Research Paper Merciless discharge without advance notice amount to Deficiency in Service & Medical Negligence 1
Dr.Mukesh Yadav, M.D., MBA (HCA), PGDHOQM, LL.B., Dr.Pooja Rastogi, M.D.
Abstract Cases of medical negligence and professional negligence are increasing day by day in India. It can be attributed to low awareness of ethical regulations and commercialization of medical education and healthcare. In a recent case of professional negligence by doctor and hospital, State Consumer Dispute Redressal Commission (SCDR), Mumbai awarded compensation of more than 15 lacs with interest st @10% from year 2000, decided on 31 July 2015. Case involves many issues such as: Ethical issues, standard of care, discharge, follow up advise, professional negligence, medical negligence, professional misconduct, deficiency in service, compensation which needs discussion. Author has attempted to create awareness on the issue especially related to professional duties while discharging a serious patient of ESRD in need of Kidney Transplant for survival. Alleged violence by the patient against a nurse was mentioned as a ground for discharge, which cannot be proved during hearing before SCDRC. SCDRC, Mumbai referred various case laws to arrive at the judgment to awarded compensation which is reasonable in the fact and circumstances of the case. Various factors considered by the SCDRC in awarding compensation have been discussed in brief. Key Words: Discharge, Follow up Advise, Professional Negligence, Medical Negligence, professional misconduct, Deficiency in Service, Compensation, proforma parties Who-so-ever chooses his profession, assumes the obligation to conduct himself in accordance with its ideals. A physician should be an upright man, instructed in the art of healings. He shall keep himself pure in character and be diligent in caring for the sick; he should be modest, sober, patient, prompt in discharging his duty without anxiety; conducting himself with propriety in his profession and in all the actions of his life. [Regulations 1.1.1 & 1.1.2., Chapter I] 
Introduction: Whether doctor has right to choose patient or not? If yes, in what circumstances he can choose patient and in what not is domain of medical ethics. In India, the Medical Council of India framed regulations in this regard in the year, 2002. [R-1] Important provisions of Ethical Regulations, 2002 on the issue of duties of doctors are as follows:
B. Duties and responsibilities of the Physician in general: 1.1 Character of Physician
Maintaining good medical practice: ………………………….The Principal objective of the medical profession is to render service to humanity with full respect for the dignity of profession and man. Physicians should merit the confidence of patients entrusted to their care, rendering to each a full measure of service and devotion. [Regulations 1.2.1. Chapter I] 
A physician shall uphold the dignity and honour of his profession. The prime object of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration.
Corresponding Authors: 1
Professor & Head, Forensic Medicine Rama Medical College, Hapur, U.P. Email: [email protected]
Mob. No.8527063514 2 Professor & Head, Forensic Medicine School of Medical Sciences & Research, Sharda University, Greater Noida, U.P. DOR: 00.00.2015 DOA: 00.00.2015 DOI:
Duties of Physicians to their Patient
Whether doctor has Right to choose patient/Refuse patient/refer patient?
