As Long As Doctor Follows Practice Acceptable To The Medical Profession Of That Day He Cannot Be Liable For Negligence: NCDRC
The National Consumer Dispute Redressal Commission bench comprising Dr. S.M. Kantikar as the presiding member and Mr. Binoy Kumar as member observed that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference to another. The...
The National Consumer Dispute Redressal Commission bench comprising Dr. S.M. Kantikar as the presiding member and Mr. Binoy Kumar as member observed that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference to another. The bench observed this while disposing a complaint for medical negligence and deficiency in service.
In 1998 the patient fell down the ladder and sustained minor injuries to his forearm and was referred to Dr. M.R. Thatte at Mumbai to undergo microvascular repairs and plastic surgery for removal of skin defect. Dr. M.R. Thatte (Opposite Party No.2), after examination, advised flap surgery for removal of skin defects and microscopic repair to ulnar nerves. The patient was then admitted to Bombay Hospital Medical Research Centre on 01.11.1998 and the next day, posterior introsseous skin flap surgery was performed on him. His wife was later told that everything was fine, however, on regaining consciousness the patient went into respiratory arrest.
It was submitted that the patient was still under the influence of general anaesthesia and was "DROWSY" as per the nurse's notes however it was mentioned that the patient was awake. The complainant mentioned that there was a total negligence of the patient by the hospital staff and a lack of proper care post the surgery. As a result the patient underwent hypoxic damage due to substantial gap. Subsequently the patient went into coma and died on 06.08.2000 in Amravati.
The Bombay Hospital Medical Research Centre (Opposite Party No. 1) submitted that the hospital is run by a charitable trust and the doctors working there are not its employees and hence are responsible for the treatment of patients in their individual capacities while the opposite party no. 2 submitted that the complaint was barred by limitation as there was a delay of 350 days in filing it. The Opposite Party No.2 also submitted that the complainant are trying to twist the word awake written in the nurse's notes and the report has not been annexed to the complaint because of which he was not able to verify its truthfulness.
On the question of limitation, the bench perused previous orders of the commission and granted liberty to the complainants to amend the complaint for the act of alleged medical negligence causing death of the husband.
The bench perused through the medical records and found that on 06.11.1998 the surgery was finished at 4:00 pm and the patient was stable by 4:15 pm. In the recovery room there were signs of spontaneous muscular activity, and the patient was attempting to breathe. Patient's spontaneous coughing was also taken care of and it was reversed by administering injections. The patient responded to muscular activity as well as verbal commands. After checking the vital parameters, the doctors decided to shift the patient to recovery room at 4:30 pm. At 5:00 pm the doctors and the nurses again visited the patient to check his vitals and found everything to be normal. However, suddenly at around 5:10 pm the patient had breathing difficulty and his BP started to drop. The OP No.3 along with Dr. Pradhan and Dr. Datar rushed to the recovery room. Patient was intubated and patient was given Adrenaline 1 ml in 100000 inj Mephetin 30 mg inj. Decadron inj. Efcolin 100 mg and Inj Mannitol intravenously. At that stage patients heart rate became 140/ minute, BP 150/90 and O2 saturation was 100% but patient was not responding. The patient started spontaneous breathing at 5.45pm, reacting Pupils to light and then at 6 pm he started responding to painful stimulus. At 7:15pm patient developed some jerky movements for which injection eptoin was given. At 8 pm, he was shifted to ICCU for further management. The bench also observed that in its opinion there was no delay in conducting EEG and CT/MRI.
The commission sought the expert opinion from the committee of experts from the Maulana Azad Medical College, New Delhi which opined that as per the available record, the patient was managed as per standard protocol. The bench observed that the post operative care was as per standard protocol.
The bench also referred to the decision of Hon'ble Supreme Court in the case of Jacob Mathew Vs State of Punjab and observed that as long as doctor follows practice acceptable to the medical profession of that day he cannot be liable for negligence and the decision in the case of S. K. Jhunjhunwala vs. Dhanwanti Kaur and Another where it was held that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent.
The bench noted that the complainant failed to prove conclusively his case of alleged medical negligence and dismissed the complaint.
Case: SMT. MAMTA AGARWAL & ORS. V. BOMBAY HOSPITAL MEDICAL RESEARCH CENTRE & ORS. (CONSUMER CASE NO. 361 OF 2001)