New Delhi: A doctor is “vicariously liable” for his team which assists him in rendering treatment, the apex consumer commission has said while directing the treating doctors and hospital to pay Rs 16 lakh to a couple who lost their daughter, a cancer patient, after she was administered injection wrongly.
The National Consumer Disputes Redressal Commission (NCDRC) held the hospital and the treating doctors guilty of medical negligence and said that they were liable for the death of the three-year-old girl who was suffering from blood cancer.
Its order came in the case of 3 year old patient who had suffered ascending paralysis and ultimately died on 20.7.2004 i.e. after 15 days of administering of injection in a wrong manner. The patient was being treated for blood cancer in Mohan Dai Oswal Cancer Treatment and Research Foundation Hospital.
The Patient was 3 years old and suffering from Leukaemia; she underwent bone marrow examination at Dharamshila Cancer Hospital and Research Centre, earlier which was suggestive of CALLA positive B cell ALL. She had also underwent Chemotherapy for first two weeks at that cancer hospital.
The patient was then admitted to Mohan Dai Oswal Cancer Treatment and Research Foundation Hospital. She was being treated under the head of the Medicines Department who was being assisted by two other medicos. According to the treatment protocol prepared by the doctor, the Patient was to be given four cycles of Chemotherapy for which 11 injections of Vincristine of 1 Mg each dose was to be given intravenously and 14 injections of Methotrexate was to be administered intrathecally and these four cycles were supposed to be completed within four to five months.
It was submitted that the doctors committed gross negligence by administering Vincristine injection to the Patient intrathecally instead of administering the same to her intravenously, although they knew that the administration of the injection in a wrong manner would prove fatal.
The Complainants had filed a Complaint before the Punjab Medical Association, lodged an FIR against the Doctors and the Criminal case is pending in the Court of Additional Judge Ludhiana under Section 304 (a) IPC. Thereafter the Complainant approached the State Commission.
The parents alleged that upon reporting the mistake to doctor, he allegedly along with the other assisting doctors had said that the medicine would ultimately reach the stomach and it does not matter as to how it was administered.
One of the directors of the hospital was contacted to take some remedial action, but he allegedly said it did not make any difference as the patient was already suffering from cancer and would not live for more than five years, as per the complaint.
The parents alleged that the doctors had also made them to buy an injection of Rs 4,80,000 which they later refused to administer saying the patient was too young for the same.
The hospital in it defence contended that it is a natural process of death which occurs among patients who have received such kind of medicines. It was denied that they had charged an exorbitant amount for the treatment. All treatment was rendered as per standard protocol, they added.
The counsel for hospital submitted as per the post-mortem report, histopathology report, chemical examination report and the bed head ticket of the Patient the cause of death was Toxaemia of Acute Lymphoid Leukaemia and the treatment with anti-mitotic drugs and Septicaemia due to fungal infection. It is a natural process of death which occurs among patients who have received such kind of medicines.
The Oncologist who had prepared the treatment protocol had submitted that the intrathecal injection was administered by anaesthetists of the Hospital and; that the child was suffering from a terminal disease of blood cancer, which was already at an advance stage; that the treatment of the Patient was on the same line as has been suggested/ advised by the other reputed institutes where the Patient was taken for treatment.
He pleaded that he had never given an injection to the Patient and that medication to be given was duly prescribed and his role was only limited to the extent of giving the prescription and whatever prescribed was mentioned in the treatment chart of the Patient.
The senior anaesthetist stated that she was called in by the DNB Anaesthesia Resident toto assist in giving lumbar puncture which he had tried three times as it was needed for administering the injection intrathetically, which she helped in and left the theatre adding that she did not give the injection. Further she submitted that the DNB resident was perfectly within his medical knowledge and totally vigilant to administer the prescribed injection
The DNB Anaesthesia resident denied giving any wrong injection to the Patient and further stated that he did not administer any injection to the Patient and further that this injection could have been given in the Chemotherapy ward.
When the case was heard before the state commission, the bench had relied on expert opinion given by the Indian Medical Association, Ludhiana which held, “whatever happened in Oswal Cancer Hospital was a mistake on the part of the doctors, which lead to an accident and further complications leading on to death of the patient.”
The state commission held negligence in the matter and directed compensation. The case then came to the NCDRC in appeal. Before the court, the resident admitted that he was not in the knowledge that the medicine was to be administered intravenously.
Keeping in view the deposition, the discharge summary, the treatment record and the Expert Opinion we are of the considered view that there was negligence on behalf of the Hospital and the treating Doctors in administering Vincristine to the Patient intrathecally.
The court noted that the submission of the head of the Medicine Department who had written ‘the Protocol’ is not liable as he did not administer the medicine, is totally untenable in the light of the fact that admittedly the entire standard protocol was given by the senior doctor and moreover the entire treatment was rendered under his care and is therefore he is liable for any acts/ commission or omissions done by his team or the assistants who assisted him in rendering treatment to the Patient. The court noted
Having regard to what the Hon’ble Supreme Court has laid down about ‘ Duty of Care’ to be followed by medical professional, viewed from any angle it cannot be construed that ‘ Duty of Care’ of the treating Doctor/ head of the department, who is in this case has written the ‘Protocol’, ‘ Ends’ with giving the Prescription. At the cost of repetition, we are of the considered view that the Doctor is vicariously liable for the acts of his team which assists him in every
“we see no ground to interfere with the well-considered order of the State Commission including the quantum of compensation.” the court stated upholding he state commission judgement and directing compensation