2.1 Obligations to the Sick Though a physician is not bound to treat each and every person asking his services, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission
titled as ‘Medical Negligence’ by Dr.P.D. Shenoy. Negligence on the part of a doctor is simply failure to exercise due care. Negligence constitutes following three ingredients so far as the consumer case is concerned: Doctor owes duty to take care of the patient. Doctor should not breach this duty of care. Otherwise, complainant has to suffer injury due to this breach. Medical negligence is not different thing as the doctor is service provider to the patient. [Para 9(A)] 
and the responsibility he discharges in the course of his professional duties. In his treatment, he should never forget that the health and the lives of those entrusted to his care depend on his skill and attention. A physician should endeavour to add to the comfort of the sick by making his visits at the hour indicated (i) to the patients. A physician advising a patient(ii) to seek service of another physician is (iii) acceptable, however, in case of emergency a physician must treat the patient. No physician shall arbitrarily refuse treatment to a patient. However for good reason, when a patient is suffering from an ailment which is not within the range of experience of the treating physician, the physician may refuse treatment and refer the patient to another physician. [Regulations 2.1. Chapter II] 
Issue of Professional Negligence:
2.4 The Patient must not be neglected: A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. Provisionally or fully registered medical practitioner shall not willfully commit an act of negligence that may deprive his patient or patients from necessary medical care. [Regulations 2.4. Chapter II] 
2.5 Engagement Obstetric case:
When a physician who has been engaged to attend an obstetric case is absent and another is sent for and delivery accomplished, the acting physician is entitled to his professional fees, but should secure the patient’s consent to resign on the arrival of the physician engaged. [Regulations 2.5. Chapter II]  Although present case is prior to notification of Ethical Regulations, 2002, but it is necessary to discuss these provisions so that physicians can be made aware of their existence and enable them to avoid such cases in future. Issue of duty, medical negligence, professional negligence, standard of care, Bolam Test, has been discussed by the State Consumer Dispute Redressal Commission (SCDRC), Mumbai in Para 9, 12 and 13. 
Issue of Medical Negligence: SCDRC observed that it is important and necessary to know and place on record what constitutes medical negligence before we proceed to deal with the subject. A doctor owes certain duties. SCDRC made reference to Book
SCDRC further observed that case of the complainant pertains not only to medical negligence but of professional negligence as well. It is necessary to elucidate as to what constitute professional negligence. Medical profession is considered to be the most pious profession wherein a doctor is placed only second to Almighty God because he renders humanitarian service though its objective is improvement of life of the people but it is a science of uncertainty and the art of possibility at the same time. [Para 9 (B)(i)]  Constituents of professional negligence are: To exercise a reasonable degree of skill and knowledge and a reasonable degree of care; To exercise reasonable care in deciding whether to undertake the case and also in deciding what treatment to give and how to administer that treatment; To extend his service with due expertise for protecting the life of the patient and to stabilize his condition in emergency situations; To attend to his patient when required and not to withdraw his services without giving him sufficient notice; To study the symptoms and complaints of the patient carefully and to administer standard treatment; etc. [Para 9(B) (ii)] The duties which a doctor owes to his patient are amply clear. The Hon’ble Apex Court has spelt out duties of a doctor in the matter of – Laxman Balkrishna Joshi vs. Trambak Bapu Godbole & Ors.,1969 . The Hon’ble Apex Court  held that “A person who holds himself out ready to given medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. A duty of care in deciding whether to undertake the case,
b) A duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. c) A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.”
Issue of Standard of Care and Duty of Doctor: SCDRC observed that we find it appropriate to bring on record laws laid down by the Hon’ble Apex Court to deal with alleged medical negligence. Hon’ble Supreme Court in celebrated case of – Bolam vs. Friern Hospital Management Committee – (1957)  – observed that “negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action.” Further, it is observed that “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.” Admittedly, negligence is an essential ingredient of the offence. Medical practitioner would be liable only when his conduct fell below that of the standards of a reasonably competent practitioner in his field.
