Medical Negligence Versus Gross Negligence: NCDRC pulls up state commission for dismissing plea

New Delhi: Holding that there is a difference between negligence and gross negligence and the fact that a state commission while hearing a medical negligence case cannot solely pass the matter to the expert board, the National Consumer Disputes Redressal commission recently pulled up Punjab State Commission for dismissing the matter in Limime (at the state of the hearing only) and asked then to hear the matter afresh.

The case relates to a minor patient, who was treated in 2014 in Dhawan Surgicare and Multi-Specialty Hospital by two doctors and later in Christian Medical College (CMC), Ludhiana for a fracture in the left arm. However, soon after, development of gangrene was witnessed resulting in the amputation of the left arm below the elbow of the minor.

Thereafter, the minor's parent moved an instant appeal with State Commission alleging medical negligence by the Dhawan Surgicare and Multi-Specialty Hospital and the doctors that left the minor permanently disabled, and in need of continuous further treatment. No allegations were made against the CMC

In this regard, the State Commission called for a report by the expert body of doctors from Postgraduate Institute of Medical Education & Research, Chandigarh (PGI Chandigarh) to ascertain if there was any medical negligence in here.

In 2016, the expert committee comprising of three members did not find any gross  medical negligence and submitted its report that stated;

“Based on these findings the committee does not find any gross negligence of treating primary Orthopaedic Surgeon form Dhawan Surgicare and Multispecialty Hospital”.

Upholding the expert opinion, the Punjab Commission did not admit medical negligence.

Following this, the matter was brought before the NCDRC through an appeal. After careful examination and going by facts and reports of the case, the Commission took strict cognizance of the State Commission's verdict and held;

In the instant case, the State Commission did not admit the Complaint, did not issue notice to the Opposite Parties, did not direct the Opposite Parties to file their Written Versions, when, on the face of it, clear allegations of negligence and deficiency were well and truly evident in the Complaint. It, but, rather referred the matter to PGI Chandigarh to seek “report of expert body of doctors”.

NCDRC reprimanded the State Commission, mentioning that it should have admitted the complaint and issued a notice to the hospital and the doctors to file their Written Versions under Section 13(1)(a) of the Consumer Protection Act, 1986

The NCSRC went on adding that the State Commission should have made its appraisal and passed a reasoned order on merit while noting;

The State Commission should, then, have proceeded to adjudicate the ‘consumer dispute’ on merit, in the normal wont, observing the principles of natural justice, affording opportunity to the Complainant to file his rejoinder to the Written Versions of the Opposite Parties, affording opportunity to both sides to file their Evidence, affording opportunity to both sides to file their briefs of written arguments in accordance with Regulation 13 of The Consumer Protection Regulations, 2005, affording opportunity to both sides to profess their arguments.

Significantly, the Commission also scrutinized the term "gross" as mentioned by the expert committee in its report stating;

Here we may note that the word “gross” in the phrase “any gross negligence”, as contained in PGI’s report dated 14.09.2016, is significant. Prima facie, if no medical negligence was made out, “gross” should ordinarily not have been included in its opinion.

The commission found the State Commission's reasoning erroneous stating that it can not and should not take recourse to its lack of expertise and blindly rely on an expert report. It has to understand the matter in its entirety including the contents of an expert report called for by it, examine and appraise the matter holistically, and arrive at its reasoned findings with the due application of mind. Empowering the state commission, NCDRC pointed out that nothing prevented the State Commission from calling the committee members (doctors) before it, for the members to explain the contents of their report.

The NCDRC also took a strong note of the fact that it was the PGI committee that examined the patient's mother and not the state commission.

In the instant case we note elements of ‘proceedings’ being conducted by the committee of PGI, which should ordinarily have been conducted by the State Commission. In other words, the State Commission abrogated its jurisdiction, and, for a protracted period, the committee of PGI, in making its report, exercised elements of proceedings falling in the jurisdiction of the State Commission. The committee transgressed its role and ambit of making its opinion on an objective appraisal of the medical record and material placed before it.

"This is not how a Complaint containing clear allegations of medical negligence / deficiency in service should be dealt with," NCDRC noted

"No Consumer Protection Forum can express its lack of expertise and blindly rely on an expert report without understanding the matter in its entirety including the contents of an expert report called for by it and dismiss the complaint."

Subsequently, the Commission while setting aside the order by the State Commission held;

In the light of the above discussion, we have no hesitation in allowing the appeal and setting aside the impugned Order dated 07.11.2016 of the State Commission with the directions that the State Commission shall admit the Complaint, issue notice to the Opposite Parties and proceed with the adjudication of the case on merit.