The Union Health Ministry released draft guidelines on withdrawing or withholding medical treatment in terminally ill patients, closing a regulatory gap that left medical professionals in a lurch. The guidelines, formulated by experts from AIIMS, allow patients to make a considered decision on whether they want to go on life support and whether they want to be resuscitated.
It also allows withdrawal of supportive care like ventilation, dialysis, or ECMO when they have been declared brain dead, they are unlikely to benefit from advanced intervention, and the patient or their surrogate document an informed refusal of care.
The guidelines also makes a mention of advance medical directive — a written declaration made by a person with decision-making capacity documenting how they would like to be medically treated or not treated should they lose capacity.
Once the physician determines the inappropriateness of the life sustaining measures, it says, they will refer the case to the primary medical board. If the board reaches consensus then there will be another multidisciplinary meeting with family and a shared decision will be made.
For forgoing life sustaining treatments, the case will be referred to a secondary medical board, and the support would be withdrawn only after its nod.

In response to “recent shameful events which has shook the nation,” of murder-rape of a female doctor at RG Kar Medical College and Hospital in Kolkata, the Directorate General of Health Services (DGHS) under the Government of the National Capital Territory (NCT) of Delhi issued an urgent notice on August 20, 2024.
The notice issued an advisory for all the medical directors/medical superintendents.
The notice directs that a committee under the chairmanship of the Medical Directors should be formed, with senior doctors and representatives of doctors and nurses, to prepare a security plan for the hospital. This would involve specific measures to protect medical professionals from guests or patients family during emergency situations and at the casualty scene at the premise of the hospital.

Emphasising the Code Violet, which refers to an emergency situation where there is an immediate threat or act of violence within the healthcare facility, the notice read, “The security plan must include “Code Violet” and potential preparation and training for all the doctors and peripheral staff.” Moreover, the notification stated that the hospital’s security plan needed to be disclosed to the district’s deputy commissioner of police of the concerned district.
In its final paragraph, the urgent notice release read, “Any Medical Directors / Medical Superintendents and Head of Office of the Hospitals who do not make Police Complaint under aegis of Section 6 of the Delhi Medicare Service Personnel and Medicare Service Institutions. (Prevention of Violence and Damage to Property) Act, 2008 within 6 Hours of receiving complaints from the Doctors must provide justification for their inaction to the Director General Health Services, Government of NCT of Delhi.”

The appellant filed an appeal alleging medical negligence, and the division bench of Sanjay Karol and Arvind Kumar, JJ., set aside the challenged orders of the National Consumer Disputes Redressal Commission (the “NCDRC”) and the State Consumer Disputes Redressal Commission (the “State Commission”) and ordered the hospital to reimburse the appellant within four weeks of this judgment for the amount of Rs. 5 lakhs, plus interest at the rate of 9% from the date of the award made by the District Consumer Disputes Redressal Forum (the “District Forum”). The Court also assessed litigation costs of Rs. 50,000/-.

Regarding the eggshell rule, the Court held that the individual in whose case the adjudicatory authority uses this must already have a pre-existing condition in order for the rule to be properly invoked and applied.

 Background:

A senior surgeon operated on the appellant after she was admitted to Suket Hospital in Himachal Pradesh in 2005 to remove her appendix. She was released from the hospital after the procedure, but her discomfort persisted. After that, on July 26, 2005, she was admitted once more, but the next day, she was released from the hospital with the guarantee that she wouldn’t experience any more suffering. But the pain she endured had no end. This was a four-year process that never ended.

Ultimately, the appellant sought treatment at Chandigarh’s Post Graduate Institute of Medical Science. A second surgery was required to remove a 2.5 cm foreign body (needle) that was discovered to be present below the anterior abdominal wall in the preveside region, directly medial to the previous abdominal scar (appendectomy).
The appellant alleged that the hospital had been negligent and sought compensation for the extreme suffering and Rs. 19,80,000/- in medical expenses.