Bolam Test Approved: Standards laid down in the case of Bolam  were reiterated by the Hon’ble Supreme Court in case of the - Jacob Mathew vs. State of Punjab and Anr. (2005) , followed in the case of – V. Kishan Rao vs. Nikhil Super Speciality Hospital and Anr. (2010). [Para 12] 
Authorities relied: Complainants had relied on the decision in the matter of -Parvatkumar Mukharjee vs. Ruby General Hospital and Anr.  decided by Hon.National Consumer Commission in respect of duty of noble profession as crystallized by various judgments. It was held that the patient must not be neglected, once having undertaken the case, physician should not neglect the patient, nor should he withdraw from the case without giving notice……..sufficiently long in advance of his withdrawal to them to secure another medical attendant. [Para 13]
Respondent Profile: 1)
Opponents No.1 (R-1): Dr.A.R. Kriplani, consulting nephrologist and in-charge of artificial kidney unit of R-5 hospital. 2) Opponent No.2 and 3: (R-2, R-3) entities attached to R-5. 3) Opponent No.4: (R-4) Trustees of Bombay Hospital and Research Centre (Charitable Trust) 4) Opponent No.5: (R-5) Bombay Hospital and Research Centre (Chairman, Medical Director) SCDRC, Mumbai observed that Complainants rightfully relied on this authority as the ratio is applicable to the complainants’ case since the R-1 being a professional chose to withdraw by giving merciless discharge and that too without advance notice and reply whatsoever to the written request of the complainants for retention of patient. [Para 13(I)]  R-1, R-4 & R-5 has relied on various case laws/judgments [8-13]. SCDRC observed that all these judgements/authorities relied upon by the opponents are not applicable to the case as facts and circumstances differ. [Para 13]
Brief Facts of the Case: Deceased Shri Yogesh Kumar [patient] son of the complainant was employed as constable in CRPF and was working with Custom Department of Govt. of India at Jaipur. He was suffering with disease of kidney. Yogesh was covered under C.G.H.S. Dy.Director, Central Govt. Health Scheme, Jaipur referred Yogesh Kumar for transplant of kidney to R-5 hospital. C-1 first approached along with his ailing son to R-5 on 06.04.1997 where he met opponent no.1 doctor for further treatment and management of the patient. On advice of opponent no.1 complainant managed to get advance amount of Rs.148000/- for treatment of the patient from CGHS, Jaipur. Simultaneously, as advised by the R-1, kidney donor Shri Raj Kumar was kept ready and was brought to R-1 at Bombay Hospital to facilitate transplant of kidney as per prescirbed procedure. On receipt of the demand draft, R-1 undertook to continue to treat the patient. Patient was admitted in R-5 hospital first time in general ward and then paying ward under the care and treatment of R-1. [Para 2(i)] On first occasion the patient was admitted on 08.04.1997 and discharged on 16.04.1997 in free ward. Second time admitted on 02.06.1997 and discharged on 05.06.1997. Third admission was on 21.06.1997 and discharged on 24.06.1997. While admitting and discharging the patient on these occasions, R-1 advised haemodialysis twice/thrice a week.
Thus, R-1 justified his action to discharge the patient on 31.12.1997 on the ground of alleged misbehaviour of the patient and claimed no medical negligence leading to deficiency in service as alleged. On morning of 31.12.1997, junior nurse, namely, Rashmi Palav, while she was on routine round to check up temperature, blood pressure and pulse of the patient, she was slapped by the patient, Yogesh Kumar Soni. Said nurse immediately lodged a complaint in the ward and in turn on knowing the incident he proceeded immediately to the patient to enquire about the incidence. The patient acknowledged the incidence stating that the staff nurse was waking him up when he wanted to sleep longer. On consulting the hospital and nursing staff, this opponent concluded that behaviour of the patient was unacceptable though he was of sound mind and there was no mental derangement to mitigate his behaviour. [Para 4(A)(iii)]
Issue of Dispute related to Medical Ethics: However, last admission of the patient on 24.12.1997 with discharge on 31.12.1997, no advice whatsoever was recorded in the discharge card except certain medical prescriptions. The patient was discharged by the R-1 on the complaint of an attending staff nurse for allegedly slapping her by the patient early in the morning of 31.12.1997. C-1 urged in writing on the day of discharge and thereafter on 03.01.1998 to continue the patient under the attention and medical care of the R-1 as the patient’s condition was deteriorated and discharging in such a critical condition on alleged flimsy ground was against the medical ethics. However, written requests though delivered to the R-5’s office but to the dismay of the complainant, patient was discharged on 31.12.1997 and that too without any follow up and medical advice. [Para 2(i)]  Thereafter, the patient along with his parents was forced to stay in Dharmashala in Mumbai and thereafter complainants took the patient to AIIMS Hospital at Delhi for treatment. However, since the patient was not accommodated at AIIMS, the complainant in such circumstance proceeded to Sir Gangaram Hospital at Delhi with patient where he was put on dialysis. Thereafter, on discharge from this hospital, complainant had returned along with patient to Jaipur on 04.02.1998 and managed to admit him to Santoka Durlabhaji Hospital. [Para 2(ii)]
Issue of Cause of Action: However, the patient died on 08.02.1998 in the said hospital due to “cardiac arrest due to ESRD – septicamiea – hepatitis B positive of case of chronic renal failure”. [Para 2(ii)]
Allegations: The complainant has attributed death of their son to negligent attitude of opponents more particularly R-1 and R-5 for forceful discharge on 31.12.1997 on alleged flimsy incidence which costs them the life of their son. [Para 2(ii)]
Version of Respondents regarding Ground for Discharge: R-4 & 5 reiterated the version of R-1 about the incidence of slapping by the patient to the staff nurse, Ms.Rashmi Pallav and stated there is admission of incidence by the patient (since deceased). The patient was finally discharged on 31.12.1997 due to misbehaviour of the patient with the staff nurse.
