Hon. Supreme Court held the Hospital vicariously liable to pay RS.76,00,000/- for compensation towards Negligence of it's Doctors. -Adv. Rohit Erande. ©
Hon. Supreme Court held the Hospital vicariously liable to pay RS.76,00,000/- for compensation towards Negligence of it's Doctors.
What was the Negligence and Deficiency in service ?..
1. Failure to supply Medical Records in time and
2. Failure to diagnose Retinopathy of Prematurity (ROP) as a result a premature baby became blind...
Case Details :
Maharaja Agrasen Hospital, New Delhi & ors. v/s Master Rishabh Sharma & ors
Civ. App..No. 6619/2016.
Decided on 16/12/2019.
Coram :
Hon. Uday Umesh Lalit J.
Hon. Indu Malhotra J.
Judgment Link :
Facts of the case in Short :
1. The Respondent - the child patient through his widowed mother and elder brother filed the original compliant for RS.1,30,25,000/- towards medical Negligence against the Hospital and doctors.
2. On 02/04/2005, the Mother delivered the baby @ 32 week's gestation and his weight was only 1.49 kg. at the time of Birth. The baby was in neo-natal ICU, on ventilator support and was discharged after 4 weeks.
3. It was the main contention of the complainants that the mandatory ROP test ( Retinopathy of Prematurity) was not carried out nor it was advised to undergo said test even after discharge, during follow-up.
4..In November-2005 the mother noticed some abnormal visual responses in the baby. She asked for the medical record from the hospital, but hospital did not make it available. In next month when Ultrasound (B.Scan) was conducted in the Shroff Charity Hospital, it was diagnosed that the baby had ROP stage in both the eyes, i.e. total retinal detachment. The baby was then taken to Shankara Netrayala, Chennai and AIIMS Delhi, where ROP stage 5 was confirmed.
5. Hence the complaint in National Consumer Forum was filed thereby claiming Rs.1,30,25,000/ against Hospital. The complaint was allowed by National Commission (J.M. Malik and Dr. S.M. Kantiakr - members) and it granted Rs. 64,00,000/- to the complianant. Hence the Hospital approached Hon. Supreme Court.
Defense of Hospital and Doctors :
1. It was contended on behalf of the Hospital and Doctors that utmost care of the baby was taken and all the allegations of negligence were denied. It was contended that ROP test was performed on 26/04/2005 , but it was negative and it's been recorded in Medical Record. However it was not required to record the procedure of ROP. Rather the baby was advised for subsequent ROP check up also, but the baby was not brought for the same.
2. It relied on the report of medical board of AIIMS which stated that baby was not brought for ROP tests after 2 weeks from discharge.
Held :.
1. Their Lordships dismissed the Appeal filed by the Appellant Hospital. It relied upon the record and various judgements of Apex Court including foreign judgments.
Failure to supply copies of Medical Record amounts to Grave professional misconduct and deficiency in service :
2. It was held that there was inordinate delay on part of Hospital to supply copy of Medical Record. As per clause 1.3 of Code of Ethics Regulation of Medical council, if any request is made, then within 72 hours, the Medical Record should be made available to the patient /authorised agent. It was further observed that failure to follow any of the Regulations amounts to professional misconduct and can attract disciplinary action.
It has been further observed that "This Court in Federation of Obstetrics & Gynaecological
Societies of India v. Union of India (2019) 6 SCC 283 held that “considering
the nature of services rendered by medical professionals,
proper maintenance of records is an integral part of the
medical services.”
3. It was held that as the Appellant Hospital did not provide the medical record in time, the Complainant had to run from this Hospital to another one for checking what's exactly happening with her baby. The Documents were made available after 2 years, that too when a legal notice was sent and a compliant was made to Delhi Medical Council. Thus the Hospital and its management was held liable for deficiency in service.
Failure to diagnose Retinopathy of Prematurity (ROP)
4. Their lordships came heavily on the Hospital for failure to diagnose ROP. It was held that the post-natal developments in the retinal vessels which
could lead to ROP. As per medical literature, all infants with a birth
weight of less than 1500 grams, or gestational age of
less than 32 weeks, are required to be mandatorily
screened for ROP, which usually takes about 4 to 5
weeks to be diagnosed. It was held that he routine screening should
begin no later than 4 weeks after birth, and possibly
even earlier for infants at higher risk (2 to 3 weeks). The Court also relied on the report of "Programme Planning and Screening Strategy in
Retinopathy of Prematurity", published in March 2003 and various other journals and papers of Ophthalmology.
5. The court further relied on its earlier judgment in the case of V.
Krishnakumar v. State of Tamil Nadu ((2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546), wherein the Court imposed compensation of Rs.1.80 Cr. ! In the said case after reviewing and analysing the
medical literature on ROP, observed that the problem
occurs in infants who are prematurely born, and who
have been administered oxygen and blood transfusion
upon birth. If detected during early stages, it can be
prevented. the Court also relied upon 5 doctors AIIMS Medical Board report comprising of 4 ophthalmologists wherein it was observed “All infants with a birth weight less than 1500 gm or
gestational age less than 32 weeks are required to be
screened for ROP.".
