INDIAN CASES

In the case of Consumer Unity and Trust Society v. State Of Raj. and Ors.Protection [ Gurbax Singh’s Law of Consumer p.389 : 1991 (1) CPR 241 (NC)], complaint was regarding a tuberctomy operation at a Government Hospital. The patient developed serious complication after the surgical operation and she became physically invalid person and suffered continuous physical pain as well as great mental agony. It was alleged in the complaint that on account of negligence on the part of the surgeon, and due to lack of post-operative care and attention,serious complication had resulted and claim for compensation for the loss and injury suffered by the patient was lodged.

The National Commission rejected the claim for compensation and held that persons who availed themselves of the facility of medical treatment in a Government Hospital are not "consumers " as defined in Consumer Protection Act, and the said facility cannot be regarded as service "hired " for "consideration.:.

It was contended on behalf of the complainant that direct and indirect taxes paid to the State by a citizen constituted "consideration" for the services and facility provided to a citizen by the State. The National Commission, making a distinction between "tax" and "fee" held that a tax is levied as part of common burden while fee is for payment of specific benefit or privilege. Unlike "fee" , "tax" in its true nature is a levy made by the state for the general purposes of the Government and it cannot be regarded as payment for any particular or specific service.

On the question whether contributors to the CGHS Scheme and patients in a "paying ward " in a Government Hospital are "consumers" within the meaning of the Act, it observed that contribution to CGHS should be taken to be in lieu of free treatment in the diverse dispensaries, as well as the free provisions of medicines from these dispensaries. In regard to "paying wards " , it further observed that these payments are specifically related to special rooms / beds for which the separate charge is made ; the (free) medical facilities are common to all patients, inclusive of those in the paying wards, without discrimination.

In the case of Cosmopolitan Hospital Pvt. Ltd. and Anr. v. Vasantha P.Nair and Cosmopolitan Hopsital Pvt. Ltd. v. V.P.Santha and Ors. , decided on 21st April, 1992 , [ I, 1992) CPJ 302 (NC)], the National Commission has decided some important points regarding maintainability of complaints regarding medical services under the Consumer Protection Act, 1986 and held that :

1. When a patient goes to a hospital which provides treatment to patients for payment and avails himself of the facility of treatment on payment of consideration, he is dealing only with an institution carrying on the activity of providing medical service for payment and no element of "personal service " does enter into the picture in such a case. Thus, the activity of providing medical assistance for payment by hospitals and members of medical profession falls within the scope of "service " as defined in section 2 (1) (o) of the Act and in the event of any deficiency in the performance of such service the aggrieved party file a complaint under the Act ( Consumer Protection Act).
2. In the case of death of a patient legal heirs of the deceased have ‘locus standi’ to file complaint under the Act and they are held to be "consumers."
3. There is no provision in the Indian Medical Council Act, 1956, for the protection of the interests of the persons who may have suffered on account of negligence or deficiency in the service rendered by the medical profession. The field left open by the said Act is covered by the Law of Tort in general and by the Consumer Protection Act in particular.

NOTE : It is learnt that a writ petition filed by the IM.A. has been admitted by the Supreme Court against the ruling of the National Commission in the above case but no stay has been granted against the continuance of proceedings pending before various Forums / Commissions under the Consumer Protection Act, in respect of complaints filed against members of the medical profession.

In the case of Dr. T.T. Thomas v. Elisa, AIR 1987 Ker. 52, the question was regarding the liability of a doctor not performing an emergency operation for want of patient’s consent and consequent death of the patient. In that case, on complaint of severe abdominal pain by the patient, the general practitioner, after diagnosis, found it to be a case of appendicitis and the patient was admitted to the hospital. The operation was not performed on that very day and on the subsequent day the patient died owing to bursting of the appendix. The plaintiff’s case was that had the operation been performed immediately,on the very day of admission, the patient’s life would, most probably have been saved.

The defendant-surgeon took the plea of refusal by patient to give his consent to the operation which was the reason why operation could not be performed on the very first day. But this argument was not accepted either by the trial court or the High Court, as there was no mention in the case sheet of the patient that consent was sought and the same was refused by the patient.

The Kerala High Court held that the burden of proof that consent was sought and it was refused was upon the one who takes such a plea particularly when the patient himself has died and held the doctor negligent for failure to perform an emergency operation.

