MEDICAL NEGLIGENCE

[Mr. M. GOVINDARAJAN]

Consumer Protection Act, 1986 has covered most of the services. Medical is not an exception to this. At the time of introduction of the Act there was a controversy whether medical services were to be included or not under the provisions of Consumer Protection Act, 1986. Supreme Court in 'V.P. Shanthi' case made the medical services to be included under the Consumer Protection Act.

In case of medical negligence, detailed enquiry is required to be made. But the provisions of Consumer Protection Act provide only for summary trial. In such a case the cases relating to medical negligence could not be enquired in detail under the Consumer Protection Act. After the decision of Supreme Court the National Commission and State Commissions sought for the expert opinion before deciding the case of medical negligence. In 'Jacob Mathew' case the Supreme Court held that-

Whenever a private complaint is received by a Police Officer, first it had to be referred to a doctor or committee of doctors in government service relating to the specially concerned and if a prima facie case is made out then only the complaint shall be registered;

A doctor may not be arrested as a routine in cases relating to medical treatment.

In the case 'Mortin D' Souza' case the Supreme Court gave relief to doctors. Every consumer complaint, the Supreme Court held,  received by the Consumer Forum, the Forum has to first refer the complaint to committee of doctors for expert opinion and if a prima facie case is made out then only notice be sent to respondent doctors.

But in the case 'Kishan Rao V. Nikil Specialty Hospitals Limited' the Supreme Court held that the consumer forum is no longer required to refer the complaint to committee of doctors compulsorily before sending notice to the respondent doctors. The case can be taken straight away on file. The Supreme Court is of the view that the negligence of the doctor would be presumed from the start and it is the duty and responsibility of the doctor to prove his innocence.

In this article on case law is discussed regarding the medical negligence. In 'Reena Bhattacharya V. Narayan Chowdhary and others' - SC No. 15/2003 decided on 05.09.2008 (as reported in 'Medilaw Cheran News' July 2010 issue) by West Bengal State Commission, the complainant was suffering from post-menopausal bleeding for which she consulted Dr. Narayan Chowdhary, who after conducting certain pathological tests and X-ray advised the patient to undergo D&C operation at the Belle Vue Clinic, Kolkatta and the same was done. After the operation the tissues were sent to the laboratory for diagnostic tests. The laboratory could not make any report since there were insufficient tissues. The said doctor advised the complainant for total abdominal hysterectomy and it was done on the same day without conducting any further D&C.

She was discharged after inserting Foley's Catheter and was advised to keep it for one month. At the end of the first week after operation the complainant noticed that urine started to leak frequently and gradually the same became continuous instead of occasional leaking. Therefore she was referred to Dr. S.D. Mukherjee, Urologist for undergoing cystoscopy with dyetest. On 4.5.2001 IVU test with Indwelling Catheter was done. She was advised by this doctor to continue with the Catheter for three weeks with the expectation of natural healing. But after expiry of the said period when the catheter was removed the problem of dribbling of urine started again. After the second dyetest was done by this doctor a small fistula was detected but that could not be repaired by this doctor. However this problem of dribbling of urine continued. The case was referred to the third doctor Dr. B.N. Chakraborty.

The third doctor conducted dyetest and detected fistula at the right corner of the vault of vagina. The complainant contended that-

She came to know about the existence of fistula for the first time after such detection by the third doctor;

She had also come to know that her bladder had suffered multiple injuries during hysterectomy;

They referred her to the third doctor though they were fully aware of Vasico Vaginal Fistula and allegedly just to shift their responsibility to the third doctor;

The third doctor made transvaginal repair of V.V.F. at the Institute of Reproductive Medicine at Salt Lake, for which she had to be admitted there for about 14 days. But in spite of repair of VVG dribbling of urine did not stop and it continued day and night. This doctor again conducted the dye test after which leakage of urine from vagina was detected. On 11.10.2001 transvaginal repair of VVF was again done by the third doctor for the second time and complainant was hospitalized for about 13 days and a small fistula at the left corner vault of the vaginal bladder was repaired in two layers and vaginal wall had also to be repaired. In spite of all these the dribbling of urine did not stop completely.

The complainant then left for Apollo Hospital at Hyderabad where repaid of VVF was again done by Dr. V. Rajagopal and she was discharged after 12 days, but she was at Hyderabad for 33 days for regular consultation with the said doctor.

In the expert evidence Dr. Ghosh opined that-

§         While it is quite appropriate that the problem of urinary incontinence should be referred to an Urologist, the first doctor took undue time of one month to refer the case to the second doctor when the complainant had been experiencing the problem almost immediately i.e., one wee after the operation;

§         From the test report and treatment by the third doctor it was evident that the first doctor has caused several damages to the bladder of the patient during carrying out hysterectomy;

§         These injuries developed into several Vescico Vaginal Fistulae (VVF) causing incontinence of urine as happens usually;

§         Such formation of VVF during hysterectomy is not unknown in medical science but it is very rare and that too with a very senior and experience gynecologist.

The Commission relied on the decision of National Commission in an identical case in 'Smt. Saroj Chandhoke V. Sir Ganga Ram Hospital & another' held that if during the operation any mishap occurs because of error of judgment, it would be deficiency in service or negligence, if that would not have been committed by a reasonably competent professional man professing the standard and type of skill that a surgeon held out as having. The National Commission further observed that it was the duty of the doctor to advise the patient that D&C should be performed reasonably well in advance of performing the operation of hysterectomy. For finding out deficiency in service, motive is not relevant ingredient. Act may be bona fide. But if it is performed negligently or if any error is committed which the ordinary skilled person would not commit, then it is deficiency in service.

The State Commission held that in spite of suggesting a vital test like D&C, the doctor ultimately performed the hysterectomy on the complainant without obtaining D&C report which is a pre requisite for the purpose of undertaking such operation. It has also been established by the treatment sheet and investigation of the third doctor that the bladder of the patient suffered multiple injuries as a result of which urinary incontinence and fistulae were created causing enormous sufferings to the complainant. Had be obtained the detailed picture of the entire endometrium of the complainant prior to taking up the hysterectomy, he would perhaps taken some more precautions before undertaking such operation and the patient would not have undergone such suffering.  Hence it can be said that it is a case of sheer negligence on the part of the first doctor which caused the suffering to the complainant.

To deal with such complicated cases suggestions have already been made that one doctor as a member of consumer commission may be appointed. In some State Commissions Doctors are appointed.  However the doctors shall be careful of the following:

No late referrals at no life situations;

Proper documents for each patient;

Informed consent.