Dinesh Jaiswal (Deceased) Through L.Rs. And Ors Vs Bombay Hospital And Medical Research Centre And Anr

1. LATE Sh. Dinesh Jaiswal, aged 42 years, was a businessman and a resident of Seoni (M.P.) suffered from discomfort and pain in the left leg since 1990 and felt difficulty in walking due to tightening sensation in the leg for which he was taking treatment. Dr. M. Aziz Khan advised Colour Doppler Test, which was performed by Dr. Sanjay K. Khemuka in his clinic on 13.4.1998. This report showed "mild hepatomegaly with aneurysm of lower abdominal aorta just above the bifurcation". Sh. Dinesh Jaiswal (deceased) consulted Dr. P.K. Despande, Cardiovascular and Thorasic surgeon at Nagpur, who after studying the report, advised "urgent surgical repair of aneurysm" and referred him to Dr. C. Anand Somaya of Bombay Hospital on 15.4.1998.

2. THE deceased was admitted to Bombay Hospital and Medical Research Centre as a patient under the care of Dr. Somaya and was asked to undergo Digital Sub Traction Angiography (DSA) on 22.4.1998 along with other tests. Dr. Somaya after examination of the patient recorded that there was ischaemic change in both lower limbs and gangrene was impending. After conducting the DSA test on 22.4.1998, it was decided to conduct the surgery on the next day, i.e., 23.4.1998. Though the deceased and his family members tried to meet Dr. Somaya on 22.4.98, he did not meet them. However, the nurse came and told that surgery will cost around Rs. 60,000 to 70,000. Neither Dr. Somaya met the deceased or his relatives nor did he explain to them the gravity of the surgery and chances of success. On 23.4.1998, the deceased, at about 8.30 a.m., was taken for surgery and taken back to recovery room, at about 6.30 p.m. After the surgery known as "Aneurysmectomy with aorta Bi Iliac grafting leading to end anastomosis", the deceased was shifted to recovery room and put on ventilator. (Emphasis added)

3. THE complainant contended that on 24.4.1998, at about 4 a.m., the nurse, who was attending the deceased observed that the pulsation of the deceased had become feeble, body temperature was very low and the lower limbs had gone cold. At about 7 a.m., relatives were told by the attending nurse that the patient was unconscious, legs were cold with no pulsation and she has informed the doctors at 4 a.m. Dr. Somaya came only at 9.30 a.m. and after assessing the condition of the patient directed to get second DSA test. The patient was made to wait for three hours in DSA room as the machine had gone out of order. Therefore, Dr. Somaya advised Angiography. He was taken to Angiography room, where he was made to wait with other patients in queue though his condition was critical. Dr. B.K. Goyal examined the patient and recorded that there was no pulsation in both the lower limbs. He stated that the patient most probably had developed block of abdominal aorta. The Angiography test conducted at 12.30 a.m. on 24.4.1998, showed a block (clot) at the graft due to which the blood supply to the lower limbs had totally stopped. This blockade proves that earlier surgery was not performed correctly and there was negligence. The report was confirmed at about 3.30 a.m. and a decision to re-explore was taken. However, as all the four Operation Theatres were occupied, the deceased had to wait upto 5.30 p.m. and finally taken to O.T. for re-grafting. On re-exploration by reopening the abdomen the hospital recorded that there was no pulsation in the graft and there was clot in the graft extending into both limbs of the graft. Therefore, the surgeon sutured a fresh graft and after surgery, the deceased was shifted to recovery room and put on ventilator.

4. THE treatment record showed that on 25.4.1998, there was no movement in both the legs. Deceased could not move hip, knee or ankle joint and there was no sensation from mid thigh down in both the legs. On 26.4.1998, the treatment record stated that in both the legs, there was no movement of knee or ankle or toes. The right leg was cold below knee while the left was warm. The deceased was crying out with pain. On 27.4.1998, the treatment record showed the presence of edema from down to a very high degree and also penis edema. Movement and reflex were also absent with no sensation below the hip. On 28.4.1998, it was recorded that deceased could not feel sensation of passing motion. On 29.4.1998, Dr. Khandelkar examined the patient again and recorded as follows:

As the kidneys stopped functioning SOS dialysis was advised. From 29.4.1998 onwards, the deceased was put on dialysis on every day.

