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TMI Blog2019 (1) TMI 1992X X X X Extracts X X X X X X X X Extracts X X X X ..... t, Madhu Manglik, was about 56 years of age, when on 14 November, 2009, she was diagnosed with dengue fever. The report of the pathological laboratory, Glaze Pathology, reported the following state of health: RBC- 4.21 Million/cmm Hb-12,1 gm/d/TLC-1900/Cmm Platelet Count 1.79 lakh/cmm Dengue Ns 1 Antigen-Positive The patient was admitted to Chirayu Health & Medicare hospital at Bhopal at about 7 am on 15 November 2009. She was immediately admitted to the Intensive Care Unit. Though she was afebrile, she reported accompanying signs of dengue fever including headache, body ache and a general sense of restlessness. The patient had a prior medical history which included catheter ablation and paroxysmal supra ventricular tachycardia suggestive of cardiac complications. 5. Upon admission at about 7.30 am, basic investigations were carried out. The blood report, together with the accompanying clinical examination indicated the following position: Hb 13.4 TLC 3000/Cumm, Platelet count 97000/cumim, PS for MP no malarial parasite se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal Dr Ajay Goenka (Respondent No. 2) and Dr Abhay Tyagi. The Ethics Committee observed thus: ...After perusing the statements given by both the parties and documents on record in the case, the Ethics Committee discussed the matter in detailed and noted that the patient admitted in Chirayu Health & Medicare Pvt. Ltd., Malipura, Bhopal on the advice of Dr. A. Goenka but he never visited in hospital to see the patient. The committee further noted that treatment administered to the deceased in the hospital was correct as per the medical guidelines but not given timely. Although, Dr. Goenka did not went (sic) to hospital to see the patient as the patient admitted there as per his assurance and advice, therefore, the Ethics committee prima facie found that there is a professional misconduct on the part of both the doctors and decided to issue a warning to Dr. A. Goenka and Dr. Abhay Tyagi with the directions to be more careful in future while treating such type of patients/cases. 12. This recommendation was accepted by the Executive Committee of the Medical Council. The appellate order of the Medical Council was communicated on 15 July 2015. 13. The Appellant insti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doctors precluded themselves from receiving information in regard to the status or progression of the disease; (x) The findings of the SCDRC were reversed by the NCDRC without any basis or justification; (xi) NCDRC has found fault with the patient's family for the administration of aspirin in the day preceding her admission to the hospital; (xii) The fact that she was administered aspirin was disclosed to the treating doctors at the time of admission, which is satisfactorily established by the medical records of the case; (xiii) NCDRC, in the first appeal, has displaced the findings of fact which have been arrived at by the SCDRC without any basis in the evidence on record; and (xiv) On the question of compensation, the Appellant had also instituted a first appeal before the NCDRC since the award of compensation was inadequate. On the material which was placed on the record before the original authority, it is necessary for this Court to allow the appeal and to suitably enhance the amount of compensation. 17. On the other hand, learned Counsel appearing on behalf of the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount had recorded a precipitous decline from 1,79,000 to 97,000. This undoubtedly, as the hospital urges in the present case, is a consequence of dengue. The patient had tested positive in the Dengue Antigen test. At 7.30 am, on 15 January 2009, her Hemoglobin was reported to be 13.4. The patient was thereafter placed on a treatment protocol involving the administration of intravenous fluids. 21. The condition of the patient was serious enough to require her admission to the Intensive Care Unit of the hospital. The hospital has justified the administration of about 1200 ml of fluid between 7 am and 6 pm when she developed bradycardia and cardiac arrest. 22. The real bone of contention in the present case is not the decision which was taken by the doctors to place the patient on a regime of intravenous fluids which, for the purposes of the present appeals, the Court ought to proceed as being on the basis of an established protocol. 23. The essential aspect of the case, which bears out the charge of medical negligence, is that between 7.30 am when the patient was admitted to hospital and 6 pm when she developed cardiac arrest, the course of treatment which has been disclosed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or its management more complicated (such as pregnancy, infancy, old age, obesity, diabetes mellitus, renal failure, chronic haemolytic diseases), and those with certain social circumstances (such as living alone, or living far from a health facility without reliable means of transport). If the patient has dengue with warning signs, the action plan should be as follows: * Obtain a reference haematocrit before fluid therapy. Give only isotonic solutions such as 0.9% saline, Ringer's lactate, or Hartmann's solution. Start with 5-7 ml/kg/hour for 1-2 hours, then reduce to 3-5 ml/kg/hr for 2-4 hours, and then reduce to 2-3 ml/kg/hr or less according to the clinical response (Textboxes H, J and K). * Reassess the clinical status and repeat the haematocrit. If the haematocrit remains the same or rises only minimally, continue with the same rate (2-3 ml/kg/hr) for another 2-4 hours. If the vital signs are worsening and haematocrit is rising rapidly, increase the rate to 5-10 ml/kg/hour for 1-2 hours. Reassess the clinical status, repeat the haematocrit and review fluid infusion rates accordingly. * Give the minimum intravenous fluid volume required to maintain good perfusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - laboratory evidence of thrombocytopenia/coagulopathy, rising Hct, metabolic - acidosis, derangement of liver/kidney function tests. 