Error of judgement not the same thing as negligence: National Commission

The National Consumer Disputes Redressal Commission has made a distinction between medical negligence and ‘error of judgement’ while rejecting a complaint against a Delhi-based private hospital, accused of failing to make a correct diagnosis of cancer in a patient. The patient later died during treatment in another hospital.

Complainant Kamani Sharma had charged a doctor in Pamposh Medical Care Centre at Pamposh Enclave, Delhi, with diagnosing her husband, Rajinder Sharma, with tuberculosis in December 1999, while he was actually suffering from cancer. The patient later approached LNJP Hospital, Rajiv Gandhi Cancer Hospital and Sir Ganga Ram Hospital, where he was diagnosed as an advanced case of lung cancer and metastasis. The patient underwent biopsy at Maulana Azad Medical College and took treatment at Sir Ganga Ram Hospital. In spite of best efforts, he died on 19 November 2000.

Ms Sharma alleged that it was the wrong diagnosis of tuberculosis initially made at Pamposh Medical Care Centre that led to the critical condition of her husband, and then his death within a short span of 11 months. She sought a compensation of Rs 65 lakh for medical negligence and deficiency in service.

A bench of the commission, comprising Justice JM Malik and SM Kantikar, dismissed the complaint last week, while holding that it was a case of ‘error of judgement’ rather than medical negligence. The bench said Rajinder did not turn up at the hospital for eight months and its doctor never treated him.

The commission noted that the patient was a heavy smoker and drug addict and had earlier received anti-tubercular therapy (ATT) for testicular TB. There was a possibility of healed TB focus or sarcoidosis. Applying the principle of ‘loss of chance’ to the case, the bench held that the failure to diagnose would not matter so much since the patient was suffering from frank metastasis in brain and liver. There were less than 50 per cent chances of survival, the bench said.

Consumer court slaps Rs 60,000 fine on Chennai hospital for medical negligence

Seven years after a private hospital misdiagnosed a city resident as HIV-positive, the state consumer disputes redressal commission has imposed a fine of Rs 60,000 on it for negligence and deficiency in services.

In February 2007, under a routine pre-employment check-up at Malar Hospitals (the present Fortis Malar Hospitals), R Mohanan was declared HIV-positive and pronounced ‘not fit’ in the medical report in bold letters. This resulted in instant cancellation of the complainant’s provisional selection for the job by his employer, a Japanese company. The test was done using the Elisa method.

Mohanan then went for a second medical check-up at Voluntary Health Services (VHS) Hospital, Taramani. The report declared him HIV-negative. Mohanan also underwent the Western Blot Test (for HIV) at Malar Hospitals. According to the report, he did not have AIDS. Subsequently, he moved the State Commission seeking compensation for negligence in service and mental agony.

In its counter, Malar Hospitals said Mohanan had undergone Rapid ELISA Test for detecting HIV. The report said he was HIV-positive. The report also advised individuals to undertake Western Blot Test, in addition to Rapid ELISA Test, as there was a possibility of false report in ELISA Test. Further, the case was not maintainable in a consumer commission, the hospital added.

A bench of president (retd) Justice R Regupathi and judicial members J Jayaram and P Bakiavathy said though no fee had been collected from Mohanan for the test, his employer had paid the fee on Mohanan’s behalf. So, the argument of Malar Hospitals that Mohanan did not pay the fee and hence was not a consumer, and that the case was beyond the purview of the commission, did not hold any merit, said the bench. Further, the test report did not mention that an individual had to undergo Western Blot Test for a conclusive report. “...The hospital ought not to have declared the final impression as HIV-positive without conducting the Western Blot Test, which is a conclusive test for confirming HIV,” the bench said.