5. DR. Khandelkar told the relatives that legs are lifeless and Dr. Somaya must take decision regarding the legs otherwise the patient would surely die. He further stated that kidneys can be made to function again but not the legs. When the deceased regained consciousness, he was in extreme pain. When the painkillers reduced the agony, he would complain that he could not do anything with his legs. From 30.4.1998 onwards, the patient was put on dialysis every day. It took about four hours and he used to cry out and say that pain was unbearable. On 4.5.1998, the legs had swollen so much and it appeared that it was going to burst. The fever was very high. Dr. Partha made incision in the legs, still edema did not come down. From the cuts, some liquid was dripping all the time.

6. THE relatives of the deceased came to know on 5.5.1998 that Dr. Somaya was leaving for vacation abroad, stated that once the kidneys were normal, the legs would revive. When the relatives requested Dr. Somaya not to leave the patient in this condition, he stated that he was going only for three days. In fact, he came back after a month. On 7.5.1998, the temperature of the deceased went to 38°C and he was feeling chills and rigor. The blood pressure was gradually coming down. From 6.5.1998 to 18.5.1998, deceased was daily put on dialysis. Blisters appeared on the legs. The colour of the legs changed to black. If pressure was applied on the legs by a finger, it would result in depression. On 18.5.1998, colour flow imaging of both lower limb arteries was done. Right posterior tibial artery showed almost nil flow. Left posterior tibial artery showed minimal flow. On 19.5.1998, kidneys were functioning 80% and hence, dialysis was stopped but the legs did not revive. Between 1.5.1998 to 20.5.1998, puss, blood and watery liquid was coming out of the legs. Muscles and tissues had rotten and very foul smell was emanating. Dr. Partha and Dr. Bindra used to drain out puss, fill cotton and cover the legs with bandages. The patient had to shift from recovery room due to the objection of the head nurse.

7. ON 27.5.1998, Dr. Partha referred the patient to Dr. Pachore, Orthopaedic Surgeon. Dr. Pachore shouted at Dr. Partha for not consulting him earlier and he plainly stated that if the legs were not amputated, the patient would not survive for more than a day. He further added that there has been so much delay and even after amputation, he could not say anything about the survival of the patient. On 27.5.1998, it was recorded that both the lower limbs had gangrene. Worms were seen in both the legs. Dr. Pradhan, who subsequently examined the patient found bilateral wet gangrene and advised "bilateral below knee guillotine". On 29.5.1998, the legs of the patient were amputated but the record of 30.5.1998 showed that septicemia was present. Dr. Wagle observed that patient was septicemic and anaemic. At that time, temperature was 39°C and blood pressure was 80/60. Complainant was constantly suffering from pain and was crying loudly. Hence, he was shifted to ICU. The medical record of 5.6.1998 showed that deceased was delirious and smelling very foul. So, the hospital decided to shift the patient. However, on the written request made by the relatives, three days'' extension in ICU was granted. On 8.6.1998, the complainant was toxic and delirious. He collapsed and was gasping for breath. He was connected to respirator. Complainant died at 9.30 p.m. on 12.6.1998.

8. ACCORDING to the complainants, there was negligence and deficiency on the part of opposite parties. They have given the following examples:

(a) Though the attending nurse observed at 4.30 a.m., on 24.4.1998 that lower limbs had become cold that Dr. Somaya came only at 9.30 a.m. This time gap was enough to rupture the muscles and process is irreversible. Timely medical care could have saved the life of the complainant.

(b) Despite the critical condition of the deceased, he was made to stand in the queue of DSA test for more than three hours and after that, he was told that the machine was dis-functional and only at 12.30 p.m., i.e., after 8 hours, it was discovered that blood supply has stopped. Angiography was performed and report was given only at 3.30 p.m. On receipt of the report, the surgeon decided to reopen the abdomen, which could not be done immediately because operation theatre was not vacant. There was no emergency operation theatre. This caused further delay of three hours. There was total delay of 12 hours when the muscles could not survive due to lack of blood supply.

