Infection after Fracture Treatment: Delhi State commission absolves Doctor, hospital of negligence

New Delhi: Overturning the order of the lower forum that imposed a compensation of Rs 3 lakh on a hospital in a medical negligence case, the Delhi State Consumer forum, after going through the entire matter, absolved the treating doctor as well as the hospital of any medical negligence.

The case concerned a patient who had fallen down to the ground from his first floor residence on 26.08.2001 resulting in multiple injuries and fractures. No physical movement was possible. In these circumstances the complainant was brought to Susruta Trauma Centre where he was put on medication.

On the following day the complainant was brought to the Sant Parmanand hospital for treatment. At the hospital Dr. Maheshwari operated the patient by way of inserting molds and screws inside the injury spots.

The patient alleged that Dr. Maheshwari never cared to make any efforts to close the open wound, though necessarily required, after the guide wire was put around the proximal fractured site. The further allegation is that thick whitish discharge was coming, the fact which was reported to Dr. Maheshwari but no steps were taken to get over the problem. Owing to this the complainant has been subjected to permanent disability.

Alleging negligence, the patient appealed to District Forum. The District forum, holding the doctor and hospital negligent, directed compensation of Rs 3 lakh. Challenging the order, the hospital went to the State forum

The hospital stated District Forum has failed to appreciate the fact that the judgment awarding the compensation to the complainant holding OP hospital liable is based upon the opinion given by one Dr. Dureja and Dr. Goel. From the bare perusal of the reports of the above stated doctors, it becomes evident that none of these reports relied upon by the respondent anywhere states that the complications as alleged in the complaint is due to negligence on the part of the doctors of the OP hospital. Secondly, the forum could not appreciate that the treatment done to the patient was as per protocol. Thirdly, the allegation of the complainant regarding infection, caused due to wound is unsustainable since to keep it open was as per medical literature. Fourth no specific allegation regarding negligence has been levelled. Finally the Forum could not appreciate the well settled law that the deposition cannot be made by the person other than the complainant as laid down in various cases.

The court went through all the submissions of the patient as well as the hospital. The forum noted the opinion on the subject received from the Maulana Azad Medical College

At this stage it would be necessary to detail as to what constitutes negligence. The negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three; ‘duty’, ‘breach’ and ‘resulting damage’. Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from the one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice. What has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular when it was required to be used. A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. The test for determining medical negligence as laid down in Bolam’s case (1957) 2 ALL ER 118 (QBD) holds good in its applicability in India.

Applying the said test to current case the court noted