In a recent case (Nizam
Institute of Medical Sciences v. Prashanth S.
Dhananka - Civil Appeal Nos. 4119 of 1999
and 3126 of 2000, decided on 14 May 2009), the
Supreme Court while dealing with a medical
malpractice case arising out of an operation for
removal of a tumor held that the institute and the
doctors concerned were guilty of negligence and
awarded a compensation of Rs. 1,00,00,000/- with
interest @ 6 % from 1 March 1999 to the date of
payment to the complainant.
As per the judgment, there were serious lapses
on the part of the institution and the attending
doctors in inter alia not obtaining written
consent of the patient for performing the
surgery, maintenance of the requisite record of
the patient and its timely production in Court,
erroneous diagnosis, non involvement of the
required specialist surgeon during the
operation, lack of necessary pre-operative
investigations and negligence at the time of the
operation. These factors were taken into
consideration by the Supreme Court while
adjudicating upon the issues raised.
The complainant in the said matter before the
Supreme Court of India was an engineering
student, who underwent an excision biopsy for
the removal of a tumor. On completion of the
biopsy it was found that the complainant
developed acute paraplegia with a complete loss
of control over his lower limbs.
A complaint was filed before the National
Consumer Redressal Commission by the complainant
alleging utter and complete negligence on the
part of the doctor and the State of Andhra
Pradesh was alleged to be statutorily liable for
the negligence of the concerned doctors.
The complainant alleged negligence of the
concerned doctors in the three stages of the
surgery, that is, pre-operative tests, during
the operation and post-operative treatment. It
was held by the Commission that there was
negligence and deficiency of service on the part
of the doctor in the different stages of the
case. Two appeals were preferred by the parties
before the Supreme Court against the order of
the Commission. The complainant preferred an
appeal claiming that the amount of compensation
was not enough and an appeal was preferred by
the defendants against the order disowning any
liability that has been accrued to them.
The Supreme Court considered the question of
negligence by the doctors in the three stages of
the case, pre-operative tests, the operation and
post-operative treatment. The Court
relied on Samira Kohli v. Dr. Prabha Manchanda
(supra) and held that with regard to the first
stage of the treatment, consent given by the
complainant for the biopsy cannot be considered
to be an implied consent for a surgery.
The Apex Court relied on the principles of
medical negligence as laid down in Jacob
Mathew v. State of Punjab (supra) and
reiterated in State of Punjab v. Shiv Ram
(supra). The Court maintained that the service
rendered by medical practitioners falls under
the definition of service under Section 2(1)(o)
of the Consumer Protection Act, 1986 as per the
judgment in Indian Medical Association v.
V.P. Shantha (supra).The Court upheld the
findings of the commission with respect to the
negligence of the doctors and held that it was
on account of the conduct of the operation that
the paraplegia set in. Though the Court held
that the enhanced amount of compensation claimed
by the complainant is unjustified, hypothetical
and therefore declined the same, it nevertheless
enhanced the compensation awarded to the
complainant by the National Consumer Disputes
Redressal Forum. |
