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Showing posts with label Medical negligence. Show all posts
Showing posts with label Medical negligence. Show all posts
Friday, May 17, 2013

MEDICAL NEGLIGENCE - The State Commission, therefore, directed the Appellants to jointly and severally pay the Respondent (i) Rs.77,023/- towards expenditure upto 30.05.2001; (ii) Rs.70,000/- as damages; and (iii) Rs.10,000/- as litigation costs within a period of 45 days from the date of the communication of the order.- It is an admitted fact that the Respondent was admitted for gallbladder surgery in Appellant/Institute and as a part of the anesthesia procedure a cylindrical pipe was inserted inside his throat and since it could not be placed in the desired position despite several attempts, the operation had to be abandoned. It was later confirmed that the intubation was unsuccessful because of a jutting cartilage inside the throat which was a pre-existing structural problem in the Respondent’s throat. = it was for the Appellants as medical professionals to have got all the tests done and once there was a problem with the intubation, they should not have made repeated attempts to thrust the pipe, which resulted in serious injuries leading to other complications. - the Respondent had developed a life threatening condition because of the pharyngeal tear close to larynx and multiple air filled cavity in Appellant No.1/Institute - the due and reasonable care was not taken by the Appellants in the treatment of the Respondent while intubating the cylindrical pipe in connection with the anesthesia. While the problem was apparently caused because of a structural defect in the Respondent’s throat, severe damage could have been averted or minimized if the Appellants had been more sensitive and careful and not insisted in pushing the tube several times despite knowing that there were problems. There is no other explanation for the extensive and severe injuries caused inside the Respondent’s throat. We are also unable to accept the contention of the Appellants that the onus was on the Respondent to have disclosed the relevant facts regarding structural defects since there is no evidence that he was aware of this problem. If indeed he had been aware, there was no reason for him to have withheld this fact.

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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 114 OF 2009 (Against the order dated 16.02.2009 in SC Ca...
Friday, April 12, 2013

Medical negligence = The patient was a primigravida (pregnant with first child) She felt labour pains. She was admitted in the hospital/OP1 on 16.12.2007. The Doctor assured her that the delivery would be normal. Subsequently, she was told that cesarean operation was required. = “Negligence per se – Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes”.= The record from the Government Hospital reveals that the patient was diagnosed as acute peritonitis/post LSCS and septic shock. The deceased was transferred to surgery department for exploratory laparotomy. She was operated on 27.08.2007 and approximately 700 ml pus was drained from abdominal cavity and inter bowel loops pus was also present. She had been bleeding post-operatively for which she was operated again and bleeding was stopped. On 27.12.2007, she was shifted to ICU and put on ventilator. Her condition gradually deteriorated and she expired on 28.12.2007. Such a big quantity of pus cannot crop up in a jiffy.

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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 685 OF 2013                (From  order dated 26....
Saturday, February 9, 2013