9. IMPENDING gangrene was mentioned in DSA report on 24.5.1998 by Dr. Somaya but no action was taken. Dr. Somaya being the senior most surgeon of the team could have got the patient under constant observation but after the patient was shifted to recovery room, he came to examine the patient only after 16 hours. Leaving the patient fighting for his life in care of junior Dr. Partha and Dr. Bindra, Dr. Somaya went abroad for vacation and he was not available even for his advice after 30 days. Dr. Kripalani, Nephrologist examined the patient and remarked that both the legs are gone and it is a gone case and told each and everything. Had Dr. Somaya taken the decision to amputate the legs at the right time he could have saved the life of the complainant. It is clear even to a medical student that dead muscles invite septicemia and gangrene. So, timely action was required to prevent further damage but Dr. Somaya refrained from adopting the requisite procedure. Therefore, it is an established case of negligence on the part of the opposite parties, as a result of which the patient died on 12.6.1998.

10. THE complainants have claimed Rs. 4,08,000 on account of expenses incurred towards operation charges, medicines, hospitalization. Further, they have claimed Rs. 21,24,950, which the deceased Dinesh Jaiswal would have been reasonably expected to earn till the age of 62 years. It is alleged that claim is based on average earnings of the deceased Dinesh Jaiswal in the preceding three years. He was doing business and owner of two buses and his Profit and Loss Accounts are submitted. The heirs of deceased Dinesh Jaiswal disposed of one bus on loss amounting to Rs. 3,57,121 in order to pay back the loan taken from the relatives and friends to meet the medical expenses. The complainants have claimed Rs. 1,94,000 as the amount spent towards purchase of imported life saving drugs and medicines. No cash memo could be filed as the chemist refused to give the same. Rs. 7,731 was spent towards purchase of Indian medicines supported by bills. The relatives of the deceased had to stay at Mumbai and a sum of Rs. 11,960 was spent. Rs. 15,000 was spent for travelling by the relatives to and fro from Bombay and within Bombay. Rs. 11,000 was paid for hearse van for bringing the body of the deceased from Mumbai to Seoni (M.P). The complainants have further claimed Rs. 6,00,000 on account of acute agony suffered by the deceased, who was constantly in pain, intermittently lost his mental balance, whose legs developed gangrene to the extent that maggots and worms were crawling. Ultimately they had to be amputated and who died a slow death as one after other all the organs stopped functioning. In toto, the complainants claimed Rs. 37,29,762 along with 18% per annum from the date of filing the complaint till realization.

11. LEARNED Counsel for the complainant quoted the Journal of Investigative Surgery (1994 Vol. 7. No. l, pages 39-47):

"There are two components to the reperfusion syndrome, which follows extremity ischemia. The local response, which follows reperfusion, consists of limb swelling with its potential for aggravating tissue injury and the systemic response, which results in multiple organ failure and death. It is apparent that skeletal muscle is the predominant tissue in the limb but also the tissue that is most vulnerable to ischemia. Physiological and anatomical studies show that irreversible muscle cell damage starts after 3 h of ischemia and is nearly complete at 6 h. These muscle changes are paralleled by progressive microvascular damage. Microvascular changes appear to follow rather than precede skeletal muscle damage as the tolerance of capillaries to ischemia vary with the tissue being reperfused."

12. THE learned Counsel further quoted Journal of Investigative Surgery (1994 Vol. 7. No. l, pages 39-47) relating to ischemia reperfusion injury:

"Ischemia-reperfusion injury remains a difficult problem facing vascular surgeons because of its associated high morbidity and mortality. The basis for tissue injury during ischemia depends on depletion of tissue oxygen and energy substrates. Cell injury, as documented cellular edema and lysosomal degranulation, begins after only 30 min of ischemia. Irreversible cellular changes occur after 4-6 h of skeletal muscle ischemia. Following acute material occlusion, the restoration of blood flow heralds the onset of biochemical events, forming the basis of what is known as the reperfusion syndrome. The tissue injury is maximal in areas with the greatest blood flow during reperfusion. Endothelium-leukocyte interactions play an important role in ischemia-reperfusion injury. Both endothelial and white blood cells have the biochemical machinery and capacity to generate molecular signals, to express adhesion proteins, and to produce toxic metabolic by-products. Since the microcirculatory changes in ischemia-reperfusion injury parallel those seen in inflammation, the leukocyte-endothelial interaction can explain many of the reactions associated with the early phases of ischemia-reperfusion injury."

