Strike resulted in Death of a critical patient as Doctor did not resume duties, costed Rs. 5 lakhs to Doctor"

"Undue delay in diagnosis & failure to decide the line of treatment amounts to breach of duty & costed Rs. 5 lakhs to Doctor"

The National Commission in its judgment dated 13/10/2015 in the case of ASHA ABBHI V/s. KANPUR MEDICAL CENTRE PVT. LTD. & 2 ORS, Observed..

You may see the Following Link.
http://cms.nic.in/ncdrcusersWeb/GetJudgement.do…

The Factual Matrix in nutshell is as under :

1. The Husband of the Complainant suffered serious injuries in the night of 11/12.9.1993 in his chest, stomach, face and right eye and hence he was admitted in the Hospital. 

2. It was alleged that during the stay, the Doctor delayed to perform patient’s operation , which resulted in the death within short time. 

3. It was contended on behalf of the Opponent doctors that there was no medical negligence and the Doctor failed to attend such emergency, on the pretext of All India Doctors’ strike, and non-availability of Anesthetist on 17.9.1993.

Held :
1. After going through the record and after hearing of the parties on merits,
the commission upheld the Appeal and enhanced the compensation from Rs.1 lakh as being meagre to Rs.5 lakhs, plus Rs.30,000 towards cost plus 12% interest !!

2. The commission observed that a bare perusal of the clinical signs, indicated the possibility of abdominal (intestinal) injury, thus, emergency laparotomy (opening of abdomen) was necessary and even after perusing the daily progress sheets it revealed that, patient was treated by IV fluids and medication. 

3. No investigations like Ultrasonography or CT Scan was performed to know about the abdominal pathology. Thus, it was the failure / deficiency in service by the Doctor and during the course of treatment in hospital, the Doctor diagnosed it as hematoma in the abdomen.

4. The Commission strongly condemned the failure on part of the Doctor to attend such emergency, on the pretext of All India Doctors’ strike, and non-availability of Anesthetist !!!!

5. The commission also denied the allegations of the Doctor that as the relatives of the patients refused to give consent. Doctor should have taken the consent of the Wife-Complainant instead of waiting for consent of the patient's relatives. It was the bounden duty of the doctor to decide, the correct line of treatment as in the interest of saving the life of patient, the doctor should act. Blindly accepting the words of relatives itself would be unethical, the commission further observed....

6. It relied on celebrated judgment of Supreme Court in the case of Laxman Balkrishna Joshi vs Trimbak Bapu Godbole AIR 1969 SC 128, wherein it has been observed that, " In strict legal analysis "negligence" means more than careless conduct. It connotes (1) duty to take care, (2) breach of the duty and (3) damages thereby suffered by the person to whom the duty owed......., "A person who holds himself out ready to give medical advice and treatment impliedly holds forth that he is possessed of skill and knowledge for the Purpose. Such a person when consulted by a patient, owes certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action of negligence against him. The medical practitioner has a discretion in choosing the treatment which he proposes to give to the patient and such discretion is wider in cases of emergency, but, he must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care according to -the circumstances of each case"

7. This case underlines the importance of Informed Consent and quick decision of treatment.. Because its the right of the Doctor to decide the line of treatment amongst available treatment, but undue delay may land up Doctors in such trouble. As I have already written in few of my Articles, the Informed Consent should be taken from who ever available and if the situation is of life and death then the doctor can act without consent too, but later Doctor should be able to explain the action with proof.....

One thing is also important, that the Medical Negligence cases are always decided on peculiar facts of each case & legal precedents are applied accordingly...

Thanks and Regards

Adv. Rohit Erande.
Pune. ©

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