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Important Supreme court Decisions on
medical Negligence
Listed below are landmark supreme court
judgments on consumer laws each has been discussed in details:
# Juggankhan v State of Madhya Pradesh
# Dr. Laxman Balkrishna Joshi v Dr. Trimbak Bapu Godbole & Another
# A.S. Mittal and another V State of UP and Others
# Indian Medical Association v V.P. Shanta and Others
# Achutrao Haribhau khodwa & others v State of Maharashtra
# Poonam Verma v Ashwin Patel & others
# Spring Meadows Hospital & another v Harjol Ahluwalia through K.S.
Ahluwalia & Another
Juggankhan v State of Madhya Pradesh (1965)1 SCR 14]
Date of Decision: 10.08.1964
The appellant, a registered Homoeopathic medical practitioner under
the Madhya Pradesh Homoeopathic and Bio-chemic Practitioners Act,
1951, issued a pamphlet advertising that he inter alia treated
Naru (guinea worm). Believing this, Smt. Deobi, aged about 20 year
visited the appellant's clinic. along with some member: of her family,
for treatment. The appellant administered 24 drop. of mother tincture stramonium and a leaf of dhatura. However, soon after taking the
medicine, Deobi felt restless and ill and despite administration of
antidotes, she died the same evening. In the trial for murder under
section 302 of the IPC, the appellant was convicted. When the matter
reached the Apex Court, the Court considered whether. in view of the
nature of the appellant' offence he was rightly convicted under s 302
of the IPC. The Court agreed with the lower Courts that Deobi' death
resulted from poisoning. However. after considering the material, the
Court found it could not be established that the administered dose was
fatal or that the appellant had administered stramonium drops and
dhatura leaf with the knowledge that it was likely to cause death. But
the court observed that stramonium and dhatura leaf were poisonous and
in Homoeopathy dhatura leaf was never administered as such. In fact.
in no system of medicine, except perhaps Ayurvedic, was: dhatura leaf
given as a cure for guinea worms and that the appellant prescribed the
medicine without thoroughly studying the effect of giving 24 drops of
stramonium and a leaf of dhatura. The COUl1 held that it was a rash
and negligent act to prescribe poisonous medicines without studying
their probable effect. The Court also held that though it was true,as
ruled in , John Oni v King [AIR (1943) 30 PC 72], that care should be
taken before imputing criminal negligence to a professional man acting
in the course of his profession, even then it was clear that the
appellant was guilty of a rash and negligent act and hence liable for
conviction under s. 304A, IPC.
Dr. Laxman Balkrishna Joshi v Dr. Trimbak Bapu Godbole & Another
I (1969) 1 SCR 206]
Date of Decision~02.05.1968
The son of respondent 1 met with an accident which resulted in the
fracture of the femur of his left leg.. After some nominal treatment by
a local physician, the injured son was taken to Pune and ultimately to
the appellant's hospital. The appellant prescribed two injections of
morphia and Hyoscine Hvdrobromide at an hour's interval but only one
injection was administered. After the x-ray, the boy was taken to the
operation theatre where his injured leg was put in plaster splints and
then he was moved to a room. Subsequently, the boy developed
difficulty in breathing and cough and his condition deteriorated. He
expired the same night, in spite of the emergency treatment
administered by the appellant. The appellant issued a certificate
stating that the cause of death was fat embolism. Respondent no.1
filed a case of tortuous damage again t the appellant surgeon inter alia
alleging that his son's leg was put in plaster using manual
traction and excessive force (with the help of three men) though such
traction was never done under morphia alone but under proper general
anesthesia. The appellant denied the allegation of excessive force
and submitted that given the patient's condition, general
anesthesia Was not found to be desirable and that he had, therefore,
decided to delay the reduction of fracture and instead carried out
only immobilization of the leg for the time being with light
traction. The Trial court and, in appeal, the Bombay high Court gave
concurrent findings in favour of respondent no. 1 and held that the
appellant had undertaken reduction. of the fracture without caring to
give anesthesia and that excessive force was used in the process
which resulted in shock causing the patients death and awarded
damages. In appeal by special leave, the Supreme Court considered the
evidence relied upon by the appellant and held that there was no
ground for interference in the findings of the lower Courts. The Court
also took into account that respondent no. 1 was himself a medical
practitioner of standing though not an expert in surgery and would
understand the treatment given, to which he was a witness.