13. THE learned Counsel submitted that there are two components to the reperfusion syndrome which follows extremity ischemia, the local response which follows reperfusion consists of limb swelling with its potential for aggravating tissue injury and the systemic response which results in multiple organ failure (including lung, heart, and kidneys) and death.

14. THE cell injury as documented cellular edema and lysosomal de grenulation begins after only 30 mins of ischemia, irreversible cellular changes occur after 3-6 hours. Irrecoverable damage to the muscles of legs occurred due to delay in performing second surgery which was urgently required due to the failure of the first surgery.

15. THAT it is clear to even a novice medical student that the dead muscles invite septicemia and gangrene. What was required was timely action to prevent further damage but Dr. Somaya refrained from adopting the requisite procedure and the deceased''s legs were amputated on 29.5.1998, almost after one month''s delay.

16. DR. Somaya went abroad on 9.5.1998 and returned on 7.6.1998 and he visited the patient only on 8.6.1998 long after a.m.putation was done on 29.5.1998, when septicemia had set in and patient was on his death bead. The Case of O.P. No. 1

17. THE learned Counsel for O.P No. l submits that the complaint filed by the complainant is contrary to the law laid down by the Apex Court in Martin D''Souza v. Mohd. Ishfaq, I (2009) CPJ 32 (SC)=157 (2009) DLT 391 (SC)=II (2009) SLT 20=(2009) 3 SCC 1. The complaint is not maintainable as it is instituted against the hospital, which is managed by trustees of a trust which also conducts and manages Bombay Hospital and Medical Research Centre. O.P. No. l is a charitable trust and does not employ doctors as its employees, save and except resident medical staff, assistants, nurses, technicians, clerical staff, administrative staff and such other staff who are employed with a view to provide necessary infrastructural facilities.

18. THE case of the complainant is not supported by any medical text. Further, the complainant has not produced any expert medical opinion in regard to alleged medical negligence on the part of opposite parties. Therefore, reference may be made to the judgment of the Hon''ble Supreme Court in Jacob Mathew v. State of Punjab and Anr., III (2005) CPJ 9 (SC)=122 (2005) DLT 83 (SC)=VI (2005) SLT 1=(2005) 6 SCC 1, wherein the test for determining medical negligence as laid down in Bolam''s, case is ardently relied upon. O.P. No. l provides best medical treatment and due care to his patients. O.P. No. l is equipped with technically advanced equipments and one such equipment is DSA (Digital Subtraction Angiography) machine, which is large, expensive and complicated. As the patient was in a serious condition, he had to be stabilized before carrying out the DSA test. The patient was put on ventilator and on several support medications. So, it was not possible for him to undergo DSA test immediately before attaining the calm physical and mental state but unfortunately the machine developed problem suddenly and as soon as the defects were located and rectified, the DSA test was conducted on the patient. It was not possible to take the patient to another hospital due to his critical condition. The patient has not disclosed his health condition prior to his treatment in this hospital. O.P No. 1 is a Super specialty hospital, which is essentially a Forum for bringing together several specialist consultants from different fields of medicine so that individual patient could be spared the efforts of expending time and energy in chasing such consultants.

19. LEARNED Counsel for the O.P. No. 1 submitted that O.P. No. 1 had four operation theatres and at that point of time when the patient required second surgery, no operation theatre was vacant. Hence, naturally the patient had to wait for a short while till the O.T. became vacant. No hospital is expected to keep any O.T. vacant in expectation of emergency patients. In fact, today this hospital has many more O.Ts. So, there was no procedural delay in treating the patient.

