Mere error in Diagnosis not medical negligence! HC relief to paediatrician who diagnosed TB instead of renal calculus
when the petitioners consulted other doctors, they opined that the child was not suffering from TB, but from Renal Calculus
Ahmedabad: Observing that a mere error in judgment in the diagnosis of ailment cannot be termed medical negligence, the Gujarat High Court recently dismissed a plea filed by the parents of a deceased child seeking compensation for alleged medical negligence in the treatment provided by a paediatrician.
Filing the plea, the petitioners alleged that the doctor initially diagnosed that the newborn child was suffering from TB when the child had Renal Calculus. However, noting that the child had taken treatment from several other doctors, the HC bench comprising Justice Devan M. Desai noted, "In such set of facts, when the patient had taken treatment from various doctors and from various hospital and in absence of any cogent material in proving medical negligence on the part of the defendant No.1 and mere an error in judgment in diagnosis of ailment cannot be said to be the medical negligence."
The history of the case goes back to 1985 when the petitioners took their newborn child to the treating doctor for examination. After examining the child and studying the reports, the doctor diagnosed that the child was suffering from TB and accordingly started the treatment.
However, even after one month of undergoing treatment, the child did not recover and when the petitioners consulted other doctors, they opined that the child was not suffering from T.B., but from Renal Calculus (a disease relating to Kidney and more particularly to testicles).
As the patient's condition worsened, the treating doctor consulted Dr. Naik and thereafter, the child was taken to Dr. Naik's nursing home, where he was operated on for Renal Calculus twice. After that, the child expired at the age of two years, two months, and thirteen days. Following this, the petitioners initiated criminal proceedings against the doctor and also filed a plea seeking compensation of Rs 5,00,000. They alleged that the child died because the doctor could not diagnose that the child had Chronic Renal Failure (CRF).
However, the doctor denied his liability and contended that he had performed his duties as per the medical practice and that reasonable care was taken during the treatment. The doctor submitted that the child was diagnosed with stone in both the Kidneys with Urinary tract infection and therefore, advised the petitioners that their son needed immediate operation to remove the stones from both the Kidneys.
Thereafter, the petitioners were advised to consult a Surgeon for immediate surgery to remove the stones from both the kidneys. However, the petitioners did not come back to him and after 27.11.1985, he did not treat the child.
Further, the doctor also denied the allegations that the child was diagnosed with the ailment of T.B. He also claimed that he had prescribed proper and correct treatment for the said ailment and there was no negligence or misdiagnosis by the treating doctor.
The doctor also pointed out that the criminal complaint lodged by the petitioners was dismissed on 16.09.1989 acquitting him from all the charges which were levelled against the treating doctor by the petitioners.
While considering the matter, the HC bench explained that in cases of medical negligence, the matter of consideration is whether the treating doctor had taken due care and had followed the established medical practice. The Court noted that as per the oral deposition given by the doctor, the child was given three medicines for the ailment of T.B.
"Except the aforesaid oral deposition of defendant No.1, the plaintiffs have not been able to extract any adverse fact which attributes the negligence on the part of the defendant No.1 in resulting death of child," noted the Court.
"From the facts, which are placed before this Court, is a case of error in judgment. And it is for the plaintiffs to establish the same by leading cogent and convincing medical evidence that the result of the death of the child is because of the side effect of dozes of medicines which were prescribed to the child. None of the treating doctors of the child has opined by relying upon medical literature that the medicines which were prescribed by defendant No.1, is the ultimate cause of death of the child. In establishing medical negligence, there has to be conclusive medical evidence which can establish the fact that medical practitioner has remained negligent in discharging his / her duties and the line of treatment which was adopted in treating the patient was not as per the prescribed adopted medical practise," it further observed.
Taking note of the fact that the doctor claimed that the side effects of the medicines given to the child were not fatal and also observing that the patient took treatment at several hospitals, the HC bench observed,
"As observed earlier, it is not the case of plaintiffs that because of side effects of aforesaid three medicines, their son has expired. The side effects, as per the say of Defendant No.1 is not fatal to the patient. In such set of facts, when the patient had taken treatment from various doctors and from various hospital and in absence of any cogent material in proving medical negligence on the part of the defendant No.1 and mere an error in judgment in diagnosis of ailment cannot be said to be the medical negligence. This view is fortified by various decisions of the Hon’ble Apex Court."
With this observation, the Court opined that the petitioners could not establish the allegations of negligence and accordingly upheld the trial court's order holding that the doctor had not committed medical negligence.
"Thus, in the totality of the facts and circumstances of the case, I am of the view that plaintiffs have not been able to establish the allegations of negligence by defendant No.1. The learned trial Court has not committed any error in arriving at a conclusion which is based on medical evidence that defendant No.1 has not acted in a negligent manner. Resultantly, the First Appeal fails and the same is dismissed with no order as to costs. Accordingly, the connected Miscellaneous Civil Application is also disposed of," ordered the Gujarat HC bench.
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/gujarat-hc-order-253190.pdf
