Author- Neha Agarwal [Banasthali Vidyapith, Rajasthan]
National Consumer Disputes Redressal Commission while dismissing an appeal in case of Mohan Dai Oswal Cancer Treatment & Research Foundation & Ors v. Prashant Sareen & Ors, has observed that a doctor is vicariously liable for the negligence committed by members of his team which was assisting him in the treatment.
The case was regarding death of three year old child named Arshiya, when she was undergoing for cancer treatment at appellant hospital, Ludhiana, under supervision of Dr. Raman Arora in 2004.
A medicine which is used for the treatment of ‘Vincristine’ had to be administered intravenously but the Doctor Harjith Singh Kohli with the assistance of Doctor Vandana Bhambri, who were assisting Dr. Arora have medicine to Arshiya intrathecally (through back bone injection). After which the situation of patient worsened and within two weeks Arshiya died.
Arshiya parents Prashant Sareen and Anjail Sareen then filed complaint before the Chandigarh State Consumer Commission in 2005, claiming compensations for medical negligence. The Commission found that the death of Arshiya was due to the wrong method of administering the drug used by doctors, and awarded a compensation of Rs. 16,80,749 to her parents for medical negligence.
Disagreeing with award, appeal was filed in the NCDRC by the doctors and the hospital. The appellants contended before the commission that the child was at advanced stage of cancer and would have died anyway. Therefore, they denied any role of alleged lapses in the treatment in causing her death.
The NCDRC said that the perusal of the medical literature filed, did not anywhere state that the patient suffering from leukaemia will expire within any particular period of time. And also it did not anywhere state that there is no hope of survival in such type of cancer. The bench of NCDRC, Justice R K Agarwal and Justice M Shreesha said:
The point for consideration is not whether the Patient would die anyway. Such a stand, we hold is not only callous, but also irrelevant to the issue in hand. The issue to be considered herein is as to whether there is any negligence by the Hospital and Doctors in administering the Vincristine, which hastened the death of the Patient.
By referring to the decision of Supreme Court in case of Smt. Savita Garg Vs. Director, National Heart (2004) 8 SCC 56, the NCDRC held that the onus of proof is always on the hospital and Doctor to explain the exact line of treatment rendered which resulted in the incident and in the present case, there is no explanation forthcoming given by the hospital and doctor as to why the Patient, who had substantially improved after three cycles that Chemotherapy had shown complete deterioration after 05.07.2004.
Dr. Raman Arora contended that he had not administered the injection, and denied his liability. This contention was not accepted by the commission on the ground that Dr. Arora was answerable for the actions of his team members. It was observed by the Commission that:
The contention of the Learned Counsel that Dr. Raman Arora, who was head of the Medicine Department and has also written ‘the Protocol’ is not liable as he did not administer the medicine, is totally untenable in the light of the fact that admittedly the entire standard protocol was given by Dr. Raman Arora and moreover the entire treatment was rendered under his care and is therefore he is liable for any acts/ commission or omissions done by his team or the assistants who assisted him in rendering treatment to the Patient.
The commission further said : “Having regard to what the Hon’ble Supreme Court has laid down about ‘ Duty of Care’ to be followed by medical professional, viewed from any angle it cannot be construed that ‘ Duty of Care’ of the treating Doctor/ head of the department, who is in this case has written the ‘Protocol’, ‘ Ends’ with giving the Prescription. At the cost of repetition, we are of the considered view that the Doctor is vicariously liable for the acts of his team which assists him in every sphere in rendering treatment to the Patient”.
Based on the judgment of Supreme Court in case of Achutrao Haribhau Khodwa vs. State of Maharashtra & Ors. 1996 (2) SCC 634, the bench held that Hospital and treating Doctors were negligent in the treating the Patient and therefore, we see no ground to interfere with the well-considered order of the State Commission including the quantum of compensation.
To Read the order: Click Here
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