After 25 years long battle: Hospital, doctor finally get relief from medical negligence charges

However, noting that the matter was 25 years old, the NCDRC bench held that it would be inappropriate to consider any remand of the case for re-appreciation of the evidence, and it also observed that "In the peculiar circumstances of the case where the Hospital failed to contest the matter before the State Commission and did not file the treatment documents before it, the complainant deserves to be adequately compensated with an additional sum suited to the background of this case."

Accordingly, the Apex Consumer Court modified the amount awarded by the State Commission and set aside the compensation of Rs 12,92,035 that was awarded alongwith 9% interest from the date of the complaint till actual payment. It substituted the compensation amount by providing that the complainant, the deceased's mother, would be entitled to receive a sum of Rs.5,00,000/- as a lumpsum amount in addition to the entire amount which has already been deposited before NCDRC together with the interest accrued on it.

"The balance amount which lies in deposit before this Commission shall be released to *** together with all the interest accrued thereon within 15 days. An amount of Rs.5,00,000/- is awarded over and above the said amount that shall be paid by the appellant Hospital to *** within a period of one month from today," it ordered.

Earlier, the Apex Consumer Court had stayed the operation of the State Commission's order, subject to the deposit of 50% of the awarded amount, i.e. Rs. 12,92,035.

The history of the case goes back to 2000, when the patient, after receiving cut injuries in his thighs and face, was initially treated by the emergency Medical Officer at the Government Joint Hospital, Mirzapur. Thereafter, he was referred to the Heritage Hospital at Varanasi, where Dr. Tapadar and other doctors treated him for a cut lacerated injury in the left thigh and some injury on his face.

According to the complaint, there was a lapse of almost 4.5 hours between the accident and the patient reaching the Hospital, by which time, the patient had lost a lot of blood. The complainants alleged that after the surgery was performed, the patient collapsed. Accordingly, they filed a complaint before the State Consumer Court alleging medical negligence.

Even though the State Commission exonerated the Emergency Medical Officer and the institute, it proceeded to assess the allegations of negligence against the treating hospital and doctor. Believing the averments made in the complaint and in the absence of any version on the part of the Hospital and Dr. Tappadar, the State Commission found that there was an omission on the part of the Hospital and the doctor in not furnishing necessary information regarding the treatment, surgery and medicines and therefore they were guilty of medical negligence. The complaint was accordingly allowed for a sum of Rs. 12,92,035/- plus litigation cost of Rs. 10,000/- as against the hospital and Dr. Tapadar.

Challenging the State Commission's order, the hospital and treating doctor approached the Apex Consumer Court. NCDRC on 13th March, 2008 passed an interim order and stayed the operation of the State Commission's order, subject to the deposit of 50% of the awarded amount. Later, based on the complainant's request, a total of Rs 3 lakh, out of the deposited amount, was released in favour of the complainant.

After perusing the State Commission's order and considering the arguments on behalf of the hospital and doctor, the NCDRC bench held that the State Commission's order proceeded to record its conclusions on medical negligence without putting to test the evidence that was filed by the complainant in order to arrive at a finding against the doctor and the hospital for medical negligence on the basis of the parameters laid down in Bolam's test as indicated in the judgment of the Apex Court in the case of Jacob Mathew v. State of Punjab.

The counsel for the hospital and doctor argued that the conclusion about the medical negligence against the hospital and the doctor was not based on any cogent material. Further, relying on the records of the hospital which were allowed to be produced during the appeal before NCDRC, the counsel argued that all possible steps were taken to secure the interest of the deceased and to treat him to the best of the abilities and skills possessed by the doctors, who were attending on him. He submitted that the Anaesthetist was present during the surgery and attended the patient when he had a cardiac arrest, the cardiac arrest was controlled and the patient revived and therefore, the complainant's allegation that there was no cardiologist present for treatment was without any basis. He further pointed out that the treatment chart indicated the presence of Dr. Rai, Chest Specialist, which was also recorded in the progress sheets.

Besides, the counsel also referred to the note sheets to urge that all symptoms were being diagnosed and all appropriate tests were carried out, including the ECG of the deceased and a copy of the ECG chart had also been placed on record along with the additional documents. It was submitted that immediately upon the patient's arrival, blood was transfused and the surgery was carried out. The complainants had given their consent for surgery through the deceased's uncle, and there was no deficiency alleged in the surgery, which was carried out to rectify the injury. He also submitted that the blood loss was very heavy and this resulted in the medical deterioration of the decease,d who ultimately could not sustain himself in spite of all best efforts made to treat him. It was also contended that no element of any negligence in diagnosis or treatment was alleged except for alleging post-operative negligence.