The Case of Doctor C. Anand Somaya, O.P. No. 2

20. THREE legal issues were raised:

(a) The complainants have not substantiated the allegation of medical negligence on the strength of any independent medical opinion, literature and comment of an expert.

(b) Claim is not based on well recognized principle of quantification of damages.

(c) Complaint involved complicated question of facts and law. Therefore, the same should be relegated to the Civil Court.

21. MAIN allegation against O.P. No. 2 is that he failed to give post operative care and failed to examine the patient when the complications arose, which is totally false and contrary to the case papers maintained by the O.P. No. l. O.P. No. 2 had to go abroad for medical conferences, which were planned in advance and he had made alternative arrangements during his absence which is a common practice followed by consultants/surgeons all over the world.

22. THE learned Counsel for O.P. No. 2 submitted that the complainants have made an allegation that Dr. Kriplani, Nephrologist stated that he was taking care of the kidneys but asked Dr. Somaya to take care of legs. These allegations have been denied by Dr. Kriplani by filing an affidavit. The allegation that complainant''s legs were amputated solely on account of lack of diligence and established case of negligence are baseless allegations. On the contrary, doctors at Bombay Hospital tried their level best to save the amputation of his legs.

23. CONSIDERING the past history of the patient, O.P No. 2 had personally discussed the case with family members and has given the clear picture of chances of success. On 23.4.1998, CU surgery was performed and surgery went uneventful.

24. THE patient was shifted to the recovery room at 6.30 p.m. and there were no complications. On 24.4.1998, DSA test was to be performed but unfortunately as equipment was not functioning, it could not be done immediately and due to the critical condition of the patient, he could not be shifted to any other hospital having DSA facilities. Therefore, it was performed later on and the surgery was done. The specific allegation of the complainant that he had not received post-­operative care for 16 hours is baseless. The patient died due to medical mishap and not due to medical negligence. Further, the complainants have not relied upon the post-mortem report to substantiate their allegations. Learned Counsel for O.P. No. 2 brought to our notice the extract of article on "Vascular System, Repair of Infrarenal Abdominal Aortic Aneurysms (AAAs)" from ACS Surgery Online by Frank R. Arko, M.D.: Christopher K. Zarins, M.D., F.A.C.S, wherein it is observed as follows:

"The mortality associated with repair of AAAs has been greatly reduced by improvements in pre-operative evaluation and perioperative care: leading centers currently report death rates ranging from 0% to 5%. Mortality after repair of inflammatory aneurysms and after emergency repair of symptomatic non-ruptured aneurysms continues to be somewhat higher (5% to 10%), primarily as a consequence of less thorough pre-operative evaluation. Overall morbidity after elective aneurysm repair ranges from 10% to 30%. The most common complication is myocardial ischemia, and MI is the most common cause of post-operative death. Mild renal insufficiency is the second most frequent complication, occurring after 6% of elective aneurysm repairs: however, severe renal failure necessitating dialysis is rare in this setting. The third most common complication is pulmonary disease; the incidence of post-operative pneumonia is approximately 5%. Lower extremity ischemia may occur as a result of either emboli or thrombosis of the graft and may necessitate re-operation and thrombectomy. So-called trash foot may also develop when diffuse microemboli are carried into the distal circulation. Paraplegia is rare after repair of infrarenal AAAs; the incidence is only 0.2%. Most instances of paraplegia occur after repair of a ruptured aneurysm or when the pelvis has been devascularized. The majority of patients recover at least some degree of neurologic function."

