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Understanding Medical Negligence through the case of NIMS V. Prasanth Dhananka

The medical profession is considered to be one of the noblest professions on the planet Earth. And due to this special status, medical practitioners are often put on a pedestal and it's more often than not that they are expected to take an absolute amount of care. We expect the doctors and medical professionals to follow reasonable "industry standards", to put it briefly we expect to be "cured". However, the doctors and medical professionals are also humans and as Alexander Pope puts it, "To Err is Human". This is where the concept of "Negligence" comes in. It is "the failure to undertake a reasonable amount of care which is to be expected from a reasonable person".

"Medical Negligence" in the recent past has become one of the most serious concerns relating to negligence not only in Indian jurisdiction but also in international domains. A depositary duty is owed by the physician and/or medical practitioner to the patient and it is pertinent for them to disclose any and all requisite details and information such as the procedure of the surgery, the side effects of treatment, etc.

The case at hand, i.e., "Nizam Institute of Medical Science v. Prasanth S. Dhananka"[1] was decided in 2009 where the facts were majorly concerned with the substantial legal issue of medical negligence. The issues that arose before the court were whether the doctors were "negligent", whether the liability imposed on the doctors be dissolved if the consent of the patient is given and whether sufficient compensation was granted to the patient/complainant. The court in its judgement granted the "highest-ever awarded" compensation of 1 crore while considering the medical negligence cases and also set up precedent-setting guidelines that will be discussed in detail later in the project.

Legal Principles
Negligence is defined as "the omission to do something which a reasonable and prudent person would do or it is the commission of an act which the similar fellow would not do". "Medical Negligence" occurs when the medical professional's act falls below the accepted threshold of recognized "standard of care" during the medication of a certain patient.

When consulted by a particular doctor, the patient is owed certain "duties" such as a duty of care to take a call on the case, to decide the treatment and in the administration of the same and when the breach of any of these duties is observed, the right to take action for negligence is granted.[2]

In English Jurisprudence, the "Bolam's Test" laid down in "Bolam v. Friern Hospital Management Committee", states that "the standard of skill taken should be that of an ordinary skilled person in the profession who exercises that particular skill and the failure to do so will lead to an action in negligence. It's not necessary to exercise the skill of the highest degree, but reasonable skill is sufficient as accepted by a "responsible body" of professionals." This test has been repeatedly approved and referred to by the House of Lords and the Supreme Court.[3]

The encumbrance of proving the "claims" and the whole burden of making a case in on the complainant or the plaintiff.

The liability of the doctor can be civil or criminal.

Under section 42(11) of the new "Consumer Protection Act, 2019" the act of the practitioner concerning medical negligence will be considered a "deficiency". And under the same act, "medical services" falls under the scope of services under Section 2(42). This was rightly held in the landmark judgement of "Indian Medical Association v. V.P. Shantha".[4]

Similarly, criminal liability can also be imposed upon the defendant. Under several provisions of the "Indian Penal Code, 1860". If the death of a person or a "threat to life" is caused by the "negligent actions" of another person, then imprisonment or fine shall be imposed. Concerning criminal liability, the element of "mens rea" must be there.[5]

There can be different types of medical negligence. Misdiagnosis of a patient is one such type where the practitioner misidentifies the medical issue associated with the patient and gives a wrong treatment and diagnosis for the issue. Negligence also entails when there is questionable delay in the diagnosis of the problem or when reasonable "standard of care" is not exercised by the doctor while prescribing a long-term treatment of a chronic illness.

The most prevalent type of "Medical Negligence" is when there is error due to negligence in surgery which is expected to be "industry standards" and also when the surgeon is grossly negligent and performs a surgical operation that is completely unnecessary to the practicalities of the situation. More types generally include, negligence while administering anaesthesia, where there is negligence in extremely delicate matters such as pregnancy and childbirth, etc.[6]

Background
The case at hand referred to a handful of cases, the context of which has been explained briefly in the following paragraphs.