It was submitted that the allegation regarding the post-operative management of the patient was met with the filing of the complete set of treatment documents of the hospital which are on record and therefore the allegations of negligence are unfounded.

"Having considered the aforesaid submissions and having perused the record, at the outset we may point out that this Commission has practically permitted the filing of the hospital records before this Commission in order to arrive at a just conclusion. We therefore approve of the said steps taken at the interim stage and the documents filed by the Hospital are accepted on record," NCDRC noted at this outset.

Regarding the treatment procedure, it observed, "...once the doctors, including the Surgeon and the Anaesthetist were attending on the patient and had revived the patient from the cardiac arrest, the question of any absence of a Cardiologist does not in any way on the facts of the present case amount to an act of medical negligence. In spite of all care and medical attendance, as is evident from the Nurses and Doctors progress sheets, the patient appears to have not responded favourably."

Meanwhile, the counsel for the hospital urged that looking to the background of the case and the status of the complainant, who is a widow and had lost her son, even though the hospital does not admit of any negligence, yet the hospital is prepared to forego the amount already deposited by them before NCDRC including the amount which has already been released to the respondent/complainant.

Taking note of this, the Apex Consumer Court observed,

"Having considered the submissions raised and the fact that it is a 25 year old matter it would not be appropriate to consider any remand of the case for re-appreciation of the evidence which has been brought on record before this Commission in this appeal. We have therefore assessed the same and have recorded the findings hereinabove. The fact remains that the finding of the State Commission about medical negligence has been arrived at without adverting to the tests that have been laid down by the Apex Court in the case of Jacob Mathew (supra). The State Commission seems to have been influenced by the fact that since the doctor and the hospital had failed to take care to file a reply before the State Commission and furnish appropriate documents they were guilty of medical negligence which has been presumed on the basis of the allegations made in the complaint. This could not be an approach in a case of medical negligence inasmuch as the findings of medical negligence have to be based on any lack of due care in diagnosis and treatment as well as care to be taken including post-operative care. Allegations made in a complaint have to be considered but they cannot be accepted as an exact truthful version to construe medical negligence. As indicated above, the documents that have now been brought on record do indicate the treatment procedure in detail on all three days but we agree with the State Commission that the appellants ought to have filed such documents before the State Commission which they failed to do in spite of having engaged counsel who did not appear before the State Commission. This by itself also amounts to negligence and therefore the State Commission was left with no option except to draw an inference even though medical negligence could not have been presumed on account of such default."

"Thus, on an overall view of the matter we find that the respondent/complainant has been compensated by directing the release of the amount that was deposited before this Commission. Mr. Banerjee, learned counsel for the appellant in FA/56/2008 has also conceded to this position that the amount already deposited including the amount which has already been released by this Commission deserves to be released to the respondent/complainant," it noted.

Accordingly, the consumer court exonerated the hospital and doctor. However, it ordered to release the entire amount deposited before Apex Consumer Court and also granted Rs 5 lakh lumpsum compensation to the complainant for the failure of the hospital to properly contest the matter before the State Commission.

"We accordingly dispose of appeal No.56/2008 by observing that the finding against the hospital and the doctor regarding medical negligence cannot be sustained for the reasons given hereinabove, but at the same time we find it appropriate, in view of what has been submitted before us, to release the entire amount deposited before this Commission to the respondent/complainant... We therefore further modify the amount awarded by the State Commission and set aside the compensation of Rs. 12,92,035/- that has been awarded alongwith 9% interest from the date of the complaint till actual payment and substitute it by providing that the respondent/complainant would be entitled to receive a sum of Rs.5,00,000/- as a lumpsum amount in addition to the entire amount which has already been deposited before this Commission together with the interest accrued thereon. The balance amount which lies in deposit before this Commission shall be released to together with all the interest accrued thereon within 15 days. An amount of Rs.5,00,000/- is awarded over and above the said amount that shall be paid by the appellant Heritage Hospital to within a period of one month from today," ordered the Commission.

https://medicaldialogues.in/pdf_upload/ncdrc-reduces-compensation-amount-303785.pdf

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