicine, observed that the complete investigations prior to the actual operation had not been carried out. It also found the allegation of the complainant true that the consent that had been taken was only for the purpose of an excision biopsy which was an exploratory procedure, but the doctor had carried out a complete excision removing the tumour mass and the fourth rib thereby destroying the inter-costal blood vessels leading to paraplegia and had a Neuro-surgeon been associated with the operation, this problem could well had been avoided. Referring to its an earlier decision, the apex court further held that the consent given by the complainant for the excision biopsy cannot, save in exceptional cases, by inference, be taken as an implied consent for a surgery.
The Supreme Court, while awarding an exemplary compensation of Rs. 1 crore has set forth following rules which would act as lighthouse to the consumer forums in the coming times:
· that a mere misjudgment or error in medical treatment by itself would not be decisive of negligence towards the patient and the knowledge of medical practice and procedure available at the time of the operation and not at the date of trial, is relevant. A doctor rendering treatment to a patient is expected to have reasonable competence in his field. (Bolam's principle).
· that a balance has to be stricken between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the Court must not be chary of awarding adequate compensation.
· the amount of compensation was computed keeping in mind that victim’s brilliant career has been cut short and there was, as of then, no possibility of improvement in his condition, the compensation would ensure a steady and reasonable income to him for a time when he would be unable to earn for himself.
· A person’s absolute right over his body has been re-affirmed by holding that unless the unauthorized additional or further procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable (as contrasted from being merely inconvenient) to delay the further procedure until the patient regains consciousness and takes a decision, a doctor cannot perform such procedure without his consent.
· One of the foremost defences of the doctors in complaints against them has been locked by holding that the Consumer Forum is an alternative forum established under the Act to discharge the functions of a civil court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the civil court.
The courts, though at a turtle speed, seem to be nourishing the infant law of tort in India. Though, it seems to be a unprecedented amount of compensation, but only Rs. 25 lac were awarded towards loss of future earnings of a person whose yearly salary as of now is Rs. 28 lac. It is a trifle compared to the 5 million pounds recently given to British TV actress Leslie Ash in a similar case by the Chelsea and Westminster Hospital[4]. However, for future claims, the consumer forums, like national commission which granted only Rs. 15.5 lac in this case, now would be less hesitant in determining size of compensation as per the size of negligence and harm to the patient in light of this ruling which has come as a “wake-up call” for the health business. Last but not the least, money for his daily medical and care expenses needed by a twenty years young boy was granted by the court to a forty years old man - justice delayed but not denied!
[1] (2009) 3 SCC 1
[2] 2009 (7) SCALE 407
[3] Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others, ( 1996 ) 2 SCC 634
and http://en.wikipedia.org/wiki/Leslie_Ash (visited on 29-06-2009)
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By: Praveen Kumar Jain
Advocate, Supreme Court of India
Mobile: +91 98712 78525
Email: pkj@lawyer.com
