Medical Negligence – Respondents Nos. 1 to 3-complainants filed a complaint of medical negligence against appellant No. 1hospital and appellant Nos. 2 to 4-the Paediatricians and ophthalmologist doctors working with the hospital and respondent No. 4-the Gynaecologist before the National Consumer Disputes Redressal Commission – NCDRC held the appellant no. 1-hospital guilty of medical negligence, since they failed to carry out the mandatory check up of Retinopathy of Prematurity (ROP) on respondent No. 1, who was a pre-term baby, which led to his total blindness and appellants Nos. 1 to 4 were jointly held liable to pay the total amount of Rs. 64,00,000/- – On appeal, held: The appellants owed a legal duty of care to the complainants/respondents Nos. 1 & 2 – The failure to inform the respondent No.2- mother of the respondent No. 1 of the necessity to have the ROP test conducted in the case of a pre-term baby and the high risk involved which could lead total blindness, was a breach of duty – Furthermore, the failure to carry out the ROP test, which is mandated by standard protocol, while the baby was under their direct care and supervision from birth till he was 3 and 1/2 months old, amounted to gross negligence by the doctors and deficiency of service by the hospital – Besides, there was inordinate delay of over 2 years by appellant Nos. 1 in making the medical records of respondent no.1 available to respondent no.2 and same would constitute a grave professional misconduct u/regn. 7 of the IMC regulations, apart from being a gross deficiency in service – The findings of the NCDRC affirmed and compensation of Rs. 76,00,000/- awarded to respondent no. 1 – Consumer Protection – Deficiency in service – Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002 – Regulation
1.3.2. Medical negligence – Constituents of – Held: Medical negligence comprises of the following constituents: (1) A legal duty to exercise due care on the part of the medical professional; (2) failure to inform the patient of the risks involved; (3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional; (4) if the risk had been disclosed, the patient would have avoided the injury; (5) breach of the said duty would give rise to an actionable claim of negligence. Medical negligence – Cause of action for – Held: The cause of action for negligence arises only when damage occurs, since damage is a necessary ingredient of this tort – In a complaint of medical negligence, the burden is on the complainant to prove breach of duty, injury and causation – The injury must be sufficiently proximate to the medical practitioner’s breach of duty – In the absence of evidence to the contrary adduced by the opposite party, an inference of causation may be drawn even though positive or scientific proof is lacking. Doctrines/Principles – Vicarious Liability – discussed. Medical Negligence – Bolam Test – discussed.
Disposing of the appeals, the Court
Inordinate Delay in Supply of Medical Records
HELD: 1.1 There was an inordinate delay of over 2 years in making the Medical Records of Respondent No.1 available to the Respondent No.2-Complainant. Regulation 1.3.2 of the Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002 casts a statutory obligation upon every doctor/hospital to provide medical records within 72 hours of the request being made by the patient. [Para 11.1] [1203-C-D]
1.2 As per Regulation 7, if the doctor refuses or fails to provide the medical records within 72 hours when the patient or his/her authorised representative makes a request as per the Regulation 1.3.2, the said act of commission or omission would constitute professional misconduct rendering him/her liable for disciplinary action and punishment under Regulation 8. [Para 11.1.2] [1204-D]
1.3 The withholding the medical records of Respondent No.1, who was a premature baby, for a period of over 2 years, would constitute grave professional misconduct under Regulation 7, apart from being a gross deficiency in service on the part of the Appellant No.1-Hospital and its management. [Para 11.1.7] [1206-G; 1207-A]
Failure to diagnose Retinopathy of Prematurity (ROP)
2.1 The ROP was neither advised, nor carried out at all by the Appellant No.1- Hospital, or Appellant No.4-the Senior Ophthalmologist, throughout the period of hospitalisation of the baby, or even after discharge. The baby was born in the 32nd gestational week, and was 1.49 kgs at birth. As per standard protocol, the ROP screening ought to have been done between 3-4 weeks from birth. The baby remained admitted for 27 days in the Hospital from 02.04.2005 to 29.04.2005. There is no justification whatsoever why the mandatory screening of ROP was not done for the baby, while he was under the direct care and supervision of the Appellants. [Para 11.2.10] [1215-G-H; 1216-A]
Medical Negligence and Duty of Care
3.1 Medical negligence comprises of the following constituents: (1) A legal duty to exercise due care on the part of the medical professional; (2) failure to inform the patient of the risks involved; (3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional;
(4) if the risk had been disclosed, the patient would have avoided the injury; (5) breach of the said duty would give rise to an actionable claim of negligence. [Para 11.4.1] [1217-D]
