Health ministry issues Advisory to all States/UTs over assault on doctors

 Dr KK Aggarwal

Answer of the Minister of State in the Ministry of Health and Family Welfare (Shri Ashwini Kumar Choubey) Question No. 3253 for 12.07.2019 regarding "Assaults on Doctors".

“(a) & (b): Yes, incidents of strike by doctors because of alleged assault on doctors on duty in various parts of the Country have come to the notice of the Government.

As per Constitutional provisions, ‘Health’ and ‘Law & Order’ are State subjects. Therefore, the concerned State/UT Government are required to take measures to prevent such incidents under the appropriate legal framework applicable in the respective State/UT. Details of such cases is not maintained centrally.

(c): As per the information received from IMA, IMA had appealed for withdrawal of non essential services on 17th June, 2019 from 6:00 AM to 6:00 AM next day, as a token protest. The emergency services and critical services were unaffected.

(d) to (f): Union Ministry of Health & Family Welfare has issued an advisory to all States/UTs to consider immediate measures for inculcating an effective sense of security among the doctorson duty, as under:

        i.            Security of sensitive hospitals to be managed by a designated and trained force,

      ii.            Installation of CCTV cameras and round the clock Quick Reaction Teams with effective communication/security gadgets particularly at Casualty, Emergency and areas having high footfalls, iii. Well-equipped centralized control room for monitoring and quick response,

    iii.            Entry restriction for undesirable persons,

    iv.            Institutional FIR against assaulters,

      v.            Display of legislation protecting doctors in every hospital and police station,

    vi.            Appointment of Nodal Officer to monitor medical negligence,

  vii.            Expeditious filling up of vacant posts of doctors and para medical staff in hospitals/Primary Health Centres to avoid excessive burden/pressure on doctors and to maintain global doctor-patient ratio,

viii.            Better infrastructural facilities and medical equipment and provision of extra monetary incentive for the doctors and para medical staff serving in hard/remote areas as compared to major and metro cities with better career prospects, etc.

Government has constituted a Committee to examine various aspects of a uniform legislative framework to address the issue of assault on clinical establishments and doctors on duty.”

The above answer is in response to the Unstarred Question No. 3253 admitted by the Lok Sabha for 12.07.2019 regarding "Assaults on Doctors" raised by 10 MPs: Shri Prasun Banerjee; Shri Khagen Murmu; Shri Bhartruhari Mahtab; Shri Vinod Kumar Sonkar; Shri Syed Imtiaz Jaleel; Shri Rahul Ramesh Shewale; Dr. Sukanta Majumdar; Shri BB Patil; Shri Asaduddin Owaisi; Shri Raja Amareshwara Naik.

Will the Minister of Health and Family Welfare be pleased to state:

a.      whether assaults on doctors and hospital staff have been reported in various Government hospitals across the country including recent incidents in West Bengal;

b.      if so, the details of such cases reported during the last three years, hospital and State/UT-wise;

c.       whether  Indian Medical Association (TMA) has directed all its States the members to stage protests against such attack on doctors across the country which led to the shutdown of OPD, Emergency services which resulted into death of patients, if so, the details thereof;

d.      whether the Government has implemented the recommendations of the Inter-Ministerial Committee constituted in the  Ministry to review various issues including issue of assaulton doctors, if so, the derails thereof;

e.       whether there is urgent need for a specific legislation to protect doctors/health professionals; and

f.       if so, the preventive steps taken/ being taken by the Government in this regard

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

Grave medical negligence: Three patients on ventilator die at this city hospital

Dr KK Aggarwal and Ira Gupta

Three patients on ventilator support died on Tuesday night at Tamil Nadu’s Madurai Government Hospital due to an unexpected power failure. After the incident, the kin of the deceased patients sat on a dharna in front of the hospital seeking action against the apathy of the concerned officials.

According to the relatives of the deceased, three people died & two more who were on ventilator were fighting for life after a power cut that continued for nearly two & half hours in Madurai.

The power cut happened after rains accompanied by thunderstorms lashed the temple town yesterday night.

Mallika (55), a resident of Melur, Madurai, Palaniyammal (60), a native of Ottanchatiram, Dindigul, & Raveendran (52) from Srivilliputtur, Virudhunagar are the patients who died after the ventilator failure, sources said.

It was a 15 bedded emergency ward for accidental care of the Madurai Government Hospital near Anna bus stand in Madurai. When the thunderstorm happened, the power cut made the ventilators stop working.

