NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member
Barnali Chowdhury and Anr. – Complainants
versus
Woodlands Medical Centre
Ltd. and Ors. – Opp. Parties
Consumer Case No.129 of 2010
Decided on 3.4.2023

Headnote:

(A) Consumer Protection Act, 1986 – Section 21[Consumer Protection Act, 2019 – Section 58] - Services – Medical Negligence -Principle of Vicarious Liability - When attributable – Res Ipsa Loquitor – Applicability discussed - The “things speak on its own” the principle of “Res Ipsa Loquitor” squarely applicable to the case on hand. There is no need go to great lengths to prove the negligence. In the instant case, upon hearing the arguments form OPs, it seems the OPs are shirking way from each of their responsibility, but they are trying to shift the blame on one and another – On merits, it was neither an inadvertent error nor an accident in the instant case. The cotemporaneous medical record and evidence of nurse clearly prove that OP-3 did not check the medication details before administration. OP-3 prepared the Vincristine, performed LP and injected the drug intrathecally, under the impression that it was injection Arabinocide – Cytarabine - OP-2 and 3 are responsible for not adhering to MCP- 842 Protocol, thus they can’t escape from the liability. The role of nurse was limited. As per chemotherapy protocol the chemo dose was to be prepared and drawn by the Oncologist. There was no allegation of any infrastructure or other lapse on the part of OP1 hospital where the patient has been successfully administered treatment on previous occasions. It is also an admitted fact that OP2 was in-charge of the treatment which was to be done as per Protocol MCP-842 and if not followed, both doctors are liable for the consequences. However, even though the OP1 had no role to play in the entire treatment aspect, is vicariously liable here - The management of a hospital not only involves providing services of doctor or other staff, but also to ensure that proper treatment is provided to the patient. In the present case, nothing is on record that the nurse was not a trained or not for Chemotherapy. It is not evident the hospital has system checks or Standard Operating Procedures (SOP) for Chemotherapy and to prevent such incidents - The hospital (OP-1) cannot escape its vicarious liability for the medical negligence that has been meted out in the present case - The contemporary wisdom is that doctors should focus on patient care and the managers with administrative background shall focus on the day-to-day business of a hospital. The hospital as an organization in most cases today is run not by the doctors but by the administrators. These administrators dominate and dictate medical practices in majority of these hospitals. The conflict between quality care and financial success has heralded more complexity in the management of the patients. Hospital administrators are largely concerned with generating revenue by imposing deadlines/targets and pressurizing doctors. Thus in such situations, if a case of medical negligence arises, the principle of vicarious liability shall apply. [Paras 3 to 9]

(B) Consumer Protection Act, 1986 – Section 21[Consumer Protection Act, 2019 – Section 58] - Services – Medical Negligence – Failure of Duty Care – Glaring Deficiencies - The OP-2 as a Medical Oncologist did not follow the Instructions prescribed by the TMH for Chemotherapy. He was not present during chemotherapy, which was against the mandatory protocol. And secondly, the OP-3 blindly administered Vincristine intrathecally; it was utter failure, carelessness and dereliction in the duty of care - There are glaring deficiencies visible from the hospital (OP-1). There are no safety guidelines for treatment of cancer patients and about Chemotherapy. No documentation, no Standard SOPs for the Care of the patient receiving Cytotoxic or Biologic Agents. The hospital has not maintained records properly. For Intrathecal Chemotherapy only staff who have been appropriately trained and accredited, and whose names appear in the appropriate register are permitted to have involvement in the prescribing, dispensing, issue, checking and/or administration of intrathecal chemotherapy appropriate to their role and training. There are several procedural lapses on the part of OP-1. The Intrathecal drugs were not packaged separately for delivery to the ward in designated containers and clearly labeled on the outer container “For intrathecal use” as is required as per International recommendations. The hospital and the treating doctors are expected to be aware of unexpected errors - The hospital made fruitless and absurd attempt in its defense that it was a day care procedure and the responsibility lies with the concern doctors. It should be borne in mind that the hospital had displayed its infrastructure, facilities, name of specialist, departments and other facilities etc. through the brochures, website and advertisements. Therefore, the hospital apart from vicarious liability, is also liable for deficiency, failure of duty of care and unfair trade practices. [Para 9].

(C) Consumer Protection Act, 1986 – Section 21[Consumer Protection Act, 2019 – Section 58] - Services – Medical Negligence – Compensation – The victim needs to be compensated for financial loss caused by the doctor’s/hospital’s negligence, future medical expenses, and any pain and suffering endured by the victim. By no stretch of imagination, the court should award a paltry sum for gross negligence, and vice versa exemplary compensation need not be awarded in case of slight or normal negligence - Court requires to determine just, fair and reasonable compensation on the basis of the income that was being earned by the deceased at the time of her death and other related claims on account of death of the wife of the claimant - In many cases, both doctors and the hospitals have been held responsible for paying compensation. In majority of the situations, an individual doctor(s) may not be in a position to pay the huge compensation (in crores of rupees) until the hospitals are also made party in the litigation – thus, it was the case of Res Ipsa Loquitor - Thus, conclusively determine ‘deficiency’ as well as ‘unfair trade practice’ on the part of the hospital - OP-1, a multispecialty tertiary care hospital of which the highest standard of essential infrastructure and patient’s care, protocols and management was expected but which it failed to provide. The medical negligence is conclusively attributable to both the doctors (OP-2 & 3), however the negligence of Anaesthetist (OP-3) is writ large – Also, There is no straight jacket formula for award of compensation, it is difficult to quantify the value of human life in monetary terms, Accordingly, the total amount of Rs.60 lakh as compensation awarded to the Complainants. [Paras 10 and 11].

Result: Complaint allowed.