The Court observed that a person who held himself out ready to give
medical advice and treatment impliedly undertook that he was possessed
of the skill and knowledge for the purpose. Sucb a person owed to his
patient certain duties, viz., a duty of care in deciding whether to
undertake the case, a duty of care in deciding what treatment to give
or (and - sic) a duty of care in the administration of that treatment.
A breach of any of these duty gave a right of action for negligence to
the patient. The medical practitioner must bring to his task a
reasonable degree of skill and knowledge and must exercise a
reasonable degree of care. Neither the very highest nor a very low
degree of care and competence, judged in the light of the particular
circumstances of each case was what the law required: (cf. Hal bury's
Law of England, 3rd ed. vol. 26 p. 17). A doctor no doubt had
discretion in choosing the treatment that be proposed to give to the
patient and such discretion was relatively ampler in cases of
emergency. But this question was not relevant in the present
case in view of the factual finding:. The surgeon's appeal was dismissed
with costs.
A.S. Mittal and another V State of UP and Others{ (1989) 3 SCC 223)
Date of Decision~12/05/1989
In a public interest litigation filed under Article 32 of the
Constitution, the Apex Court considered the mishap in an 'Eye Camp'
at Khurja, Uttar Pradesh organised by the Lion Club with permission of the
state
Government in which one Dr. R.M. Sahay of Sahay Hospital, Jaipur and hi
team of doctor performed ophthalmological surgeries. About 108 patient
were operated upon of which 88 underwent cataract surgery. However, at
least 84 persons suffered permanent damage to their operated eyes. It
was said that in a similar camp conducted by the same team of doctors
in Moradabad, there were 15 casualties. Two inquiries were conducted
by the state Government and report. produced before the Court It was
found that the mishap was due to a common contaminating source i.e.
'normal saline' used on the eyes at the time of Surgery. These were
brought by Dr. Sahay who claimed to have purchased them from a
Jaipur-based firm. The Court observed that a criminal case had been
registered against Dr. Sahay under section 338 [PC. It accepted the
doctor's submission that the Court in the present proceeding need not
comment on the question of culpable rashness or negligence on the part
of doctors, etc. However, the Court went to observe that a mistake
by a medical practitioner which no reasonably competent and careful
practitioner would have committed was a negligent one. It also
referred to the concept of reasonable man and that the law recognized
the dangers which were inherent in surgical operations and also referred to the decision in the
case of Dr. Laxman Balkrishna Joshi v Dr. Trimbak Bapu
Godbole & Another [(l969) 1 SCR 206] amongst others, In view of
the foregoing, the court confined the
proceedings to whether the State Guidelines prescribing norms and
conditions for the conduct of 'eye-camps' were sufficiently
comprehensive to ensure protection of the patients who were generally
drawn from the poorer sections of the society and the relief to those
affected. The Court noted that during the pendency of the matter. the
Central Government had brought out revised Guideline. which ere
found to be sufficient. However, the Court emphasized the need to
maintain sterile aseptic conditions in hospitals to prevent infections
and prior testing of drugs and deprecated the deterioration of
standards. On the question of relief, the court observed that though
it would not entertain any plea for monetary claims based on state
action in these PIL proceedings, on humanitarian grounds it directed the State Government to pay a further,
sum of rs. 12,500/- to each of the victims in addition to Rs. 5,000/- already paid by
the
Government.