Date: 21.4.98 To, CMO Please admit under me Is urgent a case of Aorta Aneurysm for URGENT Surgery in M II/N.W II. Sd/- Dr. C.A. Somaya Allotted 1059 NW/II Dr. Somaya CONTINUATION SHEET MEDICAL RESEARCH CENTRE OF BOMBAY HOSPITAL TRUST Date: 22.4.98 Case seen A 42 years old male with arota pain left lower limb and right leg below knee gradual claudication B.P-100/80 Ischaemic changes both lower limbs Seen with impending gangrene. Both legs left muscles are tested. Sd/- Dr. C.A. Somaya Date: 23.4.98 Name : Dinesh Jaiswal Pre OP : Intra renal aorata Aneurysum Operation : Aneurysmectomy with Aerto Bi Ilaic Grafting lend to end anastomosis Anais thesia under general anaesthesia D.O.O. 23.4.98 Anaesthetist : Dr. Tilu/Arora Surgeons : Dr. C.A. Somaya/Dr. Partha/Dr. Bindra Date: 24.4.98 Time 8 a.m. Call sent that patient peripheral Pulsation were feeble/not felt. The limbs were cold. On examination patients body temp, was very low. Perepherin were cold, Pulsation were feeble. Doppler showed minimum flow. Decision to do repeat DSA (Degital Sub Traction Angiography) was taken to establish flow in lower limbs. Since DSA machine was not working, angiography was done. Angiography showed Block at the graft level. Date: 24.4.1998 Decision to re-explore was taken. As the theater were occupied, Patient was taken for re-exploration at 3.30p.m. Sd/- Dr. Partha Date: 24.4.1998 Time 8 p.m. Operative Notes Re-Exploration Anaesthesia : Under General Anesthesia, Anaesthetist-Dr. Tilu Surgeons : Dr. C.A. Somaya/Dr. Partha/ Dr. Bindra. Procedure :

Date : 24.4.1998 A fresh graft was sutured in place after establishing the flow. End to end suture at the aortic level, end to end at the right iliac and end to side at the left iliac and end of the graft to the side of fermoral on Lt. Side. After checking pulsation and achieving haemostusis. The abdomen closed using drainage tubes. Patient shiftd on ventilator to recovery room. Date : 24.4.1998 C/S by Dr. C.A. Somaya, Dr. B.K. Goyal Operated C/o abdominal aneurysum -Developed absend pulsation of both lower limbs. -Most probably has developed block of abdominal aorta. -On ventilator. -Haemodynamically stable. -Adv. Abdominal Aortic Angiogram. Date: 24.4.1998 Time: 12.30 p.m. -Abdominal Aortic Angiogram done through right radial artery using a 6 F Peg tail catheter. -Shows Non-opacification of abdominal aorta beyond renal arteries. Sd/- (Dr. C.A. Somaya, Dr. B.K. Goyal) Date: 25.4.1998 Time 10 a.m. Case seen by Dr. Shruti -No movement of both leg. -Cannot move either at Hip /Knee /Ankle joint. -Sensation-pin priclk underes light touch undered from hind thigh down- sensation present or lat side of L limbs (L) leg warm upto ankle only foot cold (R) leg cold from below knee Tingidity of limbs Date: 27.4.1998 On 24 April 98 both the lower limbs were cold, pulses were absent with paraplegia. Paraplegia persists. Date: 27.4.1998 S.V. Khadikar Thanks History noted O/E could not have bowel and bladder sebsation. Boh lower limbs edematous. Only minimum power in left segment below left all strength lost. Sensory level at ingurinal ligament. Date: 27.4.98 Lower Limbs -Swelling+ -No movements present -Pencuiam -Penile odenme+ -Scrotal Odema+ Date: 27.4.1998 Time 11 a.m. The case seen by Dr. Shruti Date : 28.4.1998 Time 10 a.m. Case seen by Dr. Shruti Cannot feel sensation of passing motion. Date: 29.4.1998 Seen under by Dr. A.L. Kriplani -SoS dialysis Date: 18.5.1998 COLOUR FLOW IMAGING OF BOTH LOWER LIMB ARTERIES 1. The lower limb arteries in the upper segment i.e. upto popliteal ar patent. 2. The flow in both posterior tibial arteries is low velocity, venous type suggesting refilled flow. 3. No spectrum could be traced in both anterior tibial arteries. Date: 22.5.1998 No Sensation Date: 24.5.1998 -Drowsing -Does not respond verbally -looks staneously -sokage for leg would 700 ml 38. Date: 27.5.98 Time 10.30 p.m. Seen by Dr. J.A. Pachore Many thanks Presently Both lower limb below knee swelling gangrene Muscles are neurotic both clf area. Worm in (R) side Upper 1/3 tibia (L) side-upto existing wound No Movements. Adv. Needs amputation Level can be decided on opionoun in continuing tissue status vascularily Kindly get ore more orthopaedic opnioun. Date: 28.5.1998 Seen by Dr. C.G. Pradhan Bilateral wet gangrene Advice: Bilateral below knee guiloitne amputation Pt. Is Toxic Will talk to Dr. J.A. Pachore Date: 28.5.1998 No. H/O DM/HT/IHD Date: 28.5.1998 Pre-operative Diagnois: Vasular Gangrene Date: 30.5.1998 Diagnosis: Septicaemia