6. It is clear from the above medical literature that ROP is a
visually progressive disease, which can be treated
successfully if it is diagnosed on time. ROP advances
through 5 stages. Medical literature suggests that Stage 3
can be treated by Laser or Cryotherapy treatment in order to
eliminate the abnormal vessels. Even at Stage 4, in some
cases, the central retina or macula remains intact thereby
keeping intact the central vision. When the disease
progresses to Stage 5, there is a total detachment, and and the
retina becomes funnel shaped, leading to blindness.
7. Regarding maintaining the record, it was held that there is no contemporaneous record to corroborate
that ROP screening was done by Dr. S.N Jha on
26.04.2005., no proper timing was mentioned and his Counsel was also unable to state the exact timing, upon inquiry.. The Nurses’ Daily Record or Treatment Sheet
do not mention that the dilation of the pupils of the baby
were carried out by administration of Cyclopentolate (0.5%)
and Phenylephrine (2.5%) drops to conduct test of ROP.
8. The Court after perusing the record, also rejected the contentions of the Appellate doctors that the baby was never brought up for check up after discharge from the Hospital.
The Expert Opinion is not binding upon the Courts, the Courts have to draw its own conclusions after carefully going through the medical record and whether the standard protocol was
followed in the treatment of the patient.
9. The Court rejected the AIIMS Medical Board record, since it was based on alleged entry of Dr. S.N. Jha and the Court already held that said record was not properly maintained and seems to be an interpolation done
subsequently to cover up the failure of the Hospital and the Doctors to advise or conduct the mandatory ROP check-up
and follow-up protocol. The Court also rejected the report which said that baby was never brought to OPD after discharge.
10. The Court then discussed the general principles of Medical Negligence and the duty of Doctors in taking care, observed that the Pediatricians and Ophthalmologists undoubtedly possessed the required skill and qualifications but still they are liable for medical negligence
since at no stage were the parents of Complainant No.1
either advised or guided about the possibility of occurrence of
ROP in a premature baby, nor was the baby examined by Ophthalmologist as per standard
protocol, respectively. The doctors ought to have been fully aware of the
high chances of occurrence of ROP in a pre-term baby. The
lack of care constitutes a gross deficiency in service. Had the ROP test been conducted
by the concerned Doctors there would have been timely detection of
the onset of ROP, which at that stage would have been
reversible.
Vicarious Liability of the Hospital :
11. It is well established that a hospital is vicariously liable
for the acts of negligence committed by the doctors engaged
or empanelled to provide medical care. It is common
experience that when a patient goes to a hospital, he/she
goes there on account of the reputation of the hospital, and
with the hope that due and proper care will be taken by the
hospital authorities. If the hospital fails to discharge their
duties through their doctors, being employed on job basis or
employed on contract basis, it is the hospital which has to
justify the acts of commission or omission on behalf of the doctors. Thus the Hospital was held vicariously liable to pay the compensation and all the Doctors and Hospital have been asked jointly and severally to pay the comepsnation. (Ref : Savita Garg v. National Heart Institute (2004) 8 SCC 56; Balram Prasad (2014) 1 SCC
384 : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2
SCC 634; V. Krishnakumar v. State of Tamil Nadu, (2015) 9 SCC 388 : (2015) 4 SCC (Civ)
546)
Compensation :
12. The The Complainants had claimed Rs. 1,30,25,000/- as
compensation before the National Commission., but were awarded a total
sum of Rs. 64,00,000/. By the time the final decision of Apex Court, the Baby patient -complainant no.1 became 14 years of age. Intially he was taking education from Government Senior Secondary School
for Blind Boys, Kingsway Camp, but his mother stated on affidavit that forced to leave school since she was unable to bear his
educational, co-curricular and transportation expenses as she was getting only Rs.5500/- as monthly salary and Rs.2500/- under the Delhi Vidhwa
Pension Yojna.
Why Compensation is to be paid?
The Court observed that the grant of compensation to remedy the wrong of medical
negligence is within the realm of law of torts. It is based on
the principle of restitutio in integrum. The said principle
provides that a person is entitled to damages which should
as nearly as possible get that sum of money which would
put him in the same position as he would have been if he
had not sustained the wrong. (Ref : V. Krishnakumar v. State of T.N., (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546;
Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327).
The Court enhanced the compensation by Rs.12,00,000/- awarded by national Commission and made it to Rs.76,00,000/- and also directed how the said amount is to be invested in the name of the Mast. Risabh - the complainant.
13. This judgment is of utmost importance for every one. Any one can understand the amount of ordeal and predicament of the complainants. At the same time, for Doctors, this judgment once again proves that there is no option for proper documentation and record keeping and proper treatment as per standard protocol. The Doctors may raise thier age-old demand for capping of compensation.
Thanks and Regards,
Adv. Rohit Erande
Pune. ©
Comments
Post a Comment