27. The patient had a prior medical history which included catheter ablation and paroxysmal supra ventricular tachycardia suggestive of cardiac complications and thus fell in the group of patients that require in-hospital management (Group B) under WHO guidelines. The patient was evidently suffering from abdominal discomfort and hospital authorities were required to closely monitor her condition. In failing to do so in a timely manner, the Respondents were unable to meet the standard of reasonable care expected of medical services. 28. The issue is not whether the patient had already entered a situation involving haemorrhagic fever or a dengue shock syndrome when she was admitted on the morning of 15 November 2009. The real charge of medical negligence stems from the failure of the hospital to regularly monitor the blood parameters of the patient during the course of the day. Had this been done, there can be no manner of doubt that the hospital would have been alive to a situation that there was a decline prog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions in law which have been put before you by counsel. Mr. Fox-Andrews put it in this way, that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent. Mr. Fox-Andrews also was quite right, in my judgment, in saying that a mere personal belief that a particular technique is best is no defence unless that belief is based on reasonable grounds. Bolam clarified that the standard imposes a duty on medical professionals to ensure that obsolete methods are not employed: ...At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. 31. A three judge Bench of this Court in Dr Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole AIR 1969 SC 128 stipulated that the standard to be applied by a medical practit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me on which it is suggested as should have been used. 33. In Indian Medical Association v. V. P Shantha (1995) 6 SCC 651, a three judge Bench of this Court made the following observations: Immunity from suit was enjoyed by certain professions on the grounds of public interest. The trend is towards narrowing of such immunity and it is no longer available to architects in respect of certificates negligently given and to mutual valuers. Earlier, barristers were enjoying complete immunity but now even for them the field is limited to work done in court and to a small category of pre-trial work which is directly related to what transpires in court...Medical practitioners do not enjoy any immunity and they can be sued in contract or tort on the ground that they have failed to exercise reasonable skill and care. 34. A three judge Bench of this Court in State of Punjab v. Shiv Ram (2005) 7 SCC 1 and in Nizam's Institute of Medical Sciences v. Prasanth S Dhananka (2009) 6 SCC 1 affirmed the judgment in Jacob Matthew. 35. A two judge Bench of this Court in Kusum Sharma (supra) laid down guidelines to govern cases of medical negligence. Justice Dalveer Bhandari, spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtaining to the standard of care. In Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 Lord Scarman held thus: A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that there was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. 38. In Hucks v. Cole, (1968) 118 New LJ 469 the Court of Appeal found the Defendant guilty of medical negligence. Sachs LJ held thus: Where the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then however small the risk the courts must anxiously examine that lacuna, particularly if the risk can be easily and inexpensively avoided. If the court finds on an analysis of the reasons given for not taking those precautions that in the light of current professional knowledge there is no proper basis for the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -047 at p. 200 in Professional Negligence) that there is an argument to the effect that Bolam test is inconsistent with the right to life unless the domestic courts construe that the requirement to take reasonable care is equivalent with the requirement of making adequate provision for medical care. In the context of such jurisprudential thinking in England, time has come for this Court also to reconsider the parameters set down in Bolam test as a guide to decide cases on medical negligence and specially in view of Article 21 of our Constitution which encompasses within its guarantee, a right to medical treatment and medical care. 41. Our law must take into account advances in medical science and ensure that a patient-centric approach is adopted. The standard of care as enunciated in the Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts. Significantly, the standard adopted by the three-judge bench of this Court in Jacob Matthew includes the requirement that the course adopted by the medical professional be consistent with "general and approved practice" and we are bound by this decision. 42. In adopting a standard of care, Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a blood test, as is urged by the Respondents, is merely a conjecture. Since no test was done, such an explanation cannot be accepted. 45. The NCDRC had before it a well-considered judgment of the SCDRC based on the evidence on the record. While the jurisdiction of an adjudicatory authority in a first appeal is co-extensive with that of the original authority, the NCDRC has displaced the findings of fact which have been arrived at by the SCDRC without any cogent reasoning. 46. The appellate authority has placed a considerable degree of reliance on the fact that the patient was on aspirin. This circumstance was drawn to the attention of the treating doctors at the time of admission. The NCDRC has merely observed that once she was admitted to the hospital, the patient was given medicines. This, in our view, is an insufficient basis to displace the findings of fact and conclusions recorded by the SCDRC. 47. For the above reasons, we are of the view that the judgment of the NCDRC is unsustainable. There was no basis or justification to reverse the finding of medical negligence which was arrived at by the SCDRC. 48. However, in our view, there is no basis for recording a finding of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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