O.P. Nos. 1 and 2 have submitted that the complainant has not filed either an affidavit of an expert doctor or any medical literature. Learned Counsel for the complainant had submitted extracts of the relevant medical literature which shows that abnormal delay in conducting the surgery has resulted in damages to the muscles of the lower limbs due to lack of blood supply.

"Consent that is given by a person after receipt of the following information: the nature and purpose of the proposed procedure or treatment; the expected outcome and the likelihood of success; the risks; the alternatives to the procedure and supporting information regarding those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated with no treatment. Also included are instructions concerning what should be done if the procedure turns out to be harmful or unsuccessful."

"A doctor has to seek and secure the consent of the patient before commencing a ''treatment'' (the term ''treatment'' includes surgery also). The consent so obtained should be real and valid, which means that the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to."

"In the case in hand we are dealing with a problem which centres round the medical ethics and as such it may be appropriate to notice the broad responsibilities of such organisations who in the garb of doing service to the humanity have continued commercial activities and have been mercilessly extracting money from helpless patients and their family members and yet do not provide the necessary services. The influence exhorted by a doctor is unique. The relationship between the doctor and the patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner. It is a great mistake to think that doctors and hospitals are easy targets for the dissatisfied patient. It is indeed very difficult to raise an action of negligence. Not only there are practical difficulties in linking the injury sustained with the medical treatment but also it is still more difficult to establish the standard of care in medical negligence of which complaint can be made. All these factors together with the sheer expense of bringing a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country.

With the emergence of the Consumer Protection Act no doubt in some cases patients have been able to establish the negligence of the doctors rendering service and in taking compensation thereof but the same is very few in number. In recent days there has been increasing pressure on hospital facilities, falling standard of professional competence and in addition to all, the ever increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence. That apart there has been a growing awareness in the public mind to bring the negligence of such professional doctors to light. Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a Court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonably skill of a competent doctor.

In the case of Whitehouse v. Jordan & Anr., (1981) 1 ALL ER 267, an obstetrician had pulled too hard in a trial of forceps delivery and had thereby caused the plaintiffs head to become wedged with consequent asphyxia and brain damage. The Trial Judge had held the action of the defendant to be negligent but this judgment had been reversed by Lord Denning, in the Court of Appeal, emphasising that an error of judgment would not tantamount to negligence. When the said matter came before the House of Lords, the views of Lord Denning on the error of judgment was rejected and it was held that an error of judgment could be negligence if it is an error which would not have been made by a reasonably competent professional man acting with ordinary care. Lord Fraser pointed out thus:

The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professes to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence.

Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly. We are indicating these principles since in the case in hand certain arguments had been advanced in this regard, which will be dealt with while answering the question posed by us."

"123. The Courts and Consumer Fora are not experts in medical science, and must not substitute their own view over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oathf or their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.