Indian Medical Association v V.P. Shanta and Others [(1999) 5
SCC 651]
Date of Decision~13/11/1995
A three-Judge Bench of the Apex court considered the important
question whether and, if so, in what circumstances, a medical
practitioner could be regard d as rendering' service' under section 2(
1)( 0) of the Consumer Protection Act,1986 and whether the services
rendered at a hospital/nursing home could also be regarded as
'service.' Relying upon it decision in Lucknow Development Authority
v, M.K. Gupta. (1994) 1 SCC 243 (where it was held that the
definition of 'service' in the Act was very wide), the Court
rejected the argument that only 'occupation' and not 'profession'
was covered within the term 'service' and so services rendered by
medical practitioners were outside the purview of section 2(1)(o). It
also rejected an alternate argument that 'service' contemplated under
the Act was of the "institutional type which was really
commercial enterprise open available to all who seek to avil
thereof"
Referring to section 14(1)(d) and section 2(1)(g), the Bench held that
compensation for deficiency in service was to be awarded applying
the same test as in an action for damages for negligence. it went on
to observe that the standard of care that was required of medical
practitioners was laid down in the English decision in Bolaml v
Friern Hospital Management Committee 1(1957) 1AI/ ER 118] which had
been accepted by the house of Lords and applied in a number of cases.
Reference was also made to the Court'. earlier decision in Dr.
Laxman Balkrishna Joshi v Dr. Trimbak Bapu Godbole & Another [(1969)
1 CR 206].
The Supreme Court repelled the contention that the Consumer Fora were
not equipped to appreciate complex issues which might arise in cases
of medical negligence and observed that these Fora were presided over
by Judges/retired Judge who were well versed in law and, combined with
lay decision making by members with knowledge and experience in
various.
fields, the constitution of the Fora was adequate to deal with cases
of medical negligence. Further, the. safeguard of appeal against the
orders of the Fora was available. The Court also did not agree that
the summary procedure provided for in the Act was not sufficient to
deal with such cases and observed that not every complaint would raise
complicated questions. It also observed that in complaint' involving
issues requiring recording of expert evidence, the Fora could ask
the complainants to approach the civil court. It also noted that very
few cases of medical malpractice had been filed till 1985, one of the reasons
of which was the court fee payable in an action for damages (before
civil courts) but no court fee was required to be paid under
the Act,
Holding medical practitioners , government hospitals/ Nursing
homes and private hospitals/ nursing homes fell into three categories::
(I) where services are rendered free of charge to everybody;
(ii)
where charges are required to be paid by everyone; and
(iii) where charges are required to be paid by persons availing of
services but certain categories of persons who could not afford to pay were
rendered service free of charge,
The Court laid down the following
criteria:
(i) Service rendered to a patient by. a medical practitioner (except
where the doctor rendered service free of charge to every patient or under
a contract of personal service), by way of consultation, diagnosis and
treatment, both medical and surgical, would fall within the ambit
of 'service' as defined in section 2(1)(0)
(ii) Merely because medical practitioners belong to medical
profession
and are subject to the disciplinary control of the
Medical Council of lndia and / or state Medical Councils would not
exclude the services rendered by them from the ambit of the Act
(iii)
A 'contract of personal service' was to be distinguished from a
'contact for personal services' (as only contract of personal service
are expressly excluded from definition of service in section
2(1)(0). In the absence of relationship of master and servant
between the patient and the medical practitioner; the service
rendered by a medical practitioner to the patient would be under a 'contract
for
personal services and thus, is not outside section 2(1)(0),
(iv)
The expression 'contract of personal service' in section 2.(1)(0) of
the Act could not be confined to contract for employment of domestic
servants only and the expression would include the employment of a
medical officer for the purpose of rendering medical service to the
employer. However, such service would be would be outside the purview of
section2(1)( 0).
(v) Service rendered free of charge by a medical practitioner attached
to a hospital/nursing home or a medical officer
employed in a hospital/nursing home where such service were rendered
free of charge to everybody would not be 'service' as defined
in section 2(1)(0). The payment of a token amount only for
registration purpose at the hospital/nursing home would not alter the
position.
(vi)
Similarly, service rendered at a non-Government hospital/nursing home
where no charge whatsoever was made from any person availing of the
service and all patients (rich and poor) were given free service was
outside the purview of tile expression 'service.' The payment of a
token amount only for registration purpose only at such a hospital/nursing
home would not alter the position.
