A doctor is vicariously liable for the negligence committed by members of his team which was assisting in the treatment, held the National Consumer Disputes Redressal Commission while dismissing an appeal.
The case was regarding the death of a three year old child named Arshiyai in 2004, while she was undergoing treatment for cancer at Mohan Dai Owal Cancer Treatment and Research Foundation Hospital , Ludhiana, under the supervision of one Dr .Raman Arora.
A medicine used for treatment called 'Vincristine' had to be administered intravenously. However, this medicine was given intrathecally (through back bone injection) by Doctor Harjith Singh Kohli, with assistance of Doctor Vandana Bhambri, who were assisting Dr. Arora. After the injection, the situation of the patient worsened. Within two weeks, Arshiya breathed her last.
Her parents Prashant Sareen and Anjail Sareen 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, and awarded a compensation of Rs. 16,80,749 to her parents.
Challenging this award, appeal was filed in the NCDRC by the doctors and the hospital. The appellants contended 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.
Terming this argument to be 'callous' and 'irrelevant', the NCDRC said that the perusal of the medical literature filed did not anywhere state that the patient suffering from this leukaemia will expire within any particular period of time. It also did not anywhere state that there is no hope of survival in such a type of cancer.
"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", said the NCDRC bench of Justice R K Agarwal and M Shreesha.
Referring to the SC decision in Smt. Savita Garg Vs. Director, National Heart (2004) 8 SCC 56, the NCDRC held that the onus is on the Hospital and Doctor to explain the exact line of treatment rendered which resulted in the incident. In the instant case, there is no explanation forthcoming as to why the Patient, who had substantially improved after three cycles that Chemotherapy had shown complete deterioration after 05.07.2004, said the Commission.
The histopathology report had opined that the wrong administration of drug could have accelerated the death. Dr Bahl, who had given the injection, said during cross-examination that it was only after the incident that he became aware that Vincristine could be fatal if not given intravenously. The State Commission had referred to an expert opinion given by a team of doctors from Indian Medical Association that a mistake occurred during the treatment Arshiya.
Dr. Raman Arora contended that he had not administered the injection, and denied liability. This contention was not accepted on the ground that Dr. Arora was answerable for the actions of his team members. The Commission observed :
"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".
It 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", the Commission added.
Based on the decision of Supreme Court in Achutrao Haribhau Khodwa vs. State of Maharashtra & Ors ., 1996 (2) SCC 634 , the Hospital was also held vicariously liable for the acts of the Doctors.
The appeal was resultantly dismissed.
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