In a precedent-setting judgement of "Jacob Matthew v. the State of Punjab", the top court tried to answer the question of criminal and civil liability of medicine practitioners related to negligence. In this very judgement, the SC laid down certain "guidelines" for imposing liability on the medical practitioner in case of rash actions leading to damage to the patient. It was also rightfully observed in this case that the "only assurance" that a doctor can give to the patient is that he is adequately possessed of the skills required by their profession and also that it is quite impossible to guarantee a successful result".[7]

The bench in the case of "Samira Kohli v. Dr Prabha Manchanda", expanded on the concept of "consent" of the patients which is very essential to try to answer the fine distinction between "implied consent" and "expressed consent".[8] Implied consent concerns itself with the reasonability of the issue and a general appreciation of the circumstances, conversations and consequential situations related to the issue.

The Supreme Court in the case of "Achutrao Haribhau Khodwa v. State of Maharashtra" held that "the skill and knowledge of the medicine profession will be different for each doctor and it is quite possible that there may be differing medical opinions, but as long as the professional carry out their duties in an acceptable manner and the court finds that due "care and skill" have been exercised, then the doctor wouldn't be held liable."[9]

Facts Of The Case
The facts of the case "Nizam Institute of Medical Institute v. Prasanth S. Dhananka"[10] were straightforward. In 1990, Prasanth S. Dhananka (from now on referred to as the complainant), a 20-year-old engineering student identified some fever and then went to the appellant "Nizam Institute of Medical Science (NIMS)" for a checkup. The date was 9th of September.

There, he was examined by a chest and tuberculosis specialist and after taking an X-ray, a certain "innocent tumour" called Neurofibroma and some erosion of the nearby ribs was identified. The specialist recommended the "ultrasound-guided biopsy" for the tumour but after several attempts, the complainant was referred to Dr P.V. Satyanarayana, who was a "Cardio Thoracic Surgeon" for an excision biopsy of the tumour.

The admission of the complainant to the hospital occurred on the 19th of October and after 4 days the operation was performed and the tumour removed. It came to surface that the complainant suffered "acute paraplegia" which entailed a complete loss of lower limbs and several other impediments, which led to the complainant being discharged on 19th May 1991, with paralysis. The complainant's condition required constant medical attention from the nurses, plus physiotherapy due to an infection in the urinary tract and certain other complications such as bed sores, etc.

There was constant pressure to obtain of a detailed report from the parents of the complainant to NIMS but to no avail. After trying so many times and not receiving any reply, the complainant filed a complaint before "National Consumer Redressal Commission" (NCRC) on the 5th of April, 1993, where the allegations of medical negligence were levelled against P.V. Satyanarayana and imposing vicarious liability on NIMS and a statutory liability on Andhra Pradesh state.

The Arguments of both parties have been briefly explained below:
Arguments of the Complainant
It was alleged by Prasanth S. Dhananka that there had been negligence in the pre-operative stage as well as in the operative stage. There were also allegations that the postoperative complications weren't explicitly mentioned to the complainant, and that the consent was taken only for an "exploratory procedure" but complete excision and removal of a rib (4th one) had been carried out in the process of which several "inter-costal blood vessels" had also been "sacrificed" leading to the "paraplegia" of the patient. A presence of a Neurosurgeon was also quite essential because the "neurofibroma excision" also had various neurological implications. There was also post-operative negligence in care leading to pressure ulcers and severe pain.

Arguments of the Respondents
It was argued by the defendants that there had been absolutely no negligence, that the complaint was merely an "afterthought" and also that the provisions of the C.P.A couldn't be attracted. It was also stated by the defendants that the biopsy of the tumour was essential for the treatment and determination of the tumour since previous procedures (FNAC) weren't successful despite repeated attempts. It was thought fit by the doctors to remove the ribs and the tumour as it can turn malignant at a later stage.

It was also contended that the presence of a neurosurgeon was not required since the cardiothoracic surgeon was already present. It was also pleaded that there was no negligence in pre-operative as all the requisite medical tests had been performed sincerely and responsibly. And also, there was no breach of "duty of care" during the post-operative stage as considerable attention was given to the complainant by the respondent.

