medical negligence

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MEDICAL NEGLIGENCE – The State Commission, therefore, directed the Appellants to jointly and severally pay the Respondent (i) Rs.77,023/- towards expenditure upto 30.05.2001; (ii) Rs.70,000/- as damages; and (iii) Rs.10,000/- as litigation costs within a period of 45 days from the date of the communication of the order.- It is an admitted fact that the Respondent was admitted for gallbladder surgery in Appellant/Institute and as a part of the anesthesia procedure a cylindrical pipe was inserted inside his throat and since it could not be placed in the desired position despite several attempts, the operation had to be abandoned. It was later confirmed that the intubation was unsuccessful because of a jutting cartilage inside the throat which was a pre-existing structural problem in the Respondent’s throat. = it was for the Appellants as medical professionals to have got all the tests done and once there was a problem with the intubation, they should not have made repeated attempts to thrust the pipe, which resulted in serious injuries leading to other complications. – the Respondent had developed a life threatening condition because of the pharyngeal tear close to larynx and multiple air filled cavity in Appellant No.1/Institute – the due and reasonable care was not taken by the Appellants in the treatment of the Respondent while intubating the cylindrical pipe in connection with the anesthesia. While the problem was apparently caused because of a structural defect in the Respondent’s throat, severe damage could have been averted or minimized if the Appellants had been more sensitive and careful and not insisted in pushing the tube several times despite knowing that there were problems. There is no other explanation for the extensive and severe injuries caused inside the Respondent’s throat. We are also unable to accept the contention of the Appellants that the onus was on the Respondent to have disclosed the relevant facts regarding structural defects since there is no evidence that he was aware of this problem. If indeed he had been aware, there was no reason for him to have withheld this fact.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 114 OF 2009 (Against the order dated 16.02.2009 in SC Case No. 100/O/2001 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata)   1. ILS Hospital Previously known as Institute of Laparoscopic Surgery Jeewansatya, DD-6 Salt Lake City, Sector-1 Kolkata-700064 2. Dr. Om Tantia Director … Continue reading

“(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case, WLR at p.586 holds good in its applicability in India.”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   FIRST APPEAL  NO.115 OF 2005 (From the order dated 02.03.2005 in Complaint No.70/2000 of the State Commission, M.P.)   Prem Bala                                                                                                                                                                                …Appellant Versus Dr.(Mrs.) Satinder Saluja & Ors.                                                                                                                                            …Respondents   BEFORE :             HON’BLE  MR. JUSTICE  ASHOK  BHAN,  PRESIDENT           HON’BLE  MRS. VINEETA RAI,  MEMBER   For the Appellant                            :         Mr. D.S. Chauhan, Advocate   For the Respondents                       :         NEMO.   Pronounced … Continue reading

the respondent has to be held guilty of medical negligence/deficiency in service at least on four counts. The respondent did not pay any attention to the patient’s persistent complaints of pain (as he himself admitted in his referral note for ERCP) till she presented with visible signs of jaundice and thus unduly delayed the diagnostic tests that were taken only on 02.10.2000. Secondly, having conducted an “exploratory” laparotomy on 04.10.2000, he failed to even attempt locating the cause of the bile leakage suffered by the patient though all standard literature (including that cited by the respondent) pointed to cystic duct stump leak as one of the most frequent causes of such leakage – such a situation was particularly likely in this case because the cholecystectomy was proceeded with by the respondent despite his inability to clearly separate the cystic duct and the cystic artery before their dissection and ligature. Further, after conducting the laparotomy, he delayed referring the patient for ERCP for no rhyme or reason though all standard literature (and hence the corpus of knowledge and practice based thereon expected of an ordinary medical practitioner of the relevant specialty) mandated such an investigation at the earliest because that is the most widely recommended way of both diagnosing and, in some situations also treating, bile anatomy injury/obstruction evidenced by either stricture/obstruction in the biliary tree or fistular leakage of bile flow. The respondent himself knew of this, according to his repeated admissions. It is really strange that this failure could be pleaded as an error of judgment. A physician can commit an error of judgment in a case of more than one options of (or, approaches to) diagnosis and/or treatment of a patient’s condition and he honestly believing one of them to be more appropriate than the other/s for that patient, though in retrospect that may turn out to be not so appropriate or advantageous to the patient. Here, in this case, the respondnet knew full well that the patient must undergo ERCP (or, an equivalent diagnostic or diagnostic-cum-therapeutic procedure), which he was not professionally competent to conduct. Why he delayed this reference to a qualified gastro-enterologist/endoscopist, or, in this case to the PGI, when he had not even been able to identify the patient’s biliary anatomy injury, leave alone repair it, may be a ‘judgment’ of sorts of this particualr surgeon but certainly not an error of judgment that an average informed and careful surgeon would make. Finally, there is incontrovertible evidence in the form of the signed consent documents that the respondent did not discharge the duty of disclosure in case of either surgery (cholecystectomy or laparotomy) as required of him under the law governing consent. We cannot also overlook the fact that this respondent’s recording of important treatment records could be interpreted to suggest an attempt at “improving” his case but perhaps that was not deliberate. It is unfortunate that the medical board did not go into these questions with the seriousness expected of an independent body of experts. However, there is no evidence at all that the acts of the respondent /OP were the proximate cause of Reeta’s eventual death and the respondent/OP cannot be held to account for that. 20. That brings us to the question of quantum of compensation. The complainant asked for Rs. 8.25 lakh (consisting of Rs. 5 lakh towards compensation for loss/damage due to medical negligence, Rs. 1.25 lakh for reimbursement of medical expenses and Rs. 2 lakh towards mental agony), with interest thereon @ 24% from the date of dispute till payment and costs of Rs. 5,000/-. In the case of “Lata Wadhwa & Others v State of Bihar & Others [(2001) 8 SCC 197], the Apex Court had taken the value of earnings of a simple housewife at Rs. 36,000/- p.m. while going into the question of compensation on account of deaths of several people that occurred in an accident in 1989. Smt. Reeta Dogra was also a simple housewife who died in 2000. Considering only the inflation since 1989, it would be reasonable to accept the sum of Rs. 10,000/- p.m. as the equivalent earning in December 2000. Applying the deduction of 1/3rd towards personal maintenance expenses, the contribution would work out to Rs. 80,000/- approx. per annum. Reeta was 46 at the time of her death and hence a multiplier of even 10 would lead to a compensation amount of Rs.8 lakh, which would have been payable in 2001 on which interest @ 9% per annum since 2001 would not be unreasonable. However, since we cannot attribute Reeta’s death solely to the acts of negligence on the part of the respondent/OP, the interest of equity would be met if his liability for compensation were restricted to Rs.7 lakh. 21. As a result, the appeal is partly allowed and the order of the State Commission is set aside. The respondent is directed to pay to the appellant/complainant the sum of Rs.7 lakh as consolidated compensation, including cost, within four weeks from the date of this order, failing which the sum would be liable to be paid with interest @ 12% per annum from the date of this order till realisation.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL No. 248 OF 2002 (From the order dated 27.03.2002 of the Consumer Disputes Redressal Commission, Union Territory, Chandigarh in Complaint Case no. 6 of 2001) Rajinder Singh Dogra 3152, Sector 28 D                                                               Appellant Chandigarh versus Dr. P.N. Gupta P. N. Urology and Surgical Centre House no. 1359, … Continue reading

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