Merely a person suffers from a bad outcome of medical treatment, does not accrue an automatic right to sue the hospital or doctor for compensation. : Adv. ROHiT ERANDE

"Merely a person suffers from a bad outcome of medical treatment, does not accrue an automatic right to sue the hospital or doctor for compensation."

"The ex-Professor of Forensic Medicine cannot be called as an expert on Oncology and Urology" 

Adv. ROHiT ERANDE.©

Case Details :

NANDINI BANDYOPADHYAY V/s. BELLE-VUE CLINIC & ANR., WEST BENGAL.     R.P. No. 2014/2015. 

By : HON'BLE MR. ANUP K THAKUR,PRESIDING MEMBER & HON'BLE Dr. S.M. KANTIKAR.

Judgement Link : 

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FRP%2F2014%2F2015&dtofhearing=2021-03-05

Facts in Short :

1. The Complainant's' Father, Mr. Mr. P. K. Mukherjee, 84 yrs, (since deceased, hereinafter referred to as the ‘patient) was admitted to the Opponent Hospital, as he had weakness and pain in left groin. This is the case of June-2007.

2. After the USG and few Blood Tests, it was diagnosed as the case of Liver and Lungs Cancer. CT Guided FNAC (Fine Needle Aspiration Cytology) was also performed, but it was painful and found to be suffocating for patient. On next day, bedsore was also noticed in Back. The Catheter was also inserted in the Bladder. 

3. It was alleged that  The treating doctor failed to exercise reasonable degree of care to diagnose and control the urinary infection .It was alleged that the dereliction of duty by the Opposite Parties, which precipitated the sepsis leading to death of the 84 years old patient within six days of his admission.  and they also failed to co-relate the raised blood levels of fibrinogen, D-dimer and PSA. It was contended that at earlier stage did not examine or investigated the patient for simple tests like a plain Chest X-ray, USG abdomen and a few blood tests and that the lung Cancer normally spreads locally and after duration to other parts and   the liver. The patient died on 06/06/2007 and hence a case was filed in District Forum, Unit-I Kolkata. 

4. the District forum dismissed the compliant and so did the State commission dismissed the Appeal of the Complainant and hence the matter reached to National commission. 

Defence :

1. The Doctor and the Hospital contended that the medical record shows that the patient was admitted with severe weakness, general debility and malnutrition. There was low hemoglobin and low albumin level in the blood. Due to prolonged poor nourishment, the patient was immobile. The nursing note revealed the peeling of superficial skin over the back. 

2. The patient was suffering from comorbidities like Hypertension and Prostrate problem.  He was on medication. The USG of liver showed evidence of space occupying lesion (SOL) and  clinically it was diagnosed as disseminated malignancy (Stage IV cancer) having poor prognosis. all other tests alaos showed the existence of Cancer. The patient was referred to renowned oncologist Prof. Anup Majumder who also opined the same and this fact was made known to the wife of the patient alongwith limited therapeutic options because of poor condition of the patient.  

Held ;

1. The National commission after perusing the medical record and the arguments, dismissed the petition of the Complainant. 

2. It was observed that the compliant was filed based on the expert opinion Dr. Ajay Kumar Gupta, the ex-Professor of Forensic Medicine at Govt. Medical College. But the Commission rejected the opinion by holding that said Dr. Gupta cannot be called as an Expert in Law as he was neither a subject expert nor qualified in Oncology and Urology.

3. It was observed that, our considered view,   the death of the patient was due to   advanced   cancer with lung and liver metastasis; it was neither due to negligence nor deficiency in service during the treatment from the Opposite Parties.  It should be borne in mind that “No cure is not negligence of doctors”.

4. The Commission relied upon the celebrated judgement of Hon’ble Supreme Court in Jacob Mathew’s case, (2005)6 SSC 1, wherein it was held that

 “When  a  patient  dies  or  suffers  some  mishap,  there  is  a  tendency  to  blame  the  doctor  for  this.   Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every  case  in  his  professional  career but surely  he  cannot be  penalized for  losing  a  case  provided  he appeared in it and made his submissions.”

 5. Lastly it was held that the condition of the patient did not improve despite proper treatment. It resulted into the death of the patient. Therefore, just because a person suffers from a bad outcome of medical treatment, does not accrue an automatic right to sue the hospital or doctor for compensation.

The Honorable National commission has reiterated  the settled law that "No cure is not negligence". It is a general tendency to blame doctors whenever any mishap happens. The Courts have taken stringent views where there has been really negligence and have awarded compensation in crores of rupees. This judgement has also thrown light on who can be called as an expert.

thanks and regards,

Adv. ROHiT ERANDE

Pune.  ©