The Hospital was ordered by the State Commission and the District Forum to pay the appellant’s costs as well as her bodily and emotional suffering. In the Revision, the NCDRC increased the State Commission’s award of compensation to Rs. 2,00,000/-. As a result, the appellant favors this current appeal and is asking for more compensation.

 

Analysis:

The Court examined the Scope of the Consumer Protection Act and the law on Medical Negligence.

Determining the ‘compensation’, the Court referred to the concept of ‘just compensation’ , and said that the idea of compensation is based on restitutio in integrum, which means, make good the loss suffered, so far as money is able to do so, or, in other words, take the receiver of such compensation, back to a position, as if the loss/injury suffered by them hadn’t occurred. What qualifies as just compensation must be considered in each case’s facts.

Examining the Eggshell Skull Rule, the Court said that it is a common law doctrine that makes a defendant liable for the plaintiff’s unforeseeable and uncommon reactions to the defendant’s negligent or intentional tort. In simple terms, a person who has an eggshell skull is one who would be more severely impacted by an act, which an otherwise “normal person” would be able to withstand. Hence, the term eggshell denotes this, as an eggshell is by its very nature, brittle. It is otherwise termed as “taking the victim as one finds them” and, therefore, a doer of an act would be liable for the otherwise more severe impact that such an act may have on the victim.

The Court said that the jurisprudence of the application of this rule, as has developed worldwide, has fit into four categories:

1. When a latent condition of the plaintiff has been unearthed.
2. When the negligence on the part of the wrongdoer re-activates a plaintiff’s pre-existing condition that had subsided due to treatment.
3. Wrongdoer’s actions aggravate known, pre-existing conditions, that have not yet received medical attention
4. When the wrongdoer’s actions accelerate an inevitable disability or loss of life due to a condition possessed by the plaintiff, even when the eventuality would have occurred with time, in the absence of the wrongdoer’s actions.

Thus, the persons to whose cases this rule can be applied are persons who have pre-existing conditions. Considering the benevolent purpose of the Consumer Protection Act, the Court said that the way compensation stood reduced by the State Commission as also the NCDRC, vis-à-vis the District Forum to be based on questionable reasoning.

The Court noted that the State Commission has recognized that the appellant had not been treated “with the care expected at a medical clinic”; she had been suffering from persistent pain right from 2005 until December 2008; and that post-surgical care was deficient which undoubtedly constitutes a deficiency in service. Yet, the Commission found it appropriate to reduce the compensation to a mere Rs.1 lakh. As per the Court, this is not in line with the balance of interests required to be borne in mind while determining compensation.

Further, the Court noted that the NCDRC observed that the appellant’s treatment at the Hospital was ‘casual’; that the excuse of having sought treatment at other hospitals was not available to the respondent Hospital and that she had suffered pain for more than 5 years apart from the case having been dragged on for more than a decade. Yet, NCDRC granted lumpsum compensation was only Rs.2 lakhs.

The Court questioned how such compensation could be justified, after observations having been made regarding the service rendered by the Hospital, being deficient. The Bench said the Compensation by its nature must be just, and described the compensation awarded to the appellant as ‘paltry’.

Further, the Court said that the impugned judgment was silent as to how Eggshell-Skull rule applied to the present case. Nowhere is it mentioned, as to what criteria had been examined. However, the Court said that as per the rule as explained by the NCDRC, there should be a pre-existing vulnerability or medical condition, because of which the victim may have suffered ‘unusual damage’. However, none of the orders – District, State Commission or the NCDRC referred to any such condition.

Thus, the Court set aside the Awards of the NCDRC and State Commission, and further restored the Award as passed by the District Forum. In addition to this, the Bench directed the Hospital to pay a sum of Rs.5 lakhs accompanied by interest at 9% from the date of the award passed by the District Forum to the appellant, within a period of four weeks from the date of this judgment. Also, a cost of Rs.50,000/- was imposed in terms of litigation cost.