(vii) Service rendered at a non-Government hospital/nursing home where
charges were required to be paid by all persons availing of such
services fell within the purview of the expression 'service' as defined
in section2(1)(o).
(viii) Service rendered at a non-Government hospital/nursing home
where charges were required to be paid by persons who
were in a position to pay and persons who could not afford to pay
were rendered service free of charge would fall within 'service' as
defined in section 2(1)(0). Free service rendered to those who could
not pay would also would be 'service' and the recipient a 'consumer'
under the Act. In arriving at this conclusion, the Court opined that
(a) the protection envisaged under the Act was for consumers as a
class;
(b) otherwise, it would mean that the protection of the Act
would be available to only those who could afford to pay and not to the
poor, although the poor required the protection more; and
(c) Else
the standard and quality of service rendered at an the establishment
would
cease to be uniform.
(ix) Service rendered at a government hospital/health
centre/dispensary where no charge whatsoever was made from any person
availing of the services and all patients (rich and poor) weregiven free service was outside the purview of
the expression 'service'
as defined in section 2(1)(0) of the Act The payment of a token amount
for registration purpose only at the hospital/nursing home would not
alter the position.
Service rendered at a Government hospital/health centre/dispensary
where services were rendered to some persons on payment of charges
and also rendered free of charge to other persons would fall within
'service' as defined in section 2(1)(0). Free Service to those who
could not pay would also be 'service' and the recipient a 'consumer'
under the Act. Though Governmental hospitals may not be commercial in
the sense of private doctors and hospitals, stin Government hospitals
could not be treated differently and in such a case the persons
belonging to 'poor class' received free services would be the
beneficiaries of the services hired/ availed of by the 'paying
class.'
(xi)
Service rendered by a medical practitioner or hospital/nursing home
could not be regarded a service rendered free of charge if the person
availing of the service had taken an insurance policy for medical
care where under the charge for consultation, diagnosis and medical
treatment were borne by the insurance company. It would fall within 'services"
as defined in section 2(1)(0).
(xii)
Similarly, where, a a part of the condition of services', the employer
bore the expenses of medical treatment of an employee and his family
members dependent on him the service rendered to such an employee
and his family members by a medical practitioner or a hospital/nursing
home would constitute 'service' under the Act.
Achutrao Haribhau khodwa & others v State of Maharashtra & others
[(1996) 2SSC 634]
Date of Decision: 21/02/1996
The appellant' suit was that after a simple sterilization operation
performed by the respondent doctor, the patient developed high fever
and acute pain and her condition deteriorated. On another surgeon
reopening of the wound of the first operation, he found that a mop
(towel) had been left inside which had led to formation of pus.
Despite the econd surgery, the patient died. The second surgeon was
produced as the Appellants' witness . The trial Court decreed the suit.