Penal Code 1860, Sections 304-A, 88, 92, 93-Criminal Liability for Medical Negligence-Death due to medical negligence-Criminal liability of doctor-Held, to prosecute a medical professional for criminal negligence it must be shown that the accused doctor did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do-Hazard taken by the accused doctor should be of such a nature that the resultant injury was most likely imminent-On facts, held, doctor can not be proceeded against under S. 304-A as it is a case of non-availability of oxygen cylinder-Rationale for special treatment of doctOTHERS discussed in detail and guidelines laid down to protect interest of doctOTHERS, and to save them from unwarranted and malicious proceedings. Sections 304-A, 88, 92, 93-Mens rea in criminal negligence-Held, for negligence to amount to a criminal offence, the element of mens rea must be shown to exist- Recklessness, i. e. disregard for the possible consequences, constitutes the mens rea in criminal negligence. Section 304-A-Negligence-As a tort and criminal negligence-Nature of Negligence required-Held, to fasten liability in criminal law, degree of negligence has to be higher than negligence enough to fasten liability for damages in civil law-For criminal libility, the negligence has to be gross or of a very high degree-Expression "rash and negligent act" to be reads qualified by "grossly". 304-A-Liability under-When attracted-Held, death must be direct result of act of accused-Such act must be causa causans-Not enough if it is cause sine qua non-Criminal Law-Negligence-Causation. Section 304-A-Res ipsa loquitor-Applicability in criminal law-Held, this rule cannot be applied for determining per se the liability for negligence in criminal law and case under section 304-A cannot be decided solely by applying this rule. Tort-Professional negligence-Scope of-Held, a professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise the skill which he possessed with reasonable competence in the given case-Standard of care required is of the ordinary competent person exercising ordinary skill in that profession-Test laid down in Bolam's case held, applicable in India. Professional negligence distinguished from occupational negligence. Tort-Negligence-Medical Neglicence-Detailed explanation of when devation from normal medical practice would amount to evidence of medical negligence. Tort-Negligence-Res ipsa loquitor-Application to Medical Practioners-Held, has to be applied with extreme care and caution to the cases of medical negilgence. Complainant's father was admitted to the hospital. He felt difficulty in breathing. Duty nurse called some doctor to attend to the patient. No doctor turned up for 20-25 minutes. Then the appellant and another doctor came to the patients room. An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The oxygen cylinder was found to be empty. There was no other gas cylinder available. Later, the patient was declared dead. An offence under sections 304-A/34 Penal Code, 1860 was registered and charges filed against the doctOTHERS. Doctor's petition to High Court to quash the charges was dismissed. Hence the appeal. Citation: 2005 AIR 3799,2005(2 )Suppl.SCR383 ,2005(6 )SCC300 ,2005(6 )SCALE173 ,2005(6 )JT614 Allowing the appeal, the Court HELD : 1.1. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failute of taking precautions what has to bee seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. [338-B-F] 1.2. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to posses the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, holds good in its applicability in India. [338-F-H; 339-A] Micheal Hyde and Associates v. J.D. William & Co., [2001] PNLR 233; Bolam v. Friern Hospital Management Committee, [1957] 1WLR 582 Eckersley v. Binnie, [1988] 18 Con LR 1; Hucks v. Cole, [1968] 118 New LJ 469; Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 and Hunter v. Hanley, [1995] SLT 213, relied on. Suresh Gupta (Dr.) v. Govt. of NCT of Delhi, [2004] 6 SCC 422; John Oni Akerele v. R., AIR (1943) PC 72; Kurban Hussein Mohammedali Rangwalla v. State of Maharashtra, [1965] 2 SCR 622; Kishan Chand v. State of Haryana, [1970] 3 SCC 904; Juggankhan v. State of M.P., [1965] 1 SCR 14 and Emperor v. Omkar Rampratap, (1902) 4 Bom LR 679, relied on. Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, [1969] 1 SCR 206; Indian Medical Association v. V.P. Shantha, [1995] 6 SCC 651; Poonam Verma v. Ashwin Patel, [1996] 4 SCC 332; Achutrao Haribhau Khodwa v. State of Maharashtra, [1996] 2 SCC 634; Spring Meadows Hospital v. Harjot Ahluwalia, [1998] 4 SCC 39; Whitehouse v. Jorden, (1981) 1 ALL ER 267 and State of Haryana v. Santra, [2005] 5 SCC 182, referred to. 2.1. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. For negligence to amount to an offence, the element of mens rea must be shown to exist. It is recklessness that constitutes mens rea in criminal law as far as negligence is concerned. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. [318-C, E, H; 319-A; 320-C; 339-A-B] 2.2. The word `gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be `gross'. The expression `rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word `grossly'. To impose criminal liability under Section 304-A IPC, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. [332-C-D; 339-C-D] 2.3. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. [339-D-E] R. v. Lawrence, [1981] 1 All ER 974; R. v. Caldwell, [1981] 1 All ER 961; Andrews v. Director of Public Prosecutions, (1937) AC 576; Syad Akbarnr v. State of Karnataka, [1980] 1 SCC 30; Reg v. lndu Beg, [1881] 3All 776 Riddell v. Raid, [1942] 2 All ER 161; Bhalchandra Waman Pathe v. State of Maharashtra, (1968) Mah LJ 423 (SC), relied on. Roscoe's Law of Evidence (15th Edn.), pp. 848-49; "Speeches and Poems with the Report and Notes on the Indian Penal Code" by Lord Macaulay (Houghton Mifflin and Company, published in 1874), pp. 419, 421 & 422; Alan Merry and Alexander McCall Smith ErrOTHERS, Medicine and the Law (Cambridge University Press, 2001), pp. 241-248, relied on. 3. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. [339-E-F] Syad Akbar v. State of Karnataka, [1980] 1 SCC 30, relied on Krishnan v. State of Kerala, [1996] 10 SCC 508, explained, 4. To protect the interest of doctOTHERS and to save them from unwarranted and malicious proceedings, statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, the following guidelines will be in force which should govern the prosecution of doctOTHERS for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner, unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested. [340-F-H; 341-A-B] 5. In the present case all the averments made in the complaint, even if held to be proved, do not make out a case of criminal rashness or negligence on the part of the accused-appellant. It is not the case of the complainant that the accused-appellant was not a doctor qualified to treat the patient whom he agreed to treat. It is a case of non-availability of oxygen cylinders either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. Then, probably the hospital may or may not be liable in civil law but the accused-appellant cannot be proceeded against under Section 304-A IPC on the parameters of the Bolam test. [341-C-E] G.E. Vahanvati, Rakesh Dwivedi, Ashok H. Desai, Vivek K. Tankha, Rupinder Singh Suri, Mrs. Gurvinder Suri, Jagjit Singh Chhabra, Atul Nanda, Addl. Advocate General for State of Punjab, Bimal Roy Jad, P.N. Puri, Maninder Singh, Kirtiman Singh, Saurabh Mishra, Angad Mirdha, Mrs. Pratibha M. Singh, Devadatt Kamat, Ms. Rameeja Hakem, Chinmoy Pradip Sharma, Hrishikesh Barua, Ms. Suruchi Suri, Ravinder Narain, Ms. Sushma Sharma, Ms. Meghalee Barthakur, Ms.Kanika Gamber, Rajan Narain, Harekhrishna Upadhyaya, Prashant Kumar, Siddharth Singh Chauhan, Harsh Pathak, A.A. Maitrya, Praveen Khattar, Mrs. Sudha Gupta, Avik Datt and V. K. Monga for the appearing parties.

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http://JUDIS.NIC.IN  SUPREME COURT OF INDIA Page 1 of 21 CASE NO.: Appeal (crl.)  144-145 of 2004 PETITIONER: Jacob Mathew            ...