How to determine Hospitals Liability in case of Medical Negligence?
Hospital's Liability in case of Medical Negligence !!
In Medical Negligence cases, the question always arises as to what is the liability of the Hospital vis-a-vis Doctors. Lets try to learn in short about the captioned subject in view of the recent judgment of National Commission in the case of Dr. Krishna Mohan Bhattacharjee V/s. bombay Hospital & research Centre (Consumer Case No.221/2000)
The liability of the Hospital is either Direct or Indirect... Failure on part of Hospital in providing safe, secure and suitable environment for treatment as agreed comes in the realm of Direct Liability.
Indirect or Vicarious Liability is based on the principle of latin phrase "qui facit per alium facit per se" meaning thereby one who acts through another, acts in his or her own interests.
The deceased wife of the Patient was initially admitted in the AMRI Hospital Kolkatta where she was diagnosed as brain tumor in right frontoparietal region (meningioma) and for better treatment, she was advised to go to Bombay Hospital. There under the treatment of well known Neurosurgeon late Dr. S.N. Bhagwati, (who died during the pendency of the Case) the deceased was admitted. It was alleged by the Complainant that since Dr. Bhagwati was scheduled to go to Dubai, Doctor insisted for operation on 04/04/1998, Saturday. But being the Saturday, the complainant refused and the operation was fixed on 05/04/1998 and without performing any pre operation Tests like CT, BT, without having sufficient units of blood, the Dr. hurriedly performed three consecutive surgeries upon the patient, one after another, for removal of meningioma, but the patient became comatose after surgery and was put on ventilator. Ultimately, she died, on 9.5.1998 and hence the Complaint demanded compensation for Rs.25 lacks !!!!
The allegations were denied by the Opponent Hospital and Doctors. The hospital submitted it had provided the best of its infrastructure, qualified staff and facilities to the patient. The Doctor contended the case was complicated one and all the necessary tests were performed.
In the instant case the question before the Commission as to whether there the Opponent Doctor and the Hospital failed in Pre-Operative Workup of the Patient or there were lapses in Post-operative care ?.The Commission while rejecting the plea of the Complainant of Post-operative care lapses, it observed that, "The case being a complicated one further complications occurred during treatment, which to the best of doctors and surgeons, cannot be predicted or pre-determined, thus the doctor cannot be held negligent. There is nothing like absolute precision or guarantee cure, because every doctor and surgeon, using his best possible skill, takes utmost care" The Allegation that the Doctor was in hurry in going to dubai were also turned to be false on evidence and it was also observed that the patient suppressed the earlier medical History . It was also proved that there was sufficient amount of Blood units kept ready and patient’s follow up was maintained in ICU by proper medication and higher antibiotics !
However the Commission observed that the opponents failed to perform “Preoperative Workup of the patient”, and Why the blood tests to rule out bleeding tendencies in the patient were not conducted in a planned Neuro surgery for Meningioma. It was admitted by Dr. Bhagati that no CT/BT test were performed and the Commission observed that one of the reputed Hospital in the Country has not followed Standard Operating Protocols in this case, hence, it was ‘Hospital Negligence’ and also to some extent, a ‘professional negligence.
It also observed that hospital authorities are not only responsible for their nursing and other staff, doctors, etc. but also for the Anesthetists and Surgeons, who practice independently, but admit/ operate a case. It does not matter whether they are permanent or temporary, resident or visiting consultants, whole or part time. The hospital authorities are usually held liable for the negligence occurring at the level of any of such personnel. Where an operation is being performed in a hospital by a consultant surgeon who was not in employment of the hospital and negligence occurred, it has been held that it was the hospital that was offering medical services. The terms under which the defendant hospital employs the doctors and surgeons are between them but because of this, it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. The patients go and get themselves admitted in the hospital relying on the hospital to provide them the medical service for which they pay the necessary fee. It is expected from the hospital, to provide such medical service and in case where there is deficiency of service or in cases like this, where the operation has been done negligently, without bestowing normal care and caution, the hospital also must be held liable and it cannot be allowed to escape from the liability due to reason of non-existing of master-servant relationship between the hospital and the surgeon.
Therefore, it directed the Hospital to pay Rs.10 laks to the Complainant with interest @ 6% p.a.
In another interesting case of Mr. M. Ramesh Reddy V/s. State of A.P. ( 2003 (1) CLD 81) the hospital was held liable for negligent for not keeping the Bathroom clean as ti was found covered with fungus and which was slippery and as a result of which the pregnant women fell in the Bathroom to death !!!
On medical Negligence cases, often the Doctors face this problems as to why I alone should be made liable when i tender my services the result of which also depends upon the facilities provided and maintained by the Hospital !! This Judgment may help the Doctors to remove some of their doubts !!
Thanks and Regards
Adv. Rohit Erande
Pune.
