Simple Lack Of Care, An Error In Judgment Or An Accident, Is Not Proof Of Negligence: NCDRC

Brief Facts:

Dr. Ishita Tikka (“patient”) was under antenatal care of one of the doctors in Apollo Cradle Hospital, Amritsar. It was a twin pregnancy and one of the twins was diagnosed with ‘esophageal atresia’ before birth only. Therefore, Dr. Harprakash Singh Miglani performed a pre-term delivery using cesarean section. It was alleged by the patient that without examining, Dr. Miglani performed cesarean section and forced for pre-term twin delivery by putting high risk to the new born twins. The patient’s husband, being a doctor himself, alleged that he noticed through the glass window that proper care was not taken. There was just one nurse who was busy on her phone. Further, the area was kept very unhygienic because of which the babies developed pneumonia and septicemia. Under critical conditions, the babies were shifted to another hospital wherein one of the twins died because of infection which was allegedly caused at Apollo Cradle. Thus, the patient filed this complaint under Section 21(A)(i) of the Consumer Protection Act, 1986 (“the Act”) against Apollo Cradle, Amritsar and its 3 doctors for alleged medical negligence causing her pre-term twin delivery death of one of the twins.

The Opposite Parties contended that the patient, herself being a doctor, did not follow the pre-requisite scans and instructions, which ipso facto itself was negligence. Several steps of medication could have been taken but the patient’s husband refused to consent. The husband of the patient also interfered with the treatment at several stages.

Observations of the Commission:

The NCDRC perused the medical record and observed that when the cardiac defects and anatomical malformations in one of the twins was informed to the husband of the patient, instead of giving consent to the medication and treatment, the husband and his relatives started finding faults in the Opposing Party. The Commission further relied upon the reputed book named ‘William’s Obstetrics (21^st edition) and Pediatric Surgery’ by Benson and held that the act of the opposite party was not intentional and right steps were taken to control the infection. Further, the bench relied upon the AIIMS Protocol of Neonatology which revealed that the early onset neonatal sepsis occurs due to infection of maternal origin and thus, it was observed that it was not an acquired hospital infection. In fact, gross medical negligence was established on the part of the patient’s husband who interfered in the treatment and even administered certain injections himself.

Reliance was placed on the recent Supreme Court decision in Chanda Rani Akhouri vs M.S. Methusethupathi Mithupathi (2021) 10 SCC 291 wherein the court held that no doctor can ensure a full recovery in every case. Liability would only come if:

• Either a person (doctor) did not possess the requisite skills in the branch of the profession;
• Or, he did not exercise with reasonable competence in the given case the skill which he did possess.

It was held that simple lack of care, an error in judgment or an accident, is not proof of negligence on the part of the medical professional. With the aforementioned findings, the NCDRC held that the complainant was trying to levy false and misconceived allegation against the hospital. The treating doctors and the Hospital were absolved of any liabilities.

Case: Dr. Ishita Tikkha vs Managing Director, Apollo Cradle and others

Case No.: Consumer Case No. 1405 of 2019

Counsel for the Complainants: Complainant in Person

Counsel for the Opposite Party: Ms. Suruchi Aggarwal and Mr. Rakshit Jain

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