Cause Title- Jyoti Devi v. Suket Hospital & Ors. (Neutral Citation: 2024 INSC 330)

 

Recently, the Supreme Court granted compensation of Rs. 10 lakhs to a patient who experienced hoarseness in his voice as a result of medical errors made by doctors during the anesthesia procedure.

The patient, who is now deceased, sought compensation from the Manipal Hospital for the botched operation that caused him to become hoarse. The claim was for Rs. 18,00,000/- (Rupees Eighteen Lakhs only). But without providing any justification, the District Forum came to a rough and ready number of ₹5,00,000/- (Rupees Five lakhs only) that would be payable as compensation to the appellant.
The National Consumer District Redressal Commission (“NCDRC”) kept track of the patient’s reward from the district forum. The Bench made up of Justices Hima Kohli and Ahsanuddin Amanullah ordered the hospital to pay compensation totaling Rs. 10 Lacs with interest in contrast to the Rs. 5 Lacs that the District Forum had awarded, after concluding that the District Forum had neglected to take into account all of the aforementioned factors in order to determine the appropriate compensation that should have been given to the patient.
“Given the aforesaid facts and circumstances of the case, we are of the opinion that the District Forum ought to have taken all the aforesaid aspects into consideration for arriving at a rightful compensation payable to the deceased which in the instant case, has not been done.”

The deceased patient who filed the appeal claimed that the hospital administration’s negligence in assigning a crucial task to a trainee anesthetist resulted in the patient’s left vocal cord being paralyzed because the double lumen tube was inserted incorrectly when the patient was receiving anesthesia for surgery. After the procedure, the patient’s voice had become hoarse.
The appellant patient also argued that his illness prevented him from being promoted in his position, and he kept working in the same position without advancement from 2003 until the end of 2015 when he passed away.
The respondent Hospital contended that the District Forum erred in tossing out the testimony of the physicians who said that administering anesthesia via a double-lumen tube was perfectly acceptable.
“Mere reliance on medical literature would not be sufficient to exonerate the Hospital from its duty of ensuring that the Head of the Department, Anaesthesia ought to have inserted the Double Lumen Tube. Instead, he was not available and the task was delegated to a trainee anaesthetist.” the court observed while disagreeing with the contention of the respondent Hospital.

Accordingly, the court directed that the compensation awarded by the District Forum be doubled from ₹5,00,000/- (Rupees Five lakhs only) to ₹10,00,000/- (Rupees Ten lakhs only) with simple interest calculated @ 10% per annum from the date of filing of the claim petition till the amount is paid, subject to the adjustment of the amounts already released in favour of the appellant patient.

Case Title: J. DOUGLAS LUIZ (SINCE DECEASED) THROUGH LEGAL REPRESENTATIVES VERSUS MANIPAL HOSPITAL
CIVIL APPEAL NO.1700 OF 2024

The Supreme Court while deciding a case of medical negligence held that principles of Res Ipsa Locutor get attracted where circumstances strongly suggest partaking in negligent behaviour by the person against whom an accusation of negligence is made. Res ipsa loquitur means “the thing speaks for itself”.

In the context of a legal claim based on negligence, res ipsa loquitur essentially means that the circumstances surrounding the case make it obvious that negligence occurred. “For applying the principles of Res Ipsa Locutor, it is necessary that a ‘Res’ is present to establish the allegation of negligence. Strong incriminating circumstantial or documentary evidence is required for application of the doctrine.,” a Division Bench of Justices A.S. Bopanna and Prashant Kumar Mishra said.

The grievance of the dead’s widow, the appellant, is the basis for the current case. She claims that after the deceased was moved into a private room, no doctor from the neurosurgery team saw him until 11:00 P.M. The dead had experienced a heart attack at the same moment and had finally passed away. There was a contention that following such extensive surgery, the deceased ought to have been moved to the Intensive Care Unit rather than being placed in a private room. The appellant initially filed a case with the National Consumer Disputes Redressal Commission, but it was denied. Hence, the current appeal.

In the instant case, the crucial issue to be decided was whether the concerned hospital and doctor have committed negligence in not providing proper postoperative medical care to the patient. Further, whether the Commission has committed any illegality while dismissing the complaint filed by the appellant herein.