You can read a copy of the first judgement by clicking on the following link
Dr. Krishna Mohan Bhattacharjee V/s. bombay Hospital & research Centre
In Medical Negligence cases, the question always arises as to what is the liability of the Hospital vis-a-vis Doctors. Lets try to learn in short about the captioned subject in view of the recent judgment of National Commission in the case of Dr. Krishna Mohan Bhattacharjee V/s. bombay Hospital & research Centre (Consumer Case No.221/2000)
The liability of the Hospital is either Direct or Indirect... Failure on part of Hospital in providing safe, secure and suitable environment for treatment as agreed comes in the realm of Direct Liability.
Indirect or Vicarious Liability is based on the principle of latin phrase "qui facit per alium facit per se" meaning thereby one who acts through another, acts in his or her own interests.
The deceased wife of the Patient was initially admitted in the AMRI Hospital Kolkatta where she was diagnosed as brain tumor in right frontoparietal region (meningioma) and for better treatment, she was advised to go to Bombay Hospital. There under the treatment of well known Neurosurgeon late Dr. S.N. Bhagwati, (who died during the pendency of the Case) the deceased was admitted. It was alleged by the Complainant that since Dr. Bhagwati was scheduled to go to Dubai, Doctor insisted for operation on 04/04/1998, Saturday. But being the Saturday, the complainant refused and the operation was fixed on 05/04/1998 and without performing any pre operation Tests like CT, BT, without having sufficient units of blood, the Dr. hurriedly performed three consecutive surgeries upon the patient, one after another, for removal of meningioma, but the patient became comatose after surgery and was put on ventilator. Ultimately, she died, on 9.5.1998 and hence the Complaint demanded compensation for Rs.25 lacks !!!!
The allegations were denied by the Opponent Hospital and Doctors. The hospital submitted it had provided the best of its infrastructure, qualified staff and facilities to the patient. The Doctor contended the case was complicated one and all the necessary tests were performed.
In the instant case the question before the Commission as to whether there the Opponent Doctor and the Hospital failed in Pre-Operative Workup of the Patient or there were lapses in Post-operative care ?.The Commission while rejecting the plea of the Complainant of Post-operative care lapses, it observed that, "The case being a complicated one further complications occurred during treatment, which to the best of doctors and surgeons, cannot be predicted or pre-determined, thus the doctor cannot be held negligent. There is nothing like absolute precision or guarantee cure, because every doctor and surgeon, using his best possible skill, takes utmost care" The Allegation that the Doctor was in hurry in going to dubai were also turned to be false on evidence and it was also observed that the patient suppressed the earlier medical History . It was also proved that there was sufficient amount of Blood units kept ready and patient’s follow up was maintained in ICU by proper medication and higher antibiotics !
However the Commission observed that the opponents failed to perform “Preoperative Workup of the patient”, and Why the blood tests to rule out bleeding tendencies in the patient were not conducted in a planned Neuro surgery for Meningioma. It was admitted by Dr. Bhagati that no CT/BT test were performed and the Commission observed that one of the reputed Hospital in the Country has not followed Standard Operating Protocols in this case, hence, it was ‘Hospital Negligence’ and also to some extent, a ‘professional negligence.
It also observed that hospital authorities are not only responsible for their nursing and other staff, doctors, etc. but also for the Anesthetists and Surgeons, who practice independently, but admit/ operate a case. It does not matter whether they are permanent or temporary, resident or visiting consultants, whole or part time. The hospital authorities are usually held liable for the negligence occurring at the level of any of such personnel. Where an operation is being performed in a hospital by a consultant surgeon who was not in employment of the hospital and negligence occurred, it has been held that it was the hospital that was offering medical services. The terms under which the defendant hospital employs the doctors and surgeons are between them but because of this, it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. The patients go and get themselves admitted in the hospital relying on the hospital to provide them the medical service for which they pay the necessary fee. It is expected from the hospital, to provide such medical service and in case where there is deficiency of service or in cases like this, where the operation has been done negligently, without bestowing normal care and caution, the hospital also must be held liable and it cannot be allowed to escape from the liability due to reason of non-existing of master-servant relationship between the hospital and the surgeon.
Therefore, it directed the Hospital to pay Rs.10 laks to the Complainant with interest @ 6% p.a.
In another interesting case of Mr. M. Ramesh Reddy V/s. State of A.P. ( 2003 (1) CLD 81) the hospital was held liable for negligent for not keeping the Bathroom clean as ti was found covered with fungus and which was slippery and as a result of which the pregnant women fell in the Bathroom to death !!!
On medical Negligence cases, often the Doctors face this problems as to why I alone should be made liable when i tender my services the result of which also depends upon the facilities provided and maintained by the Hospital !! This Judgment may help the Doctors to remove some of their doubts !!
Thanks and Regards
Adv. Rohit Erande
Pune.
You can read a copy of the first judgement by clicking on the following link
Dr. Krishna Mohan Bhattacharjee V/s. bombay Hospital & research Centre
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