The doctor has a discretion in choosing treatment he proposes to give and such discretion is amplified in cases of emergencies. [ Joshi v. Godbole, 1968 AC J 183, p. 187 (SC)].

In the case of R. Lalitha V. M. Jeeva, [ 1992 (2) CPR 409 (Tamil Nadu State Commission )], the complaint was regarding negligence of a private doctor’s hospital which the complainant attended for prenatal treatment, etc. Her uterus got ruptured on account of delayed labour and the male child, who was born,died. The State Commission observed : "Here is a case where the opposite party who is merely a nurse and mid-wife, has taken upon herself, the management of a situation pregnant with dire consequences as this was a case of second caesarean operation and her management has ultimately led to the rupture of the uterus, removal of it and to the death of her male child .. The opposite party has acted rashly, recklessly and with culpable negligence," It held the opposite party guilty of gross negligence and awarded compensation of Rs. 2,50,000 as under :

1. Rupees one lakh for rupture and removal of the uterus which is a permanent injury of a grave character.
2. Rupees one lakh for the pain and agony suffered.
3. Rupees fifty thousand for the death of a male child.

   In another case which was decided by the National Commission on 16.11.1992, [ Dr. Sr. Louie and Ors. v.Smt.Kannolil Pathumma and Anr. , 1993 (I) CPR 422 ], it was held that :

   1. As fee was charged for room rent, treatment etc., the service rendered falls within the scope of the Act.
   2. Heirs /legal representatives of deceased consumer are entitled to file complaint.
   3. Medical negligence existed on following grounds :
      1. Patient was known to have complications during her first delivery in same hospital and after admission, to induce labour,she was started on syntocinon drip. Artificial rupture of membranes was done. At this point the doctor left the patient to attend patients in the OPD. This was against standard medical recommendations ( of reasonable care & skill).
      2. The condition of patient became bad. Doctor was called who applied vacuum extractor. The baby extracted was asphyxiated and mother started bleeding severely. Both died subsequently. Was the doctor employed by the hospital qualified to do this procedure ? The name board exhibited by the hospital mentioned M.D. (Gyn.) against her name creating an impression and misleading the patients that the doctor possessed P.G. degree in Gynecology. The degree M.D., Gyn. was obtained from Freiburg,Germany which, as per the rules and directions from M.C.I., should have been mentioned. This degree is equal to M.B.B.S. , in India. Although the doctor had undergone practical training courses in Gynecology,she had not acquired any qualification in the form of degree or diploma in that discipline, hence she was not entitled to claim that she is M.D. (Gyn.) in India.Hence, she was not qualified to undertake this procedure and the resultant vacuum slip had led to complications. Also held liable for misrepresentation of facts. Complainant was awarded Rs, 77,000 as compensation, to be paid by the society which is running the hospital.

         In the case of Bansidhar Panigrahi Chief Medical Officer,Ganjam and Ors. , [ 1993 (I) CPR 94 (Orissa State Commission)],a tuberctomy operation was performed on the patient and she left the Hospital at her accord inspite of knowing that there are possibilities of complications after the operation. Later on she had developed tetanus and she died.

         The State Commission held that disease contributed to her death in not keeping the operation wound clean for which she got infection from her home, as others who were operated on the same day were not affected by the disease and there was no negligence on the part of operation surgeon, para-medical persons and the treatment at the Hospital.

         In the case of Sir Gangaram Hospital v. D.P. Bhandari and Ors. [ II (1992) CPJ 397 (NC)], it was held by the National Commission that there was no negligence or deficiency on the part of the Hospital in not transferring the patient to I.C.U. on account of non-availability of vacant bed in the I.C.U. and it was also not negligence or deficiency on the part of the Hospital merely on account of their omission to inform the relative of the patient to shift the patient to some other Hospital if they so chose in view of non-availability of vacant bed in the I.C.U.

         In the case of Renu Jain and Ors. v. Escorts Heart Institute and Research Centre [ III (1992) CPJ 391 (NC)], a complaint was filed wherein it had been alleged that the patient who had undergone coronary by-pass surgery was discharged after a major surgery negligently, wrongly and prematurely and that a post operation infection had occurred which was not properly treated and as a result the patient suffered from Thromboambolism phenomenon which resulted in patient going into coma.