In Appeal by the state Government, the Bombay High Court dismissed the
suit on the ground that in law the state could not be held liable
tortuous
act committed in a hospital maintained by it and that though the
respondent doctor had been negligent in leaving the mop inside the
patient's abdomen it could not be proved that this was the cause of
the death. Relying upon State of Rajasthan v Vidhyawati [AIR
J963 SC 933], N Nagendra Rao and Co. v Slate of A..P {(1994) 6 scc 205] and
State maharashtra v Kanchanmala Vijaysing Shirke. [(1995) 5scc 659]
and distinguishing Kasturi lal Ralia Ram Jain v Stale of UP. [AIR 1965, C 1039], the Supreme Court held
that running of hospitals by the Government was a welfare activity and
not a function carried out in exercise of its sovereign power. The
Court then referred to Bolam v. FeiernHospital Management Committee,
[(1957) 2 All ER 118] (followed by the House of Lords in Sidaway v
Board of governors of Bethlem Royal hospital [ [(1985) I All ER 643])
where the English Court had laid down the test that a doctor was not
guilty of negligence if he acted in accordance with :a practice
accepted as proper by a responsible body of medical men. skilled in
that particular art. The Court, however, observed that the Australian
High Court had taken a somewhat different view in Rogers v Whitaker
[(1993) 109 AlR). The Court relied upon Dr. Laxman Balkrishna Joshi v Dr. Trimbak Bapu
Godbole & Another [(l969) 1 SCR 206] ,
A.S. Mittal and another V State of UP and Others{ (1989) 3 SCC 223)
and India Medical Association v VP Shantaha & others
(1995) 6 SCC 651] and went on to observe that despite difference in
medical opinions regarding the course of action to be adopted (in a
particular case), as long as a doctor acted in a manner acceptable to (a responsible body of opinion in) the medical
profession and exercised due care, skill and diligence, he could not
be held negligent irrespective of the result. The Court, however, held
that in this case, the doctrine of res ipsa loquitur was applicable as
admittedly, the death occurred due to peritonitis which could have
been only because of leaving of be mop in the patient' peritoneal
cavity during the first surgery, an act of which no valid explanation
had been given by the respondent-doctors. The Court further observed
that even if the peritonitis was considered to be due to the. second
surgery, still the second surgery had to be performed because of
leaving the mop inside and that merely because it might not have been
conclusively proved as to whichof the doctors employed by the
Government was negligent, it could not he a ground for denying the
claim.
Poonam Verma v Ashwin Patel & others (1996)4SCC332]
Date of Decision: 1 0.05 .1996
Respondent 1 doctor had a Diploma in Homeopathic Medicine and surgery.
He administered allopathic drugs for viral fever and then typhoid
fever to the patient who was subsequently shifted to a nursing home
where he died, After the dismissal of the complaint, the complainant
filed appeal to the Supreme Court. The Court found that respondent 1
was registered as a medical practitioner with the Gujarat Homeopathic
Medical Council but not under theAllopathic system.
Referring to the decision in the Case of the India Medical
Association v VP Shantaha & others
(1995) 6 SCC 651], the Court noted that medical practitioners were covered under
the Consumer Protection Act and that negligence as a tort was the
breach of a duty caused by omission to do something which a reasonable
man would do or doing something which a prudent and reasonable man
would not do. To determine medical negligence, the Court referred to
Bolam v. FeiernHospital Management Committee,
[(1957) 2 All ER 118]
that the standard was that of the ordinary medical man professing to
have that special. kill and exercising it and noted that this ruling
had been approved by the House. of Lords/English Courts in
Whitehouse v.Jordan [(1981) 1 All ER 267]. maynard v West
Midlands Regional
Health Authority [(1985) J All ER 635]. Sidaway v
Board of governors of Bethlem Royal hospital [ [(1985) I All ER 643]) and Chin
Keow v Gcvernment of
Malaysia [(1967) 1 WLR 813 PC] as well as as the courts decision
in Dr. Laxman Balkrishna Joshi v Dr. Trimbak Bapu
Godbole & Another [(l969) 1 SCR 206] and
A.S. Mittal and another V State of UP and Others{ (1989) 3 SCC 223).
Reviewing
(i) the provision. of tile Bombay Homeopathic Practitioners'
ACT 1959 defining 'homeopathy' as the homeopathy system of medicine
and that a practitioner registered under that Act shall practice
homeopathy only, i.e., such a practitioner was entitled to treat
patient only according to the homeopathic system of medicine;
(ii)
the allopathic system of medicine was regulated under the Indian Medical Council Act, 1956
whichh made practicing modern/allopathic system of medicine without the requisite qualification/enrolment
punishable; and
(iii) the provisions of the Maharashtra Medical Council
Act, 1965, which cast upon the respondent 1 doctor a statutory duty
not to enter into any other field of medicine. breach of which made
him liable for prosecution under the Indian Medical Council Act.
the Court concluded that in view of these statutory provisions, the
doctor in this case was guilty of Negligence per.se, violation of public duty enjoined by
law for the protection of
person or property (vide definition in Black's law Dictionary). While
awarding damages, the Court also observed that none of the
prescriptions advised necessary pathological test for
confirming/ruling out typhoid which was the usual practice of doctors
dealing with selected cases of typhoid and concluded that the doctor
bad prescribed medicines for typhoid without requiring the patient
to undergo pathological tests for typhoid fever and the plea of
advising the said test orally was also contrary to the code of conduct
of medical practitioner.