Factual Background

The wife of the dead patient, Sankar Rajan, who was 37 years old when he passed away on November 6, 1998, at the Indraprastha Apollo Hospital (respondent no. 1) while receiving follow-up care and therapy following a major neurosurgery, has filed the current appeal.

It should be mentioned that the deceased had hydrocephalous Chiari malformations (Type II). The deceased in this case sought the advice of Dr. Ravi Bhatia, current respondent no. 2, a senior consultant in the hospital’s department of neurosurgery, who suggested that he be admitted to the same facility so that he may undergo the surgery there.

Taking Dr. Bhatia’s recommendation, the dead checked himself into a hospital. Following the procedure, the patient was moved into a private room. Between 04.15 and 04.30 p.m., the attending physicians were notified of pain in the neck area, which appeared to have moved to a lower location than it had before the procedure. The deceased then experienced a heart attack at approximately 11:00 p.m. After being placed on life support on October 31, 1998, and certified brain dead, he passed away on November 6, 1998.

Contentions of the Parties

While acknowledging that the dead had no cardiac issues, Senior Advocate Nikhil Nayyar argued on behalf of the appellant that the deceased passed away from cardiac arrest. He further claimed that the deceased was told upon admission that he would be sent to the intensive care unit following surgery. He wasn’t moved to the ICU, though; instead, he was moved from the recovery area to a private room.

 Regarding the conclusions of the contested order, the involved counsel disputed it, claiming that it contradicts the evidence in the file that shows the respondents’ negligence in the deceased’s post-operative treatment.

However, senior attorney Meenakshi Arora, representing Dr. Bhatia/respondent no. 2, defended the contested ruling, arguing that it had no flaws that call for the Top Court to get involved. She further claimed, among other things, that the deceased and the appellant were informed that the patient would be examined in the recovery room first and that, in accordance with hospital protocol, all patients who do not exhibit complications in the recovery room and do not have any pre-operative medical issues are then moved to their ward or room.

Court’s Observations

The Court stated from the beginning that Dr. Bhatia’s carelessness during the neurosurgery is not the main issue in this case; rather, it is about inadequate postoperative medical treatment.

The patient was allegedly supposed to have been moved to the intensive care unit rather than a private room, according to the court. The Court noted after reviewing the pertinent documentation that it showed how, in accordance with regular procedure, all patients who exhibit no difficulties in the recovery area and who have no postoperative or preoperative complications are sent to their rooms.

Addressing the facts of the present case, the Court opined that there is no evidence put forth by the appellant to establish that heart attack suffered by the patient had any connection with the operation in question or that it was on account of negligent post operative care. The Court also noted that the patient did not have any history of diabetes or hypertension or any cardiac problem. Therefore, it was difficult for treating doctors including the duty doctor or the hospital to assume that the patient may suffer cardiac arrest and moreover, the patient had also not complained of pain in any other part of the body except neck region.

On the issue as to when a medical officer may be held liable for negligence, the Court cited the case of Jacob Mathew v. State of Punjab and another, (2005) 6 SCC 1, wherein it was held that “A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.” Court also placed its reliance upon Bombay Hospital & Medical Research Centre v. Asha Jaiswal and Others, 2021 SCC online SC 1149, wherein the Court has elaborately considered previous judgments on the subject including Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1. In the latter case, it was clearly held that“Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur.”

Due to the foregoing reasons, the Court concluded there was no mistake in diagnosis or a negligent diagnosis by Respondent no. 2. In the absence of the patient having any history of diabetes, hypertension, or cardiac problem, it is difficult to foresee a possible cardiac problem only because the patient had suffered pain in the neck region, the Court stated. Therefore, while dismissing the appeal, it recorded that the appellant has failed to establish negligence on the part of Respondents in taking post operative care.