Judgements
Judgement of the Commission
Based on these broad facts, the judgement was concluded by the NCRC. In the Commission's order, which was dated 16th February 1999 it was concluded that negligence was there on part of the defendants in this case. During the pre-operative stage, the CT surgeon stated that he had known about the extension of the tumour into the vertebrae, this inherently accounted for the need for a neurosurgeon. And as the facts warrant it, the neurosurgeon wasn't consulted before the surgery or even during it.

There was negligence during the operation also, as previously mentioned, it was supposed to be "exploratory" and not an entire excision as it so happened. It was also noted by the commission that the operating surgeons left without meeting the parents of the complainant and without letting them know about the excision or the surgery, there was a serious impression that something had gone wrong otherwise they would've normally met the parents.

Based on these considerations, the mental agony of the family, the present and future expenses, damages to the family, and the shortening of life expectancy, the Commission ordered compensation of around 15.5 lakhs. It is pertinent to note that the commission rejected the claim of the complainant that no consent was given, it recognized the existence of "implied consent" by the parents.

Following this judgement, 2 appeals were filed both by the complainant and the respondent. One was the "Civil Appeal No.4119 of 1999" by NIMS which stood against the judgement of the commission and the respondent disowned any liability and argued that there was no existence of negligence on the part of doctors. Another one was the "Civil Appeal No. 3126 of 2000" by the complainant where the argument was that the complainant didn't feel the compensation enough to the situation that was dealt in the way it was by the respondents and considering the same, he asked for an enhancement in the compensation.

Judgement of the Supreme Court
The Top court upheld the judgement of the commission and closely checked the 3 issues i.e., that whether there was negligence in the diagnosis of the issue, surgical operation and also in post-operative procedures. The court found that the Dr Satyanarayana contended that the tumour's extension into the vertebral column was revealed only after the surgery, but in the discharge record there was a reference to a "mass lesion in the upper chest with ribs erosion".

This reference calls into question the doctor's statement and also that had a proper MRI test been conducted, the reveal of the extension of the tumour into the spinal cord would have been indeed a possibility. However, the argument of the doctor also finds some support from the bench but they gave more weightage to the complainant's contention. It is significant that implied consent had been there for the "excision biopsy" but not "informed consent" from the complainant for the "excision surgery".

There were two issues regarding consent which are relevant in this case. One was whether there needs to be "Informed consent" for the removal of the organs and also while considering the nature of the consent. Another was whether the consent that was given for "diagnostic surgery" can be interpreted as consent for additional surgical procedure that can either be justified as either "radical" or "conservative" procedure given the context of the medical issue.

The court held that regarding the biopsy of the tumour, the consent was more or less implied but regarding the excision and removal of the tumour cannot be implied from the aforesaid observations. Regarding the Surgical Operation itself, there was negligence present at that stage also as the discharge record showed that the neurofibroma was not only confined to the thorax but had extended beyond it into the "posterior medical column" where there was the presence of "inter-costal blood vessels", this pretty much justified and required the intervention of a neurologist or a neurosurgeon in the "pre-operative" as well as during the operation.

Also, the C.T scan showed a "lesion" in the thorax with erosion to the ribs. On the objective analysis of the facts, it is also revealed that had proper tests taken place, there was a huge possibility that the extension of the tumour to the spinal cord would have been caught. In the light of these facts and the reasoning of the bench, the attending doctors were held negligent and the NIMS was also adjudged vicariously liable. The SC confirmed the judgement and the findings of the commission.

The complainant had held his compensation claim at 4.61 crores before the commission but was then granted the total compensation amounting to around 15 lakhs. The court had to strike a middle ground and after extensively discussing and after careful consideration of all the facts the court granted a compensation of around "1 crore rupees" to the complainant.

Analysis Of The Judgement
The Supreme Court and the commission's judgements were seriously considerate of the facts and the arguments of both the complainant and the respondent. The judgement of the court was logically reached and the author agrees with the reasoning applied by the judges while giving out their judgement.

