The
Hon’ble Supreme Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9
SCC 221, case has preferred Bolitho test to Bolam test.
Bolitho
test: A legal test that modified the 1957 Bolam test, which the English
courts had been using to determine medical negligence by a doctor or nurse. In
Bolitho v City and Hackney Health Authority, 1997, Lord Browne-Wilkinson
restricted the boundaries of Bolam, stating
(1)
"The court should not accept a defence argument as being ‘reasonable’,
‘respectable’ or ‘responsible’ without first assessing whether such opinion is
susceptible to logical analysis”, and
(2)
"However, where there is a body of medical opinion which represents itself
as ‘reasonable’, ‘respectable’ or ‘responsible’ it will be rare for the court
to be able to hold such opinion to be other than represented”.
The
Supreme Court redefined medical negligence saying that the quality of care to
be expected of a medical establishment should be in tune with and directly
proportional to its reputation.
The
decision also says that the court should take into account patient’s legitimate
expectations from the hospital or the concerned specialist doctor.
In
the instant case we are of the considered view that there is negligence in the
treatment rendered to the Patient with respect to the time and manner in which
the Patient was shifted from the 3 floor ICU to the 12 floor ICU, the unexplained
cause for Bradycardia, which is not in accordance with what was laid down by
the Hon’ble Supreme Court in Savita Garg, the absence of medical record
specifying the treatment rendered to the Patient between 9 a.m. to 10.30 a.m.
in the ICU.
Having
regard to the fact that the Patient was in the Hospital for a period of 8
months; in a coma for a period of almost three years; the bills filed towards
medical expenses amounting to 16,93,010.00 (excluding the mediclaim amount of
3,75,000/-) and the expenses incurred post discharge, when the Patient was in a
coma, and also the mental agony suffered by the Patient’s family, the aspect of
restitutio in integrum, and the Patient’s age, we are of the view that awarding
an amount of 30,00,000/- (Thirty Lakhs) to be paid by the Hospital would meet
the ends of justice.
We
also award costs of 1,00,000/- (One Lakh) to be paid by both the Doctors
jointly and severally as we hold that ‘Duty of Care does not end with the
Surgery’.
In
the result, this Appeal is allowed in part and the order of the State
Commission is set aside and we direct the Hospital to pay an amount of
30,00,000/- (Thirty Lakhs) and costs of 1,00,000/- (One Lakh) to be paid by
both the Doctors jointly and severally. Time for compliance four weeks from the
date of receipt of a certified copy of this order, failing which the amount
shall attract interest @ 9% p.a. from the date of filing of the Complaint till
the date of realisation.
NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 101 OF 2016
(Against the Order dated 27/11/2015 in Complaint No. 87/2006 of the State
Commission Maharashtra) 1. PANKAJ R. TOPRANI & 3 ORS. Vs Bombay
hospital and others
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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