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    Suggested precautions
    Facts of the case
    Patient's allega...
    Doctor's defense
    Findings of the ...

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Table of Contents   
Year : 2010  |  Volume : 3  |  Issue : 6  |  Page : 69
Supreme Court annuls the "second opinion rule" - A setback for doctors

   Suggested precautions 
  1. Failure to appropriately treat/manage a diagnosis revealed during investigations amounts to negligence. At the same time, treating an ailment which neither is indicated in investigations nor is based on any sound medical justification is also negligence. ,
  2. Using contaminated, expired or substandard medicines is per se negligence and also a criminal offence.
  3. Do not delay in transferring a patient to another appropriate facility, if indicated.
  4. Courts usually draw an adverse inference in case of overwriting, deleting, putting white ink, etc. It is advisable to encircle the mistake then write the correct notings.
  5. A few instances of medical negligence are as follows:
    1. removal of the wrong limb or the performance of an operation on the wrong patient,
    2. giving injection of a drug to which the patient is allergic without looking into the out-patient card containing the warning,
    3. use of wrong gas during the course of an anesthetic,
    4. leaving inside the patient swabs or other items of operating equipment after surgery.

   Facts of the case Top

The patient was admitted to the hospital (OP1) as she was suffering from fever which was intermittent in nature and was complaining of chill. The patient complained of respiratory trouble and was given oxygen. The patient's condition deteriorated and she was transferred to Yashoda Hospital in the afternoon. On the same night, the patient suffered from bradycardia, and despite taking resuscitative measures, she died at around midnight. The death certificate given by Yashoda Hospital disclosed that the patient died due to "cardiorespiratory arrest and malaria".

   Patient's allegation/s of medical negligence Top

  • It was alleged that though the patient was suffering from malaria and was subjected to certain tests by the hospital (OP1), she was not treated for malaria.
  • It was also alleged that even though the patient was not responding to treatment, she was deliberately made to stay at the hospital (OP1) and transferred to Yashoda Hospital at a very late stage.
  • It was alleged that in the saline bottle some particles were seen, and though this fact was brought to the notice of the hospital (OP1) authorities, they failed to respond.

   Doctor's defense Top

In defense, the doctor who gave evidence on behalf of the hospital (OP1) categorically stated "I have not treated the case for malaria fever".

   Findings of the court Top

  • The Supreme Court set aside its own judgment delivered in the case of Dr. Martin D'souza v/s Mohd. Ishfaq and clarified that no second medical opinion was necessary for the courts to proceed against doctors/hospitals in cases of medical negligence.
  • The Supreme Court declared that only in appropriate cases examination of medical experts is required and further held that the decision to call medical experts was at the discretion of the court. The court observed that medical experts were not required in all cases of medical negligence. The Supreme Court clarified that "if any of the parties wants to adduce expert evidence, the members of the Fora, by applying their mind to the facts and circumstances of the case and the materials on record, can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case".
  • The Supreme Court also pointed out that "the first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence".
  • The court held that the present case was that of wrong treatment in as much as the patient was not treated for malaria when the complaint was of intermittent fever and chill and the investigations also pointed out the same. The court relied on the death certificate, and the hematology report of Yashoda Hospital disclosed that blood smear for malaria parasite was positive, whereas Widal test showed negative results. The court found that the case sheet of the hospital (OP1) did not show that any treatment was given for malaria and the doctor who gave evidence on behalf of the hospital (OP1) also said so.
  • The court further observed that wrong treatment for typhoid was given to the patient and when the condition of the patient worsened critically, she was sent to Yashoda Hospital in a very critical condition with no pulse, no BP and in an unconscious state with pupils dilated and the patient had to be put on a ventilator. The court drew adverse inference of the said fact.
  • The court also drew adverse inference against the hospital (OP1) for delay in filing case papers and over writings on the case sheet.
  • Hence, the hospital (OP1) was held negligent.