Case Title: Mrs. Kalyani Rajan v. Indraprastha Apollo Hospital & Ors, Civil Appeal No. 10347 Of 2010

In a case involving medical negligence, the Supreme Court ordered the doctor to provide the 84-year-old man compensation totaling Rs. 2 Lacs on January 29, 2024, providing relief.

After the doctor’s medical incompetence during a surgical procedure caused him to lose vision in his left eye, the patient filed a consumer complaint against the doctor.

For more than 20 years, the patient has been fighting this protracted legal battle in order to assert a legitimate claim for compensation.

The National Consumer Dispute Redressal Commission (“NCDRC”) approved the patient’s compensation award following a round of litigation before various consumer forums. The patient then filed an appeal with the Supreme Court to have the compensation amount released against the NCDRC’s ex-parte order confirming the patient’s receipt of the compensation amount.

But according to the patient’s account, the doctor had not given them a single penny of the compensation sum, and in order for the doctor to issue this order, he had falsified the NCDRC.

The patient has not received a single penny in compensation for the loss of vision he suffered as a result of the respondent doctor’s medical negligence. The Bench of Justices B.R. Gavai and Sandeep Mehta noted this and ordered the doctor to give the patient Rs. 2 Lacs in compensation along with interest at a rate of 12% annually within two months, failing which the interest will increase to 15% annually.

“In wake of the discussion made hereinabove, we modify the orders passed by the NCDRC and direct that the appellant P.C. Jain shall be entitled to receive compensation of Rs. 2 Lakhs only with interest @ 12% per annum from the respondent Dr. R.P. Singh with effect from the date of filing of the complaint till actual payment is made.”

“The review petition filed by Dr. R.P. Singh was allowed ex-parte by the NCDRC in a totally cavalier fashion without putting the complainant to notice.”, the court observed.

The doctor was also fined Rs. 50,000 by the court for lying to the patient about the amount of compensation that had been given to them. The complaint must receive payment for the expense.

In the end, the court granted the complainant patient’s civil appeal.

Case Title: P.C. JAIN VERSUS DR. R.P. SINGH

The Delhi High Court held that the removal of the name of the doctor, issuing an untrue, misleading or improper certificate without examining the patient from the Medical Council (MCI) Roll is not the only penalty that can be imposed.

The High Court dismissed a petition challenging the issuance of a warning to two doctors who issued a certificate without seeing the patient. The petitioner, Dr Neena Raizada, had challenged the order of August 13 passed by the Medical Council of India issuing a warning to Dr Ravi Kumar and Dr Arti Lalchandani not to issue any opinion letters without seeing the patients.

Justice Subramonium Prasad said that the contention of the petitioner that the only penalty that can be imposed on a doctor who gives a certificate that is untrue, misleading, or improper is the removal of the name of the doctor from the rolls of the register of the Medical Council cannot be accepted. “Regulation 7.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, only postulates that a doctor who gives an untrue, misleading, or improper certificate can be removed from the rolls of the register of the Medical Council,” Justice Prasad observed. “However, it does not mean that the only punishment that can be given to such a doctor is the removal of the name from the rolls of the register of the Medical Council,” Justice Prasad said in the order passed on October 19.

The bench clarified that Regulation 8.2 gives power to the Medical Council to impose any punishment as is deemed necessary, which can also include the removal of the name of the doctor from the rolls of the register of the Medical Council permanently or for a specified period. The petitioner is the complainant. She had approached the UP State Medical Council, alleging misconduct on the part of Dr Arti Lalchandani and Dr Ravi Kumar, for issuing a certificate dated July 9, 2014. The complainant, who herself is a doctor, alleged that Dr Arti Lalchandani and Dr Ravi Kumar issued the certificate even without examining her.

The UP State Medical Council warned the doctors not to issue certificates or opinions without examining the patients. The said decision was challenged by the complainant before the Medical Council of India. It was argued by the counsel for the petitioner that Regulation 7.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, does not postulate any punishment by way of warning; rather, the only punishment that is stipulated under the Regulations is the removal of the doctor from the rolls of the Medical Council. On the other hand, Counsel for the National Medical Commission (NMC) submitted that under Regulation 8.2 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, the Medical Council has the power to award any punishment as deemed necessary and it also has the power to award the punishment of removal of names from the rolls.

