CONSUMER PROTECTION ACT & MEDICAL NEGLIGENCE. ACT AND PRACTICE OF PATHOLOGY . Know thy law . Tort Contract Consumer Protection Law Civil Courts Tribunal – Consumer Fora . CONSUMER PROTECTIN ACT. AN ADDITIONAL REMEDY A BENEFICIARY LEGISLATION
ACT AND PRACTICE OF PATHOLOGY
AWARD COMPENSATION FOR LOSS OR INJURY SUFFERED DUE TO NEGLIGENCE; AND/OR ORDER OPPONENT TO
REMOVE DEFICIENCY IN SERVICE
DISCONTINUE THE UNFAIR TRADE PRACTICE
PAY SUM TOWARDS LOSS OR INJURY SUFFERED BY LARGE NUMBER OF PEOPLE
PROVIDE FOR ADEQUATE COST TO PARTIES
In Smt. Archana & 4 Ors. v/s Chaudhari Chest Hospital & Ors., 1998(1) CPR 556, State Commission Maharashtra held as follows: ‘Medical Negligence-Deceased husband of Complainant was operated for hip bone fracture and he passed away in same evening. Complainant alleged no proper post operative care and patient had excessive bleeding. Negligence attributed to massive outflow of blood to the extent of 2500 ml.
Medical evidence and Panchanama did not support that conclusion..... Pathological report showed that deceased had no diabetes, mellitus, ischaemic heart disease and therefore no blood clotting test was required under such circumstances. As per medical literature in case of hip fracture risk of embolism could develop at the time of fracture and not at surgery. Unexpected death could occur on account of pulmonary embolism. In post mortem report, doctors were unable to arrive at definite opinion regarding cause of death. Possibility of pulmonary embolism being cause of cardiac shock leading to death could not be ruled out which does not make any case of negligence on the part of doctor.’
Supreme Court inter alia held as follows:
The duties, which a Doctor owes to his patient, are clear. A person who holds himself out ready to give medical advice and treatmentimpliedly undertakes that he is possessed of skill or knowledge for the purpose. Such a person, when consulted by a patient, owes him certain duties, namely a duty of carein deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in administration of that treatment.
A breach of any of these dutiesgives a right of action for negligence to the patient. The petitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care.
a) Where services are rendered free of charge to everybody availing the said services;
b) Where charges are required to be paid by everybody availing the services; and
c) Where charges are required to be paid by persons availing the services but certain categories of person who cannot afford to pay are rendered service free of charge.
Absence of a basic qualification for a homeopathic doctor to practice a system of medicine (allopathy) in Poonam Verma V/s Ashwin Patel & Ors., (1996) CPS, (SC). Supreme Court held that a person who does not have knowledge of a particular system of medicine but practices in that system is a quack. Where a person is guilty of negligence per se, no further proof is needed.
Lord Denning: “Every Surgical operation is attended by risks. We can not take the 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 Nihal Kaur v/s Director, P.G.I.M.S.R. III (1996) CPJ 112 where a patient died a day after surgery and the relatives found a pair of scissors utilized by the surgeon while collecting the last remains, a compensation of Rs. 1.20 lakhs was awarded by the State Commission, Chandigarh on the grounds that negligence was writ large on record in handling the case though it was argued that arterial forceps and sponges were left behind in an attempt to save the life of the patient and (the said things were to be later removed, but could not be done as the patient died) the same did not contribute to patient’s death.
In a landmark case, on 5.5.1998, the Supreme Court of India confirmed the order of the National Commission, which awarded a compensation of Rs. 12.5 lacs (out of the said amount Rs. 12,37,500/- is to be paid by the Insurance Company) as compensation to a minor and Rs. 5 lacs as compensation to the parents. The case, which attracted a great deal of public attention was:
National Commission in considered the question of Medical Negligence considering the fact that there was no EXPERT EVIDENCE on behalf of the complainant. This is a very important case particularly for the medical fraternity because the value of expert evidence was recognized in this case.
Hon’ble National Commission deliberated on important issues such as what constitutes medical negligence, duty of a hospital to engage a specialist when a specialist is available, vicarious liability of a hospital for omissions and commissions of doctors and staff, compensation for mental and physical torture etc.,
“Hydronephrosis is a chronic disease with excess accumulation of water in the kidney. It is usually caused by the blockage of the ureter leading from the kidney. In early stages it may be possible to unblock the ureter, but in later stages removal of the kidney itself may be necessary”.
As the Complainant did not succeed by pressurizing the Opponent doctor, he lodged a CRIMINAL COMPLAINT OF THEFT on the Opponent doctor at Miraj Police Station. Opponent doctor was called to the police station for interrogation when all relevant papers were produced in police station. The police department then admitted the complainant to Civil Hospital, Sangli, had a panel of doctors investigate him, and a report was submitted to the Superintendent of the Police of Sangli. Complainant did not stop his coercive tactics even at this stage but persisted with harassment of the doctor
Code of Medical ethics and ‘right to life’, a fundamental right
The Appellant after obtaining MBBS degree from Jawaharlal Institute of Post Graduate Medical Education and Research, Chandigarh, completed his internship and junior residency at the same college. Later he joined the Nagaland State Health services as Assistant Surgeon Grade -1. One Itokhu Yepthomi who was ailing from a disease that was provisionally diagnosed as Aortic Aneurysm was advised to go to the Apollo Hospital at Madras and the Appellant was directed by the Government of Nagaland to accompany the said patient to Madras for treatment.
The appellant and one Yehozhe who was the driver of Itokhu Yepthomi were asked to donate blood for the latter. Their blood samples were taken and the results showed that appellant’s blood group was HIV(+ve). In August, 1995 the Appellant proposed marriage to one Ms. Akali which was accepted and the marriage was proposed to be held on December 12th, 1995. 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(+ve).
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 Appellants HIV (+) status. This resulted in severe criticism of the Appellant and he was ostracized by the community.
When Medical Negligence may lead to criminal prosecution and arrest?
Supreme Court of India declared while reviewing an order made by another bench of the apex court in Dr Suresh Gupta's Criminal Petition that extreme care and caution should be exercised while initiating criminal proceedings against medical practioners for alleged medical negligence.
Supreme Court did not favour dismissal of consumer cases filed against a hospitals on technical grounds.
Dr. J.J.Merchant and Ors. V. Shrinath Chaturvedi, 2002(4) ALL MR 605 (S.C)the Apex Court inter alia dealt with the procedure relating to conduct of matters before the Consumer Fora, delay in disposal of complaints and whether a complicated matter has to be necessarily dismissed by the Consumer Redressal Agency with liberty to approach the civil court
National Commission called for qualitative change in the attitude of the hospitals. National Commission called upon the hospitals to provide service to the human beings as human beings. The Commission felt human touch is necessary. The Commission observed: “that is their code of conduct; that is their duty and that is what is required to be implemented. In emergency or critical cases let them discharge their duty/social obligation of rendering service without waiting for fee or for consent Commission”
National Commission held that doctors are required to take risk while performing their job and merely because a patient dies to certain accidental eventualities does not establish deficiency in service or negligence on the part of a doctor or a hospital.
The relationship between Doctor/Hospital and Patients is a relationship of trust; doctors are still known as healers!There is no real alternative!!Let not commercialization destroy the edifice of medical practice!!!