Dr KK Aggarwal
Earlier this week, a case of
gross medical error from Darbhanga Medical College Hospital
was reported where an orthopedic doctor plastered the wrong hand of the boy who
fell from a mango tree. The 7-year-old boy had fractured his left hand, but the
plaster cast was put on his right hand.
When I read this story, few
questions arose in my mind.
· Is
this an error?
· Is
it gross error or a never event?
· Should
the patient be given compensation?
· Should
the doctor be suspended?
My opinion: It is a never
event but has not damaged the limb in question. It’s a never event and a fit
case of compensation to the patient. We have professional indemnity insurance
to cover for such mishaps. If it goes to medical council, it is not a
fit case for suspension of license.
Applicable laws
This is
a medical error and can be classified as a ‘never event’ i.e. event
that should never occur under any circumstance. Never events are defined as
adverse events that are serious, largely preventable, and of concern to both
the public and health care providers for the purpose of public accountability.
They are usually a direct result of a negligent action and no trial
of expert’s evidence is necessary
The US National Quality
Forum has defined 29 never events segregated into seven categories:
surgical, product or device, patient protection, care management,
environmental, radiologic, and criminal.
In M/S. Spring Meadows
Hospital & Anr vs Harjol Ahluwalia 25 March, 1998, the Supreme Court
said “Gross medical mistake will always result in a finding
of negligence. Use of wrong drug or wrong gas during the course of
anaesthetic will frequently lead to the imposition of liability and in
some situations even the principle of Res ipsa loquitur can be applied.”
The apex court in Martin F.
D' Souza vs Mohd. Ishfaq on 17 February, 2009 said “For instance, he
would be liable if he leaves a surgical gauze inside the patient after an
operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra
& others, AIR 1996 SC 2377 or operates on the wrong part of the body, and
he would be also criminally liable if he operates on someone for removing an
organ for illegitimate trade.”
In Indian Medical Association
vs. V.P. Shantha 1995(6) SCC 651 (vide para 37) it has been held that the
following acts are clearly due to negligence: (i) Removal of
the wrong limb; (ii) Performance of an operation on the wrong patient; (iii)
Giving injection of a drug to which the patient is allergic without looking
into the out-patient card containing the warning; (iv) Use of wrong gas during
the course of an anaesthetic, etc.
This is not
gross negligence. “In Dr. Suresh Gupta vs. Government of N.C.T. of
Delhi and another AIR 2004 SC 4091, the appellant was a doctor accused
under Section 304A IPC for causing death of his patient. The operation
performed by him was for removing his nasal deformity. The Magistrate who
charged the appellant stated in his judgment that the appellant while
conducting the operation for removal of the nasal deformity gave incision in a
wrong part and due to that blood seeped into the respiratory passage and
because of that the patient collapsed and died. The High Court upheld the order
of the Magistrate observing that adequate care was not taken to prevent seepage
of blood resulting in asphyxia. The Supreme Court held that from the medical opinions
adduced by the prosecution the cause of death was stated to be `not introducing
a cuffed endotracheal tube of proper size as to prevent aspiration of blood
from the wound in the respiratory passage.' The Supreme Court held that this
act attributed to the doctor, even if accepted to be true, can be described as
a negligent act as there was a lack of care and precaution. For this
act of negligence he was held liable in a civil case but it cannot be
described to be so reckless or grossly negligent as to make him
liable in a criminal case. For conviction in a criminal case
the negligence and rashness should be of such a high degree which can
be described as totally apathetic towards the patient…” (Martin F. D' Souza
vs Mohd. Ishfaq on 17 February, 2009)
In Nizam’s Institute
of Medical Sciences vs Prasanth S.Dhananka & Ors on 14 May, 2009,
the Apex court said, “30. Mr. Tandale has, however, relied
on Indian Medical Assn. vs. V.P.Shantha & Ors. (1995) 6 SCC
651, and in particular on the following observations:
It has been urged that
proceedings involving negligence in the matter of rendering services
by a medical practitioner would raise complicated questions requiring
evidence of experts to be recorded and that the procedure which is followed for
determination of consumer disputes under the Act is summary in nature involving
trial on the basis of affidavits and is not suitable for determination of
complicated questions.
It is no doubt true that
sometimes complicated questions requiring recording of evidence of experts may
arise in a complaint about deficiency in service based on the ground
of negligence in rendering medical services by
a medical practitioner; but this would not be so in all complaints
about deficiency in rendering services by a medical practitioner. There
may be cases which do not raise such complicated questions and the deficiency
in service may be due to obvious faults which can be easily established such as
removal of the wrong limb or the performance of an operation on the wrong patient
or giving injection of a drug to which the patient is allergic without looking
into the outpatient card containing the warning (as in Chinkeow v.
Government of Malaysia (1967) 1 WLR 813 P.C.) or use of wrong gas during the
course of an anesthetic or leaving inside the patient swabs or other items of
operating equipment after surgery. One often reads about such incidents in the
newspapers. The issues arising in the complaints in such cases can be
speedily disposed of by the procedure that is being followed by the Consumer
Disputes Redressal Agencies and there is no reason why complaints regarding
deficiency in service in such cases should not be adjudicated by the Agencies
under the Act. In complaints involving complicated issues requiring recording
of evidence of experts, the complainant can be asked to approach the Civil
Court for appropriate relief. Section 3 of the Act which prescribes
that the provisions of the Act shall be in addition to and not in derogation of
the provisions of any other law for the time being in force, preserves the
right of the consumer to approach the Civil Court for necessary relief. We are,
therefore, unable to hold that on the ground of composition of the Consumer
Disputes Redressal Agencies or on the ground of the procedure which is followed
by the said Agencies for determining the issues arising before them, the
service rendered by the medical practitioners are not intended to be
included in the expression 'service' as defined in Section 2(1)(o) of
the Act.”
Dr KK Aggarwal
Padma Shri Awardee
President Elect Confederation of
Medical Associations in Asia and Oceania
(CMAAO)
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of
India
Past National President
IMA
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