Discussion on relevant issues: Question for Consideration before SCDRC:
Whether R-1 has discharged his professional obligation to patient? SCDRC, Mumbai replied in negative SCDRC heard extremely and perused record/documents relied upon by parties, million dollar question for consideration is whether opponent no.1 has discharged his professional obligation to patient. SCDRC replied in negative for the finding recorded as follows: There was no dispute about repeated admission and treatment by an under the supervision of the R-1 in the R-5’s hospital. Patient was admitted on four different dates as narrated in Table No.1  and finally discharged on 31.12.1997. Except in the last discharge report R-1 diligently advised the patient to follow up with haemodialysis initially twice and then thrice in a week on OPD basis with certain medical prescriptions. However, the last discharged report i.e. for a period of 24.12.1997 to 31.12.1997 is “sans medical advice for follow up except medical prescription.”
Issue of Permission from Competent Authority for Kidney Transplant: It was not in dispute the care and treatment exercised by the opponents during hospitalization period. Patient was obviously referred for kidney transplantation and complainant kept ready the kidney donor. At the instance of R-1 permission from the competent
authority for transplant was received by R-5 hospital. Obviously, the patient was away from the hospital during the validity period of permission and opponents made no efforts to establish contact with the complainants to get the patient for transplantation. Finally, the patient appeared and approached the opponents on 24.12.1997 i.e. almost after 6 months from the date of earlier discharge on 24.06.1997. By that time, the first donor changed his mind and withdrew from donating the kidney. Even in such circumstances the complainant succeeded to find another donor, but there was hardly a time to complete the medical procedure to finalize and obtain permission of the authorities.
Issue of Medical Record: There was no record to substantiate that the R-1 and R-5 have ever made any attempt to establish the contact with the complainants who were away in their native land to intimate the D.M.E.R. permission to transplant the kidney within the valid period as permitted therein. Complainant never received copy of that permission, therefore the allegation that the complainants were aware of the permission was totaling unfounded and unsustainable. Action of the R-1 and R-5, per se, amounts to deficiency of service. [Para 14(i)]
No Documentary Misbehavior:
Opponents failed to substantiate by adducing documentary evidence to demonstrate beyond reasonable doubt the incidence of misbehaviour of the patient with staff nurse as there is no internal enquiry report nor FIR was lodged about the incidence, therefore the ground on discharging the patient due to misbehaviour of the patient is unsustainable and unacceptable. Therefore, the arguments advanced on behalf of the opponents in this behalf were watered down. Effects of opponents to fortify occurrence of incidence of alleged misbehaviour and admission thereof by patient was falsified for want of tangible evidence on the ground of misbehaviour is against well laid down principles of medical and professional ethics and such an arbitrariness must not find place in civic society. [Para 14(ii)]
Issue of Breach of Professional Duty & Professional Misconduct: R-1, though, undertaken duty to treat the patient, but breached his duty to extend his services with his expertise for protecting the life of the patient and to stabilize his condition by forcefully discharging the patient when his care
and attention to protect the life of the patient was very much needed. R-1 when required to attend his patient failed to do so and opted to withdraw his services simply because of the alleged incidence of slapping the staff nurse. Conduct of the R-1 in doing so amounts to breach of his legal duty to exercise due care and failed to apply his own judgment/expertise by retaining the patient to continue the treatment to protect his life and to stabilize his condition in such a deteriorating state of patient. R-1 abruptly withdrew his services that too without sufficient notice as decision was made final on 31.12.1997 after alleged misbehaviour of patient. [Para 14(iii)]  SCDRC, Mumbai observed that having carefully gone through the facts of the case and the documentary evidence laid by the parties and circumstances for forced discharge of the patient without follow up advice, we are of considered opinion that R-1 being an eminent professional in his field failed to assess and ascertain the circumstances before making up his mind to discharge the patient, though having undertaken to treat the patient. He preferred to withdraw his services when the patient needed the most which amounts to medical and profession negligence as well nothing short professional misconduct.
