Chapter: 4.1.2 What Constitutes Medical Negligence

What Constitutes Medical Negligence:

While deliberating on the absence of a basic qualification for a homeopathic doctor to practice a system of medicine (allopathy) in Poonam Verma V/s Ashwin Patel & Ors., (1996) CPS, (SCAN. Supreme Court held that a person who does not have knowledge of a particular system of medicine but practices in that system is a quack. Where a person is guilty of negligence per se, no further proof is needed.

The National Commission has laid down the guiding principles in Dr. Sr. Louie and Anr. V/s Smt Kannolil Pathumma & Anr^f III-1993 (1) CPR 422 (NC) as follows:

"For establishing negligence in diagnosis or treatment on the part of a doctor, the test is whether he/she has been proved to be guilty of such failure as no doctor of ordinary skill could be guilty of it, acting with reasonable care."

In this order, the National Commission also took strong objection to the fact that Dr. Louie has falsely and misleadingly shown herself to the public as M.D. though schwas orgy M. D. Freiburg, a German Degree which is equivalent to M.B.B.S. in India.

After considering the statement of witnesses, the State Commission came to the opinion that the conduct of Dr. Sr. Louie amounted to negligence. The National Commission upheld this finding of the State Commission of Kerala.

In this case (relating to the delivery of a lady with previous history of complications the National Commission has observed as follows:

"Dr. Louie ought to have attended Aysha after doing Artificial Rupture Of Membranes (AROM). Had she been present, she would have noticed the first sign of the complication occurring in Aysha and could have taken some steps, if possible, to stop further deterioration of the condition of Aysha and perhaps the life of Aysha and her baby could have been saved. Admittedly the child in the womb of Aysha was a big one as was disclosed by the X-ray examination. In the condition in which Aysha was, the baby had to be taken out from the womb of Aysha immediately; otherwise it would have died inside the womb. It appears that in such emergency there was every possibility of a vacuum slip. Dr. Abdul Salam, who treated the baby after it was removed from hospital has stated that the child had injuries due to vacuum slip; and of course, the baby was delivered in such asphyxiated conditions that it was not expected to remain alive."

In Nihal Kaur v/s Director, P.G.I.M.S.R. III (1996) CPJ 112 where a patient died a day after surgery and the relatives found a pair of scissors utilized by the surgeon while collecting the last remains, a compensation of Rs. 1.20 lakhs was awarded by the State Commission, Chandigarh on the grounds that negligence was writ large on record in handling the case though it was argued that arterial forceps and sponges were left behind in an attempt to save the life of the patient and (the said things were to be later removed, but could not be done as the patient died) the same did not contribute to patient's death.

A LANDMARK DECISION OF THE SUPREME COURT ON ME1:)ICAL NEGLIGENCE

In a landmark case, on 5.5.1998, the Supreme Court of India confirmed the order of the National Commission, which awarded a compensation of Rs. 12.5 lacs (out of the said amount Rs. 12,37,500/- is to be paid by the Insurance Company) as compensation to a minor and Rs. 5 lacs as compensation to the parents. The case, which attracted a great deal of public attention was:

SPRING MEDOWS HOSPITAL & ANR. ETC., (Appellants)
V/s
HARJOL AHLUWALIA THRO' K. S. AHLUWALIA & ANR. III (1998) CPJ 1 (SC) (Respondents)