2006 (3) CPR 270
DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Hon’ble Mr. Justice J.D. Kapoor, President & Ms. Rumnita Mittal, Member
S.C. Mathur & Ors.—Complainants
versus
All India Institute of Medical Sciences & Ors.—Opposite Parties
Complaint Case No. C-268 of 1995
Decided on 8.8.2006

IMPORTANT POINT
The Doctor of Govt. Hospital AIIMS is not liable for medical negligence to LR’s of deceased patient only. Govt. Hospital is
limitedly liable on ground of administrative negligence in the present case.
[Editorial Note : State Commission has taken long ten years in deciding present complaint. Justice delayed is justice denied, if any]

Headnote:(i)Consumer Protection Act, 1986 — Sections 2(1)(g) r/w 2(1)(o) — Deficiency in medical service — Heart attack — Baloon angiography done by a very junior doctor — Rashness — Cardiac arrest — Not putting patient on heart and lung machine immediately — O.P. taking 30 minutes for what was to be done in 3 to 4 minutes — Blood supply to brain stopped — Brain damaged — Resulting in death due to dead brain — Deficiency in service proved — Manifest medical negligence while treating heart patient —

       Rs. 2 lachs compensation awarded.(Paras 11, 24, 25, 46)

       Held: In our view if the patient dies or suffers injuries due to the negligence of the doctor at the Government Hospitals, health centres and dispensaries the Government Hospital, Health Centre or Dispensary alone is liable, for compensating the patient or his legal heirs.(Para 44)

       On the anvil of aforesaid criterion as to the liability and as to the medical negligence, we hold OP-AIIMS who runs hospitals for the treatment of patients alone guilty for limited medical negligence that the deceased should have been put to heart and lung device within four minutes whereas the members of the team due to being busy somewhere else in the emergency took more time and as a result, the deceased had suffered damage to brain resulting in her death and award lump sum compensation of Rs. 2 lachs inclusive of cost of proceedings.(Para 46)

       (ii)Consumer Protection Act, 1986 — Section 2(1)(g) — O.P.-All India Institute of Medical Sciences — Whether also guilty for medical negligence? (Yes, for limited medical negligence in the nature of administrative negligence).

       Held: For every patient, life is important. Any amount of negligence particularly administrative negligence holds the service provider liable to compensate the consumer as it amounts to deficiency in service which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.(Para 26)

       (iii)Consumer Protection Act, 1986 — Section 2(1)(g) — Medical negligence — Kinds — Liability — Tests.

       Held: While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are:

       (i)That the guilty doctor should be shown to have done 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.

       (ii)Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.(Para 21)

       Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).(Para 22)

       To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:

       (i)Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?

       (ii)Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?

       (iii)Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was up to the percentage of failures?

       (iv)Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?

       (v)Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?

       (vi)Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?

       (vii)Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency? (Para 23)

       (iv)Consumer Protection Act, 1986 — Section 2(1)(g) r/w 2(1)(o) and 3 — Medical services — Negligence in Govt. Hospitals — Applicability of C.P. Act to Govt. Hospitals — Criteria laid down in Indian Medical Association case summarized (See Para 36).

       (v)Consumer Protection Act, 1986 — Section 2(1)(d)(ii) — AIIMS Act, 1956 — Section 14 — Relationship between complainant and O.P.-AIIMS — Whether of consumer and service provided? (Yes).(Paras 27, 30, 33, 37 and 38) (See also Para 45).

       Result : Complaint partly allowed accordingly.