The judgement highlights were that the doctors were negligent in the different stages of the procedure and the surgical operation. There was no consultation of any neurologist or a neurosurgeon when the very nature of the tumour i.e., Neurofibroma warranted their "presence" due to its nerve-related implications. There was also a question of whether consent had been given for the surgical excision of the tumour or whether the implied consent was only reserved for the biopsy of the neurofibroma to understand its anatomy and the diagnosis.

The author also finds the compensation portion of the judgement by the Supreme Court much better than the one handed out by the commission. As already stated above, even though the complainant in his present condition was earning a sustainable living i.e., of 28 lakhs per annum, his work entailed a lot of moving around which caused a lot of mental and physical distress due to "paraplegia" to both the complainant and the family members.

And 15 lakhs as compensation for the suffering of the complainant seems implausible. The author finds the compensation as given by the Supreme Court a bit more rational and "1 crore" though neither will recover the previous condition of the patient nor will it be equal to the blood and tears lost, it is rational and seems fair to be granted concerning all the medical expenses, personal expenses, etc. It is difficult to satisfy all the parties but a balance must be struck.

The court also rightfully observed in this case that sympathy for the patient should not come in the way of correctly delivering judgement and rational intelligence must be the sole basis for assessment. The severely disabled person requires assistance and mental support every day and it takes a toll on close family members.

The feeling of anxiety and uncertainty while expending resources into litigation by the complainant and his family was rightfully taken note of by the bench. This case serves as one of the bench mark cases for the medical hospitals and practitioners to exercise serious care while dealing with medical issues, a few more tests like an MRI and consultation with a neurosurgeon would have probably saved Prasanth from the paralysis, embarrassment and distress. And NIMS on the other hand, would have saved 1 crore in compensation.

It was rightly cautioned by the court that caution must be exercised for that if every doctor was summoned for questioning and every frivolous claim was entertained then the medical profession would be left inefficacious and impotent, and this would eventually result as hindrance in the development of the society.

Conclusion
"Medical Negligence" is inherently an important concept in the "Law of Torts". The doctors must and should be held accountable for their rash and negligent actions while diagnosis and if required during the surgery as well as during the post-operative treatment. Doctors are only humans, and must not be put on a pedestal above all. But, due to their nature of the profession, even a small negligent action can be a matter of life or death.

As discussed above in the relevant case laws there can be different approaches to a particular medical problem and it depends on the experience and skills of different practitioners, however before giving out advice and treatment it is the duty of that particular medical professional to possess certain "standard skills" and to exercise a "duty of care" which may be considered reasonable and acceptable by the medical community.

The present case, "Nizam Institute of Medical Science v. Prasanth S. Dhananka" is important for the Indian jurisprudence in the sense that it tries to answer certain quintessential questions of "Informed consent" and "Implied consent" and also those of negligence related to the medical profession. The case is also important in the fact that it granted the highest ever compensation in the case of medical negligence and this in itself is quite rare and will surely help in the expansion of this right and reduction in the cases of "medical negligence" which in turn lead to development both in the field of study of law as well as in the medicine profession.

End-Notes:
  1. Nizam Institute of Medical Sciences v. Prasanth S. Dhananka, 2009 (6) SCC 1
  2. Ratanlal Ranchhoddas & Dhirajlal Keshavlal Thakore, The Law of Torts 514 (24th ed., Wadhwa and Company Nagpur 2002).
  3. Bolam v. Friern Hospital Management Committee, 1957 2 All ER 118.
  4. Indian Medical Association v. V.P. Shantha, 1995 SCC (6) 651.
  5. Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 1162.
  6. Richa Singh, Medical Negligence in India (Aug 3,2019), https://blog.ipleaders.in/medical-negligence-india/.
  7. Jacob Matthew v. State of Punjab, AIR 2005 SC 3180.
  8. Samira Kohli v. Dr. Prabha Manchanda, 2008 SCC (2) 1.
  9. Achutrao Haribhau Khodwa v. State of Maharashtra, 1996 SCC (2) 634.
  10. supra note 1.

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