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Duty Of Care Does Not End With Surgery; NCDRC Orders Hospital And Doctors To Pay 31 Lakh To Deceased Patient's Family [Read Order]

Nitish Kashyap
11 July 2019 3:25 AM GMT
Duty Of Care Does Not End With Surgery; NCDRC Orders Hospital And Doctors To Pay 31 Lakh To Deceased Patient
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The National Consumer Disputes Redressal Commission has ordered the Bombay Hospital located in South Mumbai area, to pay Rs. 30 lakh as compensation to a deceased patient's family on account of negligence shown by the hospital. The doctors have been directed to pay Rs. 1 lakh jointly.

President RK Aggarwal and Member M Shreesha heard the appeal filed by the deceased Ranjit Toprani's family challenging State Consumer Disputes Redressal Commission's order rejecting allegations of negligence against the hospital and the doctors.

Case Background

73-year-old Ranjit Toprani was operated by Dr. PB Desai. The patient died during the pendency of the Complaint. He was admitted on June 26, 2004 and operated for Carcinoma of the Sigmoid Colon. The patient was certified fit for surgery by the in-House Intensivists of the Hospital and Physician Dr. Sanjay Wagle, who went through the patient's entire medical history, which included urticaria, glaucoma tension in the eyes, chronic depression, for which the patient was under medication for the past 20 years.

Dr. Wagle went through all the medications and prescriptions of the patient and certified him fit for surgery scheduled to be performed on June 28, 2004 by Dr. Desai. After the surgery, the attendants and the patient were informed by Dr. Desai that the operation was successful and that the patient would be transferred to the ward.

According to the complainant, while the patient and his family members were waiting for the personnel to shift him to the ward, to their shock, the patient was shifted to the post-operative ICU, which is situated on the third floor of the hospital building. It was informed to the complainant Pankaj Toprani and his family members that the shifting was being done to keep the patient under observation.

The patient was awake and was mentally disturbed and questioned as to why he was brought there. On the next date, the patient complained of lack of sleep, pain in the abdomen, throat pain, breathlessness and of a choking sensation.

While the patient's attendant, waited outside the ICU, unaware of the patient's condition, suddenly there was a commotion inside the ICU and they saw the patient having convulsions and was being helped to breathe with the help of an Ambu bag. The attending Doctor, who is Dr. Desai's assistant informed the attendants that the patient had suffered a Bradycardia Attack and had to be resuscitated. The Ambu bag was replaced with the ventilator, the only one available in the ICU.

Moreover, Dr. Wagle was not available during this time and only after 2 ½ hours instructions were given for the patient to be shifted to the ICU on the 12th floor.

The patient was put on ventilator and never regained consciousness, he remained in the hospital for eight months till February 14, 2005 and thereafter he was taken home where he was on support of oxygen concentrator but in a coma. In the discharge summary given on the same day it was stated- 'Patient is unconscious in a vegetative state'.


The Commission referred to the Supreme Court's judgement in Smt. Savita Garg Vs. Director, National Heart Institute (2004) 8 SCC 56, wherein a principle was laid down that the onus shifts on the hospital to explain the exact line of treatment rendered and as to why a particular condition had occurred. Court said-

"In the instant case, it is for the Hospital and the team of Doctors to explain as to how the condition of Bradycardia had occurred. The contention of the Hospital and the treating Doctors that the Complainants did not give consent for CT Scan and therefore, there could not be any diagnosis and further that no expert evidence was led in the case is untenable in the light of the fact that admittedly the Patient had convulsions and was in a critical state and hence the Complainants had admittedly not given consent for the CT Scan."

Then, the Commission highlighted the observations of the Apex Court in the case of Dr.Laxman Balakrishna Joshi v. Dr. Trimbak Babu Godbole AIR 1969 SC 128, wherein duties of a medical practitioner were defined-

1. he owes a duty of care in deciding whether to undertake the case,

2. he owes a duty of care in deciding what treatment to give and,

3. he owes a duty of care in the administration of that treatment.

A breach of any of these duties gives a right of action for negligence to the patient, the judgement said.

In the instant case we are of the considered view that there is negligence in the treatment rendered to the Patient with respect to the time and manner in which the Patient was shifted from the 3 floor ICU to the 12 floor ICU, the unexplained cause for Bradycardia, which is not in recorded in accordance with what was laid down by the Hon'ble Supreme Court in Savita Garg (supra), the absence of medical record specifying the treatment rendered to the Patient between 9 am to 10.30 am in the ICU.

Thus, the State Commission's order was set aside and the Commission noted-

"Having regard to the fact that the Patient was in the Hospital for a period of 8 months; in a coma for a period of almost three years; the bills filed towards medical expenses amounting to 16,93,010.00 (excluding the medi-claim amount of 3,75,000/-) and the expenses incurred post-discharge, when the Patient was in a coma, and also the mental agony suffered by the Patient's family, the aspect of restitutio in integrum, and the Patient's age, we are of the view that awarding an amount of 30,00,000 to be paid by the hospital would meet the ends of justice. We also award costs of 1,00,000 to be paid by both the Doctors jointly and severally as we hold that 'Duty of Care does not end with the Surgery'. "

Click here to download the Order

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