The high court noted that Regulation 8.2 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, gives power to the Medical Council to award punishment in cases of misconduct. (ANI)

In a case involving a Nasotracheal Intubation, where it was alleged that it resulted in a number of serious medical issues, a Supreme Court bench composed of Justices Hrishikesh Roy and Manoj Misra dismissed a claim of medical negligence and set aside the compensation given.

In this regard, the Court stated, “This is a classic case of human fallibility where the doctors endeavoured to do the best for the patient based on their experience and evolving situations. The intended outcomes, though, were not realised. It is not possible to say for sure that there was medical negligence involved in the current situation after looking at the course of treatment.

In this instance, civil appeals under Section 23 of the Consumer Protection Act of 1986 were filed in order to contest an NCDRC (National Consumer Disputes Redressal Commission) ruling. The NCDRC has ordered Mrs. Sunita Parvate to receive Rs. 6,11,638 in damages from Suretech Hospital, Drs. Nirmal Jaiswal, Madhusudan Shendre, and M.A. Biviji for medical malpractice. The case involved Mrs. Sunita undergoing a forceful Nasotracheal Intubation (NI) surgery, which led to a number of serious medical issues, including tracheal injury, infection, and voice loss. The NCDRC found inadequate support for Mrs. Sunita’s assertions that her septicemia and thrombocytopenia were caused by the carelessness, despite her claims. It did come to the conclusion that the Tracheostomy Tube (TT) replacement forced NI surgery was unnecessary. In light of the NCDRC’s conclusion that this act of negligence caused direct tracheal damage, compensation for medical expenses spent at Suretech Hospital was granted. Mrs. Sunita then filed an appeal for more money and a higher interest rate, but Dr. M.A. Biviji, Suretech Hospital, and the other doctors refuted the allegations of negligence, claiming that the forced NI procedure could not be solely blamed for the complications that followed.

The Apex Court observed that since the patient was treated and underwent different procedures at multiple hospitals, there was a possibility that the medical complications could have arose at any of the hospitals or places of treatment. Further, it was held that there was no substance to establish the causal link between the ‘NI’ procedure that was undertaken at Suretech Hospital and the subsequent medical complications that arose. In that context, it was said that, “It must be pointed out that the only medical report available in this case i.e., the RML Hospital Committee Report did not attribute any negligence to Suretech Hospital, Dr. Biviji, Dr. Jaiswal or Dr. Shendre with respect to any of the charges levelled against them. If the ‘NI’ procedure had been conducted in a negligent manner or was a poor medical decision, it is likely that the RML Hospital Committee Report would have mentioned the same. However, no such observation was made either. Further, none of the doctors that treated the patient commented adversely with respect to the chosen course of treatment.”

It was further observed that there was nothing to say that the procedure conducted was outdated or poor medical practice. In that vein, it was observed that, “the medical team at Suretech Hospital has been able to show that the ‘NI’ procedure was carried out on 13.05.2004 only after due consideration. The existing ‘TT’ was removed after the bronchoscopy showed normalcy in the airways & trachea of the patient. It was expected that the patient would be able to breathe normally without any support after ‘TT’ decannulation. However, a stridor was observed in the airways of the patient, after the said decannulation took place. In light of the same, an alternative course of treatment in the form of an ‘NI’ procedure was opted for as a temporary measure.”

Resultantly, the appeal was dismissed, and the parties were left to bear their own costs. The impugned judgment awarding compensation on account of medical negligence was set aside.

Case Title: M.A Biviji vs Sunita & Ors.

The National Medical Commission (NMC), the country’s medical education regulator, in its professional conduct regulations, has said that doctors can refuse treatment in case of abusive and violent patients or their relatives, but ensure they are not abandoned.

The regulations, issued by NMC in a gazette notification on August 2, also bar doctors from endorsing any drug brands, medicine and equipment or advertise them.