3.2 The cause of action for negligence arises only when damage occurs, since damage is a necessary ingredient of this tort. In a complaint of medical negligence, the burden is on the complainant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioner’s breach of duty. In the absence of evidence to the contrary adduced by the opposite party, an inference of causation may be drawn even though positive or scientific proof is lacking. [Para 11.4.1] [1217-E-F]
3.3 Medical negligence is the breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill and knowledge to the patient, to whom he owes a duty of care, which has resulted in injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient. [Para 11.4.2] [1217-F-G; 1218-A]
3.4 In the present case, Appellant Nos. 2 and 3-the Consultant Paediatricians, undoubtedly possessed the skill and qualifications of a Paediatrician, and the baby was placed under their direct care and treatment from birth till he was 3 ½ months old. They owed a duty of care to the baby and his parents. Appellant No.4-the Senior Consultant Ophthalmologist, who was engaged by the Appellant No.1-Hospital, and was the specialist in the Ophthalmology Department, ought to have followed the standard protocol for screening the Respondent No.1-baby for ROP, which is prescribed at the chronological age of 3 to 4 weeks after birth. [Para 11.4.13] [1227-D-E]
3.5 Appellant Nos.1 to 3 are liable for medical negligence since at no stage were the parents of Complainant No.1 either advised or guided about the possibility of occurrence of ROP in a premature baby, nor was the baby examined by Appellant No.4, the Ophthalmologist as per standard protocol. The doctors ought to have been fully aware of the high chances of occurrence of ROP in a pre-term baby. The lack of care constitutes a gross deficiency in service. After discharge on 29.04.2005, the baby was brought on 04.05.2005 at the chronological age of 5 weeks. Even on this date, no ROP test was either advised or conducted. The baby was brought for a further follow up check-up on 13.07.2005, by which time the baby was 3 ½ months old. Even on this visit, the Appellants did not advise or guide the Respondent No.2-Complainant to have the ROP test conducted. [Para 11.4.14] [1227-F-G]
3.6 This Court affirms the findings of the National Commission to hold that the Appellant No.1-Hospital, Appellant Nos. 2 and 3- the Paediatricians, and Appellant No.4- the Senior Ophthalmologist, owed a legal duty of care to the Complainants/Respondents No.1 and 2. The failure to inform the Respondent No.2-mother of the necessity to have the ROP test conducted in the case of a pre-term baby, and the high risk involved which could lead to total blindness, was a breach of duty. Furthermore, the failure to carry out the ROP test, which is mandated by standard protocol, while the baby was under their direct care and supervision from birth till he was 3 ½ months old, amounted to gross negligence by the Doctors, and deficiency of service by the Hospital. The consequential damage caused to the baby by not having conducted the mandatory ROP test, which led to the total blindess of the baby, has given rise to an actionable claim of negligence. [Para 11.4.16] [1228-E-F]
V. Krishnakumar v. State of Tamil Nadu (2015) 9 SCC
388 : [2015] 8 SCR 100 ; Jacob Mathew v. State of Punjab (2005) 6 SCC 1 : [2005] 2 Suppl. SCR 307 ; V. Kishan Rao v. Nikhil Super Speciality Hospital (2010) 5 SCC 513 : [2010] 5 SCR 1 – relied on Federation of Obstetrics & Gynaecological Societies of India v. Union of India (2019) 6 SCC 283 ; Ramesh Chandra Aggarwal v. Regence Hospital Ltd. & Ors. (2009) 9 SCC 709 : [2009] 14 SCR 424 ; Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 : [2009] 13 SCR 1 ; V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513 : [2010]
5 SCR 1 ; Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 : [2009] 9 SCR 313 ; Savita Garg v. National Heart Institute (2004) 8 SCC 56 : [2004] 5 Suppl. SCR 359 ;
Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330 : [2009]
9 SCR 889 ; Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, [1969] 1 SCR 206 ; Kusum Sharma v. Batra Hospital (2010) 3 SCC 480 : [2010]
2 SCR 685 ; S.K. Jhunjhunwala v. Dhanwanti Kaur, (2019) 2 SCC 28 ; Arun Kumar Manglik v. Chirayu Health and Medicare (P) Ltd. (2019) 7 SCC 401 : [2019] 3 SCR 281 ; Balram Prasad (2014) 1 SCC 384 : [2013] 12 SCR 30 ; Livingstone v. Rawyards Coal Co., (1880) LR 5 AC 25 (HL) ; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634 : [1996] 2 SCR 881 ; State of H.P. v. Jai Lal (1999) 7 SCC 280 : [1999] 2 Suppl. SCR 318 – referred to. Hucks v. Cole (1968) 118 New LJ 469 ; Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 ; Eckersley v. Binnie (1988) 18 Con LR 1 ; Bolitho v. City and Hackney Health Authority (1998)
1 AC 232 [1957] 1 W.L.R. 583, 587 ; Rogers v. Whitaker (1992) 109 Aus LR 625 ; Montgomery v. Lanarkshire Health Board [2015] UKSC 11– referred to.
Halsbury’s Laws of England 4th Edn., Vol. 26 pp. 1718
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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