Dean Vanitha Mani refuted the charge saying it was natural death due to the patients’ poor physical health. While it is true there was a power cut late in the evening, we had restored power immediately with the help of power back up. The deceased patients have not died due to ventilator failure. They were critical when their relatives brought them here from other private hospitals, she said. Earlier, at least 14 patients on ventilator support had died in a private hospital at Chennai due to a similar ventilator failure following power outages during the Chennai floods of 2015.  (Source: LatestLaws.com]

Unexpected fire, electrical failures are all accidents and will need to be compensated. These can also amount to negligence if the hospital had no ambu bag backup, electrical back up or no policy for medical accidents in the hospital. In the informed consent also there should always be a mention of unexpected complications and death. 

Rs 36 lakh awarded as compensation for medical negligence

Is it always negligent to miss a significant fetal anomaly on a routine ultrasound scan at 20 weeks?

Dr KK Aggarwal & Advocate Ira Gupta

Consumer Commission Order

Judges: Retired Justice Sunil Hali and retired District and Sessions Judge DK Kapoor

Complainants: Seema Kumari and her husband Atish Kumar

Allegations

Dr KC Sharma and his wife Dr Uma Sharma were running an ultrasound scanning centre and nursing home at Udhampur “without adequate qualification, expertise and recognition from Medical Council of India”.

Missed

Hydrocephalous; it could have been detected earlier, if the sonographers/sonologists were experienced and suitably qualified.

Expert’s opinion

Dr Manisha Langer, a qualified radiologist, told the commission that myelomeningocele can be detected by ultrasound within 15 to 16 weeks of pregnancy. The detection rate improves after 24 to 25 weeks.

Result of missed diagnosis

The pregnancy could not be terminated

Compensation awarded

Rs 20 lakh compensation to the couple for medical treatment; out of this, Rs 15 lakh to be kept in a fixed deposit for the child.  Rs 15 lakh was awarded as compensation on account of pain and suffering undergone by the parents, and Rs 1 lakh as litigation charges.

Discussion

Sonographic diagnosis of open spina bifida typically occurs during the second trimester of the pregnancy.

Modern ultrasound equipment is undoubtedly capable of producing images that allow diagnosis of anomalies such as open lumbosacral spina bifida or atrioventricular septal defect. However, such diagnoses can only be made if considerable operator skill is combined with knowledge and experience.

In most cases the diagnosis of clinically significant fetal anomalies is quite straightforward, but evidence suggests that false-negative results occur regularly.

For example, European Surveillance of Congenital Anomalies (EUROCAT) (Ultrasound Obstet Gynecol. 2005;25:6-11) quotes a prenatal detection rate for spina bifida of only 68%, whilst a recent systematic review (Health Technol Assess. 2000;4:1-193) reports a detection rate for AV septal defect of just 42%. So, 32% doctors can miss the diagnosis at 20 weeks.

Was missing the diagnosis negligence?

Is it always negligent to miss a small open lumbosacral spina bifida (below L3) at a routine 20-week scan without extenuating circumstances (obesity, oligohydramnios)?

·         About 62% of experts state that it is not negligent to miss such a lesion.

·         24% say it is not negligent to miss a small spina bifida provided there is documented evidence of normal intracranial anatomy (absence of head signs).

·         Only 4/29 experts will say that such an anomaly should always be detected.

Was termination the choice if the diagnosis would have been done before 20 weeks?

No. Spina bifida is a manageable condition. It is not an indication of termination by itself. Higher lesion level, larger segment span and an inter-pediculate distance greater than 10 mm are associated with poor recovery.

What was the cause?

Probably folic acid not taken by the mother before the conception

Legal points

·         Doctors should take informed consent from the patient that ultrasound can miss the diagnosis.

·         Was she and if not, why was she not given folic acid?

·         If she was not on folic acid, then why was the ultrasonologist not alerted to specifically look for spina bifida?

·         One expert cannot be relied upon, if other experts or opinion say it otherwise.

Answer: This judgment should be challenged

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

Not knowing the latest may not be medical negligence

You have the right to recorder your earlier treatment

SC recalls its earlier order as SC was not aware about the amended law

Dr KK Aggarwal and Advocate Ira Gupta

Recently, on 7^th March 2019 the Hon’ble Supreme Court consisting of the bench of Hon’ble Mr. Justice Abhay Manohar Sapre and Hon’ble Ms. Justice Indu Malhotra has recalled its earlier order and judgment dated 7^th January 2019 passed in the matter titled as “Birla Institute of Technology versus The State of Jhrkhand & Others, Civil Appeal No. 2530 of 2012.

Earlier on 07^th January 2019, the Hon’ble Court had placed reliance on the decision Ahmadabad Pvt. Primary Teachers Association vs.Administrative Officer and Others (2004) 1 SCC 755, which was brought to the Court’s notice by the learned counsel appearing for the appellant and allowed the appeal filed by the appellant.

However, after the pronouncement of the order in this appeal, it came to the notice of the Hon’ble Supreme Court that consequent upon the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra), the Parliament amended the definition of the word “employee” as defined in Section 2(e) of the Payment of Gratuity Act, 1972 by Amending Act No. 47 of 2009 on 31.12.2009 with retrospective effect from 03.04.1997. This amendment was not brought to the notice of the Hon’ble Court while passing the order on 07.01.2019 in this appeal.

