Patient not following advise of Doctor & Error of judgement are not Negligence
Patient not following advice of Drs. & mere Error of judgement, do not amount to Negligence.
The NCDRC while dismissing the claim for Rs.65,00,000/- (Rs. Sixty Five lacks) in its recent judgment of Ms. Kamni Sharma & ors. V/s.Dr. Anil Nadir and Pamposh Hospital, New Delhi (Consumer Case no.351/2001, decided on 13/07/2015) observed as above…http://cms.nic.in/ncdrcusersWeb/GetJudgement.do…
The Facts in nutshell:-
The deceased husband of the Complainant No.1 was admitted initially in Orthonova Institute on 16.12.1999 for pain in the right chest wall. Several tests and CT scan revealed a tumour at 2nd and 5th rib. These reports were denied by the Opponent No.1 Dr. when consulted for 2nd opinion and he made diagnosis of Tuberculosis of rib (TB) and started treatment accordingly.. however as there was no further improvement, the patient who was in critical condition was admitted lastly to Sir Ganga Ram Hospital, where he was diagnosed as a Squama Cell Carcinoma (SCC) of right lung with hepatic, brain, adrenal, rib, vertebral and lymph nodes metastasis.. Lastly Cancer Treatment was started but in spite of best efforts the patient died on 19.11.2000. The Complainant filed a complaint about compensation of Rs.65,00,000/- for Medical Negligence alleging that it was a wrong diagnosis of TB initially made by Opp. No.1 Dr., which led to the critical condition of the patient !!
The NCDRC after going through the entire documentary evidence and medical literature found that basically, the deceased was a chain smoker and drug addict !! The patient came with the history of fever with chills, painful swelling, and weight loss .Also, there was past history of testicular TB, treated by ATT for 8 months as the CT scan report also showed old granuloma… The Opponent No.1 who was the Ortho Surgeon continued the same treatment and gave advice for FNAC/biopsy of the lesion for proper diagnosis but, patient did not turn up for 8 months and failed to follow the instructions of a Doctor and hence Doctor is not negligent !! The Commission also observed that even though there was weight loss in short duration (7kgs) and the CT revealed lytic lesion of 1st and 4th rib, as there was old granuloma and the ESR was 44 mm and the patient also had received ATT for testicular TB, it was an “Error of Judgment” that the Opp. No.1 Dr.failed to diagnose cancer at initial examination of the patient !!!!
The Commission observed as there is 50% chance of survival, it is a fit case for applying principle of “Loss of Chance” as envisaged in 2002 by House of Lords in the case of Gregg vs Scott, wherein it was observed ” “a patient must prove that a doctor’s action, or lack of it, caused the patient to suffer injury and not just the chance of avoiding an injury. In practical terms, this means that a doctor failing to diagnose a case of cancer in which a patient has only a 25% chance of survival would not be found negligent. Only, if the chance of survival was over 50% i.e. a probability of a cure rather than a chance of a cure, would negligence be found.”
The Commission also observed ‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it another way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.”
This is another landmark judgement !!! It also throws a light on the fact that proper advice and its documentation is a must.
Always remember, Poor documentation is poor defence and no documentation is no defence !!!
Thanks and Regards
Adv. Rohit Erande.