         The opposite party, i.e., the Hospital disclaimed altogether the charge of deficiency in service and negligence in treatment which would have possibly either directly or indirectly caused the death of the patient. It was contended that infection in the wound was superficial and mild. There was no evidence of severe infection. There was no fever, no discharge.Consequently the antibiotics prescribed on 14th March at the time of discharge after the patient had undergone Coronary bye-pass surgery were withdrawn on 21st March. The Blood Reports of the patient on 4th April when he went in to coma were also normal. After examination by different Neurologists of the Hospital it was established that the cause of the patient going into coma was Brain-stem Hemorrhage which eventually resulted into death of the patient on 15.4.91.

         The National Commission accepted the contention of the Hospital and held that the patient’s death was caused by Brain-stem Hemorrhage and there was no negligence on the part of the Hospital in treating the patient.

         On the point of conducting of autopsy by the Hospital, the National Commission observed that it is essential to conduct autopsy in case where death has been caused due to criminality,as an aid to preventive medicine or when death is caused by an accident etc. or when the precise cause of death is to be determined, etc. As it was not a medico-legal case and the cause of death, Brain-Stem Hemorrhage was not in doubt, the Hospital Authorities should not have advised the relatives of the patient for having autopsy done.

         In the case of Vinitha Ashok v Lakshmi Hospital and Ors. [ II (1992) CPJ 372 (NC) the National Commission has observed :

"... the law does not require that a doctor in the discharge of his duty of a case should use the highest degree of skill. Since that may never be acquired, it is enough for the doctor to show that he acted in accordance with the general and approved practice. A mistake diagnosis is not necessarily a negligent diagnosis. A practitioner can be held liable in this respect only if his diagnosis is so palpably wrong as to prove negligence,that is to say if his mistake is of such a nature as to imply an absence of reasonable skill and care on his part, regard being had to be ordinary level of skill in the profession."

A unit of blood was purchased by the complainant for his wife from opposite party which was found to be contaminated and had virus of Hepatitis B. The State Commission held that the blood bank has failed to observe the fundamental requirement of ensuring that the blood supplied to the complainant was free from any contamination, the complainant’s wife suffered from viral Hepatitis B which was later communicated by her to her husband, the complainant. Both the complainant and his wife suffered for a few months due to defective and contaminated blood supplied by the Blood Bank ( the opposite party). The State Commission held the Blood Bank guilty of supply of contaminated blood and awarded a sum of Rs. 20,000 as damages to the complainant for ill health and discomfort caused to him and his wife. The Commission held that the Doctor who recommended the particular blood bank was not held responsible, since there is no procedure for testing the blood at the time of transfusing the blood and further that the blood bank is under obligation to ensure that it did not stock contaminated blood. [ Harish Kumar v. Sunil Blood Bank Ltd., 1 (1991) CPJ 645 (Delhi SC)].

In the case of Mappooyan V Dr. Premavathy Elango, [ (1991)], II CPR 460 (Tamil Nadu State Commission)], wife of the complainant got treatment from a doctor who was a family friend. The doctor administered some test injection following which the patient fell unconscious and subsequently died.It was held by the State Commission, since the doctor gave the treatment free of charge, the patient was not a consumer and the complaint is outside the purview of the Consumer Protection Act.

In the case of M Arunachala Vadivel and Ors., v.Dr. N.Gopalkrishnan, [ II (1992) CPJ 764 ( Tamil Nadu State Commission ], the complaint was regarding alleged negligence of the doctor in thyroidectomy operation on account of which the patient had died.

The State Commission, after going through and examining the case history and treatment record of the patient, came to the conclusion, " A perusal of Exhibit B-6 and the treatment given to the patient after she failed to revive, show that nothing has been let undone to her. Despite this emergent treatment, the patient has collapsed. We are not able to find any negligence in the management of this patient after the operation. "

The State Commission also held that when oral consent of the patient and the relative is taken, it is enough.

The State Commission while dealing with this case, have discussed and analysed a good number of Indian and Foreign decided cases on Medical Negligence which are being reproduced here for the benefit of the readers :