Thereafter, the Hon’ble Supreme Court, suo motu took up the appeal to its file and directed it to be listed on the Board. On 09.01.2019 the appeal was accordingly listed for orders. This Court then stayed its order dated 07.01.2019 and passed the following order:

“On 07.01.2019 this Court delivered the judgment allowing the appeal and setting aside the order of the High Court impugned therein. Today, we have listed the matter suo motu. The reason being that during the course of hearing of the appeal it was not brought to the notice of the Bench that the judgment of this Court in Ahmedabad Pvt. Primary Teachers Association vs. Administrative Officer & Ors. (2004) 1 SCC 755 on which the reliance was placed for allowing the appeal necessitated the Parliament to amend the definition of “employee” under Section 2(e) of the Payment of Gratuity Act by Amending Act No.47 of 2009 with retrospective effect from 03.04.1997. In other words, though the definition was amended in 2009 by Act No.47 of 2009, yet the same was given retrospective effect from 03.04.1997 so as to bring the amended definition on Statute Book, from 03.04.1997. Keeping in view the amendment made in the definition of Section 2(e), which as stated above was not brought to the notice of the Bench, this issue was not considered though had relevance for deciding the question involved in the appeal. It is for this reason, we prima facie find error in the judgment and, therefore, are inclined to stay the operation of our judgment dated 07.01.2019 passed in this appeal. The judgment dated 07.01.2019 shall not be given effect to till the matter is reheard finally by the appropriate Bench. The Registry is directed to list this matter for rehearing before the appropriate Bench comprising of Hon’ble Mr. Justice Abhay Manohar Sapre and Hon’ble Ms. Justice Indu Malhotra as early as possible.”

In view of the above, the said appeal came up for hearing and after hearing the submissions of all the parties, the Hon’ble Division Bench of Supreme Court recalled its earlier judgment and passed the judgment dated 7^th March 2019.

 Similarly, in medical profession  not knowing the latest drug, investigation or treatment may not be a crime or medical negligence. 

In medical profession, everyday there is some new invention or discovery, however, doctors are not always updated about every new invention or discovery. But that does not mean, doctors are liable for medical negligence. 

But, the day doctors come to know about the latest new discovery and invention, they must correct themselves. 

 Any judgment or decision taken by a doctor without any latest information may not be negligence. 

It important to note that  doctors should never cut or modify previous written notes on the grounds that an old wrong decision was taken.

  A wrong decision based on available information as previous opinions, reports, treatments were not shown or were not available can only be a judgment error.

  

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

Legal principles applicable in cases of medical negligence

“7. In order to appreciate the opinion of the NCDRC, it would be appropriate to lay down the legal principles which would apply in cases of medical negligence.

8. ‘Negligence’ has been defined in the Halsbury’s Laws of England, 4th Edn., Vol. 26 pp.17-18 and extracted in Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre & Ors. as under:

“22. Negligence. – Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient”

9. A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view (Bolam v. Friern Hospital Management Committee). In the same opinion, it was emphasised that the test of negligence cannot be the test of the man on the top of a Clapham omnibus. In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent, and it would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art. A situation, thus, cannot be countenanced, which would be a disservice to the community at large, by making doctors think more of their own safety than of the good of their patients.

10. This Court in another judgment in Jacob Mathew v. State of Punjab dealt with the law of negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation of a degree of care and caution, but there could be no assurance of the result. A physician, thus, would not assure a full recovery in every case, and the only assurance given, by implication, is that he possesses the requisite skills in the branch of the profession, and while undertaking the performance of his task, he would exercise his skills with reasonable competence. Thus, a liability would only come, if (a) either the person (doctor) did not possess the requisite skills, which he professed to have possessed; or (b) he did not exercise, with reasonable competence in a given case, the skill which he did possess. It was held not to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. In the said opinion, a reference was, once again, made to the Halsbury’s Laws of England as under:

“To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.”

11. In Hucks v. Cole, Lord Denning speaking for the Court observed as under:

“A medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.”

12. In para 89 of the judgment in Kusum Sharma & Ors the test had been laid down as under:

“89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:

     I.        Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

    II.        Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

  III.        The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

   IV.        A medical practitioner would be liable only where his conduct fell below that of the standard so far reasonably competent practitioner in his field.

    V.        In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

   VI.        The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

 VII.        Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII.        It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.

   IX.        It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.

    X.        The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

   XI.        The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”

Source: Vinod Jain vs Santokba Durlabhji Memorial Hospital & Anr (Civil Appeal No. 2024 of 2019 Arising out of SLP(C) No.32721/2017, dated February 25, 2019)

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