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

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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.

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