Medical Negligence is defined as want of reasonable degree of care and skill or wilful negligence on the part of the medical practitioners in the treatment of a patient with whom a relationship of professional attendant is established so as to lead to his bodily injury or permanent disability or loss of life. As pointed out by this Commission in a very recent decision rendered in R. Gopinath v.Eskaycee Medical Foundation and Another (O.P. 199/91 dated 10.4.92), the law on the subject is very considerate to medical profession. In Hatcher v Black (Lancet 154-2-880), Lord Danniel opined that the jury must not find a Doctor negligent simply because one of the risks inherent in an operation actually took place or because as a matter of opinion he made an error of judgement. They should find him guilty only when he had fallen short of reasonable medical care.Similarly Lord Justice Denning observed that we should be doing a disservice to the community at large, if we were to impose liability on hospitals and doctors for every thing that happens to go wrong .... We must insist on due care for the patient at each point, but we must not condemn as negligence that which is only a misadventure, Roe v. Ministry of Health,[1954-2-All E.R. 131], Mr. Justice Barrie in Moore V Lewisham Group HMC (1959) obsrved that "when there are two genuinely responsible schools of thought about the management of a clinical situation, the Courts could do no great disservice to the community or the advancement of medical science than to place the hall-mark of the legality upon one form of treatment." As observed by Lord Nathan in his Medical Negligence, a mistake diagnosis is not necessarily a negligent diagnosis. In Mitchel v. Dicksen (1954-AP PD -519), Innes, ACJ observed, "No human being is infallible and in the present state of science even the most eminent specialist may be at fault in detecting the true nature of the deceased condition. A practitioner can only be liable in this respect if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the practitioner." A reference to some of the decided authorities would explain the legal position better. In Wood v Thurston (1953-1-C.L.C. 687) a drunken man was brought to the casuality ward of a hospital with a history of having been run over by a motor lorry, with 18 broken ribs, a fractured collar-bone and badly congested lung. The surgeon did not examine him as closely as the case required and had even failed to use his stethoscope which could have enabled him to discover the patient’s true condition. Added to that, he permitted the patient to return home who after a few hours died. The surgeon was found negligent in failing to make a proper diagnosis. Another typical instance of negligence is diagnosis is Edler v Greenwich & Deptford Hospital, (1953 the Times March 7) where a child complained of severe abdominal pain and vomiting. On being asked by the doctor where the pain was, she indicated generally her stomach and winced the right side of the abdomen was palpated. The doctor failed to diagnose appendicitis, the existence of which the circumstances clearly indicated. He was rightly held negligent in failing to exercise proper care and diagnosis. Now-a-days where injection therapy has become so common, there may arise many situations in which a doctor may find himself guilty of negligence. He may , for instance, inject a wrong solution by mistake or oversight. He may inject the fluid into artery instead of a vein or use a solution intended to be injected intramuscular as one intravenous, or break the needle in the body of the patient. Any one of these mistakes may result in disaster to the patient, and there can be no two opinions as to the civil liability of the practitioner for the consequences.[Kameswararao’s Law of Negligence, 1991 - Edition page 709].The case of Antonny V Grey (1936 1 AII E.R. 540) may be taken as an illustration of the type of cases where an injection was given at a wrong place, that is, into an artery instead of into a vein, or into vein instead of into the muscle. There a patient succeeded in an action for negligence against a medical man who was treating him for malaria by giving quinine injections in the buttocks. On one occasion in giving the injection he travelled beyond the safe area for injection and injured the patient’s sciatica nerve, with the result that the patient was prematurely lamed. Again, in a case reported in the British Medical Journal [(dt.27.3.1954, page 767) (Peters v Fulhar)]where the complaint was that thiopentone had been injected into an artery, the hospital authorities admitted the negligence.In Collins v Hertfordshire County Council (1947-1-All E.R. 633) a patient while undergoing an operation was killed by an injection of cocaine which was given by the operating surgeon in the mistake belief that it was procaine. The operation surgeon had ordered procaine on the telephone, but the resident house surgeon had misheard "procaine" as "cocaine" and had told the pharmacist to dispense a mixture which was in fact lethal. The mixture prepared by the pharmacist according to instructions was administered by the operating surgeon without checking. It was held that the operating surgeon was liable in negligence. The responsibility of the surgeon for things done or left undone in the operation theater has been the subject-matter of consideration in what are known as "swab cases " and "Forceps cases." Leaving behind the "Swab" and "Forceps" in the body of the patient at the end of an abdominal operation is a real and grave danger and the liability of the surgeon for negligence, has never been in doubt. In Urry v Bierer (1955-The Times, 16th March), a 10 inch square pack was left in the patient’s abdomen after a cesarean operation. The operating surgeon did not take any special precautions to guard against the possibility of a pack being overlooked, but relied entirely upon the sister’s count. Lord Pierson held that the surgeon was negligent. In a Canadian Case Gloning v Miller (1954-IDLR,372), the surgeon was found negligent when a pair of forceps was left behind in the patient’s abdomen after a caesarean operation. It is thus well settled that negligence can be attributed to a surgeon only if his mistakes are of such a nature as to imply absence of reasonable care and skill on his part. It is also equally well settled that the burden of establishing negligence is on the complainant. He has not only to establish negligence on the part of the medical practitioner, but also the proximate causal connection between the alleged negligence and injury. (vide 1984-SC-1570).

