Safety of patients from incompetent and negligent doctors and safety of doctors from undue harassment from unscrupulous litigants has been a perennial problem faced by the Medical Jurisprudence. But when a two judges bench of the apex court decided the case of Martin F. D'Souza v. Mohd. Ishfaq in February 2009 it directed that when a complaint or objection is raised against a hospital or doctor by an authority such as the consumer Forum or any criminal court then before issuing notice to the party against whom the complaint has been raised it should first refer the case to an expert and knowledgeable doctor or a board/panel of doctors, specializing in the same field, once they are done with their due diligence and it is observed and confirmed by the expert/panel/board that there is the presence of medical negligence only then a notice should be issued against the party in question, many consider that the balance has shifted in favor of the doctors as it is perceived that a team of doctors will always favor and give opinion in favor of its own fellows.

However, when a full bench of the apex court in May 2009 in the case of Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and Ors. Awarded unprecedented compensation of Rs.1,00,00,000/- to a techie against the hospital which while operating on Neurofibroma, an innocent tumor, gifted him acute paraplegia with an entire loss of control over his lower limbs, message was received that there are silver linings too within the dark clouds.

In the field of a medicine, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. Even a minute misestimation or fatuity in medical procedure in itself would not be conclusive of Negligence towards the patient. Inasmuch as a doctor takes action in a manner which is allowable by the medical and the court is satisfied that the patient was

being attended with required and proper skills and diligence. Even after this if a patient dies or is afflicted with a permanent ailment, it would be a hassle to blame the doctor to be guilty of negligence.

In this case, the operation was performed on 23rd October, 1990 and since then the victim caught paraplegia making him in need to go through continuous physiotherapy and medical care because of infection in the urinary tract and forming of bed-sores and various other problems. He then filed a complaint before the National Consumer Redressal Commission on 5th April, 1993 alleging utter and complete negligence on the a part of the doctors and therefore the hospital during the course of operation and claimed Rs. 4.61 cores as compensation under various heads.

The Commission on 16th February, 1999 directed the hospital to pay only a complete compensation of Rs.15,00,000/- to the complainant. Both the parties filed appeals within the apex court. The techie pleaded that the compensation given by the Commission was insufficient and was not equivalent with the harm and torments that he and his family members had gone through and which had curtailed the promising and lucrative career he had laid ahead for him. The apex court, after referring to several Global establishments in medicine, espied that the proper investigations preceding to the actual operation had not been administered.

It also found the allegation of the complainant true that the consent that had been taken was just for the aim of an excision biopsy which was an exploratory procedure, but the doctor had administered a complete excision removing the tumor mass and therefore the fourth rib thereby destroying the inter- costal blood vessels leading to paraplegia and had a Neuro-surgeon been related to the operation, this problem could well had been avoided.

Pertaining to its prior decision, the supreme court further held that the consent given by the complainant for the excision biopsy cannot, save in exceptional cases, by inference, be taken as an implied consent for a surgery.

The Supreme Court, while awarding an exemplary compensation of Rs.1,00,00,000/- has put down following rules and regulations which might act as signal to the consumer forums within the Approaching times:

• That a mere misjudgment or error in medical treatment by itself wouldn't be conclusive of medical negligence towards the patient.
   
• The understanding and grasp of medical practice and procedure available at the time of the operation and not at the time of trial, has relevancy .If a doctor reaches the standard of a responsible body of medical opinion, they are not negligent (Bolam's principle).
   
• That a balance has to be struck between the inflated and unreasonable demands of a victim and the identical insupportable claims of the party opposite to victim stating that nothing is payable. Sympathy for the victim doesn’t, and shouldn’t, hinder in the process of creating an accurate assessment, but if a case is formed out, the Court must not be reluctant or hesitant of awarding an adequate compensation.
   
• The quantity of compensation was computed keeping in mind that victim’s excellent career has been curtailed and there was, as of then, no probability of improvement in his condition, the compensation would make sure a stable and balanced income to him for a time when he would not be able to earn a living for himself.
   
• A person’s absolute right over his body has been re-affirmed by holding that unless the unapproved added or supplementary procedure is significant so as to rescue the life or safeguard the health of the patient and it might be irrational (as differed from being merely troublesome) to hold up the further procedure until the patient reclaims consciousness and takes a choice, a doctor cannot perform such procedure without his assent.

The courts, though at a snail’s pace, seem to cherishing the nascent law of tort in India. Though, it seems to be a remarkable amount of reimbursement, but the money awarded was only Rs.25,00,000 considering loss of future earnings of an person whose salary per annum as of now is Rs.28,00,000. It’s pittance compared to the 50,00,000 Pounds recently awarded to a British actress Leslie Ash during a very identical case by the Chelsea and Westminster Hospital.

Justice delayed but not denied.

Award Winning Article Is Written By: Mr.Vaibhav Sachdeva

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