Issue of Discharge Report contents: The last discharge report i.e. from 24.12.1997 to 31.12.1997 does not bear medical advice for follow-up though argued to contrary by the R-1. This is a serious omission on part of the R-1, who had undertaken to treat the patient. Therefore, the complainants were left in wilderness as to what medical treatment was required to be followed up in the best interest of the patient whose condition was deteriorating. This is nothing short of professional negligence leading to deficiency of service on the part of R-1. Action of R-1 is not in conformity with the law laid down by the Hon.Apex Court and as observed by SCDRC in para no.12 and 13 of the body of this order dated 31.07.2015. [Para 14(vi)] 
Issue of Expert Opinion: SCDRC further observed that we have carefully gone through the expert evidence of Dr.Alen Fernandese Almeidia on behalf of the opponents. In no unequivocal word, this expert put down his opinion in para (3)-t of his affidavit which reads as follows: The procedure of A-V Fistula is normally carried out on an OPD/Day Care basis
depending upon the patient’s then prevailing medical setting. Patient is only required to follow up with the treating doctor/operating doctor for periodical check ups to enable the treating doctor/operating doctor to gauge that the A-V Fistula has matured. On going through this opinion, the patient was required to follow up with attending doctor periodically to guage that the A.V. Fistula was matured or not. A.V. Fistula procedure carried out on the patient on 30.12.1997 to facilitate MHD was fully within knowledge of the R-1 and was carried out on his advice. As per his own expert witness, the patient was required to be followed-up to ascertain the status of A-V Fistula operation as the treating doctor was required to check the same. In spite of this, R-1 without going into medical condition of the patient and the treatment/follow-up required, discharged to detrimental of the health of the patient and that too without medical advice recording in the last discharge report. The action of the R-1, (who is well known for his expertise) and standing in his field discharged the patient and withdrew his services when badly needed amount to ‘professional negligence’ as held by the Hon. National Consumer Commission in the matter of Parvatkumar Mukharjee vs. Ruby General Hospital and Anr., 2005 . Due to withdrawal of his service by discharging the patient in deteriorating condition and paying no heed to the fervent urge of the complainants to retain the patient cost the complainants life of their son since within a period of 5 weeks, the patient died. Thus, we hold that R-1 failed to extend his services to protect the life of his patient and stabilize his condition when the patient needed the most. [Para 14 (v)] 
ground that he withdrew his services to the patient when badly needed on the flimsy grounds. On this background, it was unbecoming on the part of the R-1 as an eminent medical professional to discharge the patient on basis of the vague and unverified information. Therefore, there is clear deficiency in service on the part of the R-1 and R-5. [Para 15(ii)] 
Deficiency in service of R-5: Issue of Medical Records: per se negligence R-5 failed to demonstrate by adducing the evidence to establish misbehaviour of the patient who was in a precarious health. On top of the issues, R-5 miserably failed to communicate permission received from D.M.E.R. to transplant the kidney of patient and allowed the permission to get lapsed. This is a serious issue which amounts to per se negligence on the part of the R-5. No due procedure has been followed to establish alleged incident of misbehaviour. Therefore, R-5 is grossly negligence in dealing with patient’s case leading to deficiency in service. R-5 too is deficient in service as no due procedure was followed to establish the alleged incident of patient’s misbehaviour.