In the case of B.S. Hegde v Dr. Sudhansu Bhattacharya [II (1992) CPJ 449], the State Commission of Maharashtra held the doctor guilty of gross negligence for failure to render necessary post-operative care which was undertaken by him for consideration (fee). This fee of Rs. 40,000 was paid by cheque a few days after the open-heart by-pass operation performed on the complainant at the Bombay Hospital, for rendering post-operative care and treatment for a period of three months. The fee was excessive, unreasonable and unjustifiable though conceding that the amount to be charged as fee for medical services is the choice of the medical practitioner. The State Commission further observed that the complainant badly needed post-operative care as pus was formed in his chest region for want of post-operative care, which could have caused death. The doctor examined the patient reluctantly on one of the post-operative follow-ups, and on another occassion did not grant interview to the patient. Hence it held that the doctor had charged disproportionately and there was imperfection, short-coming and inadequacy in the nature and performance of post-operative care and awarded a sum of Rs. 2 lacs by way of compensation to the patient.

On appeal against this order of the State Commission, the National Commission, in Sudhanshu Bhattacharya v.s. B.S.Hegde decided on 7.10.993, 1993 (3) CPR 414, held that :

There is no evidence of any deficiency in service on the part of the doctor or in rendering adequate care and treatment,because there was no cardiac or any other serious complication during the post-operative period. Pus formation in the stitches is a normal occurrence in the post-operation period of coronary by-pass surgery. It also noted the statement of other doctors who had subsequently attended on the patient that the discharge from the sternum was serious, there was no tenderness, patient was afebrile and vital parameters were within normal limits, and the treatment given was of a superficial nature, and could not in ordinary course cause death.

The National Commission also agreed in general with the observation of the State Commission that fee paid for an operation also includes post-operative care. But in the case of the operation being performed in an institution (hospital), it is the duty of the institution to render post-operative care and treatment. The private doctor, who is performing the operation for a fee in the hospital, cannot be expected to undertake and provide post-operative treatment and care to the hospital’s patient. Quite often foreign doctors undertook operations in hospitals or nursing homes in India and it cannot be maintained that the post-operative care and treatment will continue to be provided by the foreign doctors who may no longer be in the country.

Regarding the charging of Rs. 40,000 for post-operative care and treatment it found it to be clearly unreasonable. But,however, important it may be, the demand and acceptance of an exorbitant fee can not be deemed to be deficiency in service and hence, it is not for the consumer forums to adjudicate on the question whether the consideration charged was reasonable.

It also conceded that a doctor has the absolute right to decide which patient he would examine first and even out of turn depending upon the condition of the patient. He also has the right to examine patients in their turn and it cannot be maintained that a patient must be examined by the doctor at the appointed time irrespective of the time he may have to spend in examining the previous patient.

In the light of above discussion the order passed by the State Commission was set aside and complaint was dismissed.

In the case of Smt. Chanchal Ostwal v SDM Hospital and Dr. Nimish A. Shah, decided on 28.11.92 by the Rajasthan State Consumer Disputes Redressal Commission, the complainant had undergone heart surgery in the hospital and it was alleged that a surgical gauze was left in her body at the time of operation,on account of which she suffered great pain and had to undergo second operation at Bangalore. The complainant claimed compensation against the negligence of the Hospital and the Surgeon.

It was contended by the opposite parties that the heart operation was successful but the post-operative X-ray examinations carried out showed a collection of fluid on the left side of the chest and the complainant was advised for operation to remove the fluid which the complainant refused although it was to be done free of charge. However she went to Bangalore and got herself operated upon where the surgical gauze was allegedly got removed.

The State Commission while dismissing the complaint held that, "there is no evidence on record to prove that during the operation by opposite party No. 2 a surgical gauze was left in the chest which was removed at Bangalore ... There is not the slightest evidence of any deficiency in service and consequent negligence of the opposite party NO. 2, when he performed operation of the complainant. "