124. It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is."

"The Consumer Forum is primarily meant to provide better protection in the interest of the consumers and not to short circuit the matter or to defeat the claim on technical grounds. As far as the Commission is concerned, the provisions of CPC are applicable to a limited extent and not all provisions of CPC are made applicable thereto. According to the procedure laid down by the Consumer Protection Rules, 1987 "the rules"), by Rule 14 thereof a complainant has to give the name, description and address of the opposite party or parties so far as they can be ascertained. So far as the law with regard to the non­-joinder of a necessary party under Order 1 Rule 9 and Order 1 Rule 10, CPC is concerned, there also even no suit shall fail because of misjoinder or non-joinder of parties. It can proceed against the persons who are parties before the Court. Even the Court has the power under Order 1 Rule 10(4) to give direction to implead a person who is a necessary party. Therefore, even if after the direction given by the Commission the doctor concerned and the nursing staff, who were looking after the deceased A, had not been impleaded as opposite parties it cannot result in dismissal of the original petition as a whole. Once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the doctor concerned who treated that patient, to show that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharage the same by producing the doctor who treated the patient in defence to substantiate their allegation that there was no negligence. It is the hospital which engages the treating doctor, thereafter it is their responsibility. The burden is greater on the institution/hospital that on the claimant. In any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The institution is a private body and it is responsible to provide efficient service and if in discharge of its efficient service there are a couple of weak links which have caused damage to the patient, then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties. Therefore, the expression used in Rule 14(1)(b), "so far as they can be ascertained", makes it clear that the framers of the Rules realized that it will be very difficult, especially in the case of the medical profession, to pinpoint who is responsible for not providing proper and efficient service which gives rise to the cause for filing a complaint, and especially in a case like the one in hand. Even otherwise also given that, as held above, the burden to absolve itself shifts on to the hospital/doctor, the Institute has to produce the treating physician concerned and has to produce evidence that all care and caution was taken by it or its staff to justify that there was no negligence involved in the matter. Therefore, nothing turns on not impleading the treating doctor as a party. The hospital is responsible for the acts of their permanent staff as well as staff whose services are temporarily requisitioned for the treatment of the patients. Therefore, the distinction between "contract of service" and "contract for service" which is sought to be pressed into service cannot absolve the hospital or the Institute as it is responsible for the acts of its treating doctors and nursing staff who are on the panel/staff of the hospital and whose services are requisitioned from time-to-time, temporarily, by the hospital for treatment of patients. For both, the hospital as the controlling authority, is responsible and it cannot take shelter under the plea that as a party the claim petition should be dismissed. Hospitals are institutions from which people expect better and efficient service; if the hospital fails to discharge its duties through its doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify, and not impleading a particular doctor will not absolve the hospital of its responsibilities."

Sl. No. Date Description Amount 1. 21.4.1998 Cash Receipt No. 0009652 Rs. 30,000 2. 1.5.1998 Cash R. No. 0027918 Rs. 1,00,000 3. 1.5.1998 By D.D. R. No. 0027917 Rs. 40,000 4. 1.5.1998 By D.D. R. No. 0027916 Rs. 40,000 5. 1.5.1998 By D.D. R. No. 0027915 Rs. 20,000 6. 6.5.1998 Cash R. No. 0027487 Rs. 8,913 7. 6.5.1998 Cash R. No. 0027488 Rs. 7,710 8. 6.5.1998 Cash R. No. 0027489 Rs. 11,198 9. 6.5.1998 Cash R. No. 0027490 Rs. 22,179 10. 1.6.1998 Cash R. No. 0011912 Rs. 36,146 11. 1.6.1998 Cash R. No. 0011913 Rs. 25,056 12. 1.6.1998 Cash R. No. 0011914 Rs. 8,798 13. 13.6.1998 Cash R. No. 0048582 Rs. 11,580 14. 13.6.1998 Cash R. No. 0048587 Rs. 5,659 15. 13.6.1998 Cash R. No. 0048585 Rs. 17,665 16. 13.6.1998 Cash R. No. 0048586 Rs. 10,133 17. 13.6.1998 Cash R. No. 0048584 Rs. 9,602 18. 13.6.1998 Cash R. No. 0048583 Rs. 4,161 Total: Rs. 4,08,800

"We must emphasize that the Court has to strike a balance between inflated and unreasonable demands of a victim and the equally untenable claim of O.Ps. showing that nothing is payable. Sympathy for the victim does not and ''should not'' come in the way of making the correct assessment, but if the case is made out, the Court must not be charity of awarding adequate compensation. ''Adequate compensation'' that we speak of, must be to some extent, be a rule of thumb measure and as a balance has to be struck. It would be in a condition to satisfy all the parties concerned."