Issue of Compensation: Having considered the case in its entirety, SCDRC, Mumbai held medical and profession negligence against R-1 and R-5 as the initial burden of establishing medical negligence leading to deficiency in service has been duly discharged by the complainants. Onus shifted to the opponents to disprove the same has not been discharged. Therefore, now the question before SCDRC was about awarding compensation to the complainants.
Issue of Relationship between Respondents & Deficiency in Service of R-1: Therefore, R-1 is deficient in service due to profession/medical negligence on his part. R-2, R-3 and R-4 are proforma parties relating to the entity of the R-5. Therefore, effectively R-1 and R-5 are the main opponents against whom the complaint has been proceeded and considered. R-1 by way of internal arrangement attached to R-5 who, offers his professional services in the premises of R-5 hospital and receives fees/charges from patient through R-5. SCDRC Bench observed that we are holding R-1 negligent and deficient in service not on the ground of alleged nexus of forceful discharge with death of the patient, but on the
Factors considered by the SCDRC:
SCDRC considered following factors before awarding compensation: Age on the date of cause of action [26 Years] Job & Income from Salary [Constable in CRPF] Age of superannuation, Marital Status & Dependent siblings Profile and sufferings of Complainants (Parents), Reasonable rate of interest Complainants, who were very senior citizen on the date of disposal of case, have lost back-bone of the family in death of their son. It was also reported that the patient was married and had one daughter.
However, according to the complainants, the marriage was against the family tradition, wife of the patient is estranged. Complainants were put to immeasurable amount of mental agony coupled with trauma and stress, therefore, the complainants deserve to be suitably compensated. [Para 15(i)] 
Summary and Conclusions: To avoid such types of professional negligence in circumstances where the patient or their attendant are non-cooperative and aggressive or violent in behavior, a proper complaint mechanism and/or grievance redressal mechanism in each hospital should be in existence and a proper inquiry in this regard should be conducted after constitution of an enquiry committee. Principles of natural justice should be followed during inquiry. Patient and/or their attendant should be informed in writing with receipt of the same. Patient record should be maintained of such incidences as and when reported during the course of treatment. There should be record of any such incidence, reporting mechanism known to all concerned, based on the findings and recommended of enquiry committee prior notice can be issued for making alternative arrangement.
3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.
The Indian Medical Council (Professional Conduct, Ethics & Etiquettes) Regulations, 2002. [Online] [Accessed: 2015 Aug 6]. Available from: URL:http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsR egulations2002.aspx Shashikant A. Kulkarni, Member, Narendra Kawde, Member. Lallu Lal S/O.Late Shri Gendilal and Anr. vs. Dr.A.L. Kriplani and Ors., CC No.CC/00/318, SCDRC, Maharastra, Mumbai, Date of Judgment: 31 July, 2015. [Online] [Accessed: 2015 Aug 5]. Available from:URL:http://184.108.40.206/ncdrcrep/judgement/210150731150704853 CC%2000%20318.htm Laxman Balkrishna Joshi vs. Trambak Bapu Godbole & Ors. – AIR 1969 SC 128. Bolam vs. Friern Hospital Management Committee – (1975) 2 All ELR 118 Jacob Mathew vs. State of Punjab and Anr. – (2005) 6 SCC 1. V. Kishan Rao