Spring Meadows Hospital & another v Harjol Ahluwalia through K.S.
Ahluwalia & Another [(1998) 4 SCC 39]
Date of Decision: 25/03/1998
In this complaint of the minor child through his parents before the
National Commission. it was contended that the child was admitted to
the appellant hospital as in-patient with diagnosis of typhoid. The
nurse asked the child's father to purchase the injection Inj. Lariago
recommended by the Senor Pediatrician to be
administered intravenously. When the nurse administered the
injection, the child collapsed immediately. The resident doctor found
that the child had. suffered cardiac arrest and he attempted to
resuscitate the child by manual pumping. After half an hour, the
Anaesthetist also reached the scene and started the procedure of
manual respiration and the Senior Paediatrician also followed but here was
no improvement in the child' condition. On advice. the child was shifted to the All India Institute of Medical.
sciences (AIlMS). The
doctors at the AlIMS informed the parents that the child was in a
critical condition and even if he survived he would live only in a
vegetative state having suffered irreparable damage to the brain.
sometime later, the child was discharged and again admitted to the
appellant hospital. Based on the evidence, the commission concluded that
the child had suffered cardiac arrest because of intravenous
injection of an excessive dose of the injection and that due to considerable delay in measures to revive the heart, the child's brain had
been damaged. The Commission found that there was clear dereliction of
duty on the part of the nurse and that the hospital was negligent in
having employed an unqualified person as nurse and entrusting the child
to her care. It also held that the resident doctor was negligent since
he failed to follow the instruction of the Senior Paediatrician that
the injection. should be administered by a doctor. The Commission held
that since the resident doctor and nurse were employees of the
appellant hospital, the latter was Iiable and awarded compensation
of Rs 12 .51akh to the chiId and of Rs.5 lakh to the parents for
acute mental agony.
In the appeal of the hospiral, the supreme Court observed that beause
the Conumer Protection Act was a beneficial legislation intended to
confer. speedier remedy on consumers, its provisions should receive a
liberal construction. The Court commented that the relation. hip between
a doctor and the patient was not equally balanced as the patient's
attitude towards a doctor was poised between trust in the learning of
another and the general distress of one in a state of one in a statw
of uncertainity and further observed that it wvas difficult for a patient to successfully
bring a medical negligence case against the doctor given. the practical
difficulties in linking the injury with the treatment and establishing
the requisite standard of care. Bur it also noted that with the advent
of the Consumer Protection Act, in a few cases patients had been able
to establish the doctor's negligence. Relying upon a decision of
House. of Lords/English Courts in Whitehouse v.Jordan [(1981) 1
All ER 267] the
Court noted the ruling,
"The true position hat an error of judgment may or may not be
negligent it depends on the nature of the error. If it is not one that
would not have been made by a reasonable competent professional man
professing to have the standards and type of skill that the defendant
held himself out as having, and acting with ordinary care, then it is
negligence, if on the other hand, it is an error if such a man, acting
with ordinary care, might have made, than it is not negligence"
The Court also indicated thatuse
of wrong drug or gas during anesthesia or delegation of
responsibility knowing that the delegatee was incapable of performing
his duties properly were some instances of tortious negligence.
The Court also rejected the contention of the hospital that the
child's parents were not covered within the definition of consumers in
s. 2(1 )(d) of the Act and could not be awarded compensation
separately. It held that when a child was taken to a
hospital by his parents and the child was treated by a doctor, the
parents would come within the definition of consumer having hired the
services of the hospital/doctor and the child would also be a
consumer under the inclusive part of the definition, being a
beneficiary of such services. Therefore, both the parents and the
child would be 'consumer' and could a such claim and be awarded
compensation. |