vs. Nikhil Super Speciality Hospital and Anr. – (2010) 5 SCC 513. Parvatkumar Mukharjee vs. Ruby General Hospital and Anr., Original Petition No.90/2002 Date of Judgment: 25.04.2005. Rameshchandra Sharma vs. Udhamsingh Kamal, [C.A.No.3119/1997] decided on 12/10/1999 by the Hon.Apex Court. State Bank of India vs. B.S.Agriculture Industries [Civil Appeal No. 2067/2002] decided on 20/03/2009 by Hon.Apex Court. Union of India vs. Swanand Engineers and Anr. [Under arbitration Act No.2 of 2000 Date of Judgment: 07.10.2006 – Bombay High Court Handa Nursing Home vs. Ram Kali (since deceased through LRs), I  CPJ 700 (NC) decided on 30.01.2015. NCDRC Chand Kishor Rajput vs. Sood Stone Clinic – I (2015) CPJ 101 (NC) – decided on 07.10.2014. C.P.Shrikumar (Dr.) vs. S.Ramanujam – 2009 (7) Supreme Court Cases 130 – G.S. Singhvi, J., Asok Kumar Ganguly, J. Dr.V.N. Shrikhande vs. Mrs.Anita Sen Fernandese, Civil Appeal No.8983/2010, Date of Judgement: 20th Oct 2010. [Online][Accessed: 2015 Aug 7]. Available form:URL:http://judis.nic.in/supremecourt/imgst.aspx?filename=37000 Dr.Mukesh Yadav. Editorial: Discovery Rule and Medical Negligence. J Indian Acad Forensic Med, (2010) Vol.32, Issue 4: 281-282. [Online]
[2015 April 30]. Available form: URL:http://medind.nic.in/jal/t10/i4/jalt10i4p281.pdf O.K. Gaur vs. Chothiram Hospital & Research Centre [First Appeal No.447/2010] Date of Judgment: 09.03.2012. NCDRC URL:http://220.127.116.11/ncdrcrep/judgement/00120312161348711FA44 72010.htm Dr. B.S. Chauhan, J., S.A. Bobde, J. Dr.Jagamitra Sen Bhagat vs. Director Health Services, Haryana, Civil Appeal No.5476/2013, Date of Judgment: 11th July 2013. [Online][Accessed: 2015 Aug 7]. Available form:URL:http://judis.nic.in/supremecourt/imgst.aspx?filename=4056
Table No.1 Chronology of Events in a Professional Negligence Case
Sr. No. 1 2
Patient first approached R-1 On first occasion the patient was admitted and discharged in free ward
Second time admitted and discharged on 05.06.1997.
Earlier discharge: Permission for Kidney Transplant was valid for a period from:
A.V. Fistula procedure carried out on the patient on………. to facilitate MHD Date of Forceful Discharge: (Period 24.12.1997 to 31.12.1997) C-1 urged in writing on the day of discharge and thereafter on ………… to continue the patient under the attention and medical care of the R-1 Date of Cause of Action (Date of Death): The first complaint was filed in Rajasthan State Commission on Date of Complaint before SCDRC, Mumbai: Date of Judgment, SCDRC, Mumbai:
02.06.1997 05.06.1997 24.06.1997. 08.08.1997 to 07.08.1997 30.12.1997
7 8 9 10 11 12
Heads of Claim Lump-sum claim
Heads of Claim Cost of complaint
Amount in Rs. 25000.00
Compensation claimed and Awarded Mental Trauma
1450000.00 Interest 100000.00
08.02.1998 05.02.2000 18.07.2000 31.07.2015
Who will pay?
Table No.2 Compensation Claimed and Awarded Amount in Rs. Rs.1450000.00
Sr. No. 1
08.04.1997 & 16.04.1997
OP No.1-5 jointly and severally
Remarks Interest @18% p.a. claim included estimated salary of Rs.1100000/-. Remarks Breakup will be decided by the parties themselves Interest @10% th from 5 Feb 2000
3 Note: Amounts ordered to be paid in operative para 2 and 3 shall be paid within a period of 60 days from the date of this order. On failure to comply, enhanced rate of interest @13% p.a. shall be payable on the amount ordered to be paid effective from 05.02.2000 till realization. [Para 15(4)] Complainants shall furnish indemnity bond to the extent of share of daughter-in-law and granddaughter and to execute the same before the Registrar [Legal] of this State Commission prior to compliance of this order by the opponents. [Para 15(5)]