In an interesting case of alleged medical negligence the NCDRC has refused to interfere with order of the Kerala SCDRC and disallowed the appeal against the Kerala State commission order of the year 2012.
Interestingly in the complaint related to the same case the Court of Chief Judicial Magistrate, Alappuzha had convicted respondent doctor under section 304 A IPC on 03.05.2011.
The Expert Committee appointed by the Police following the filing of the FIR which was headed by the District Medical Officer (DMO) gave the opinion that there was lack of reasonable care and exercise of skill in that particular case in timely detecting and preventing postoperative haemorrhage which was the cause of haemetometra and death of the subject.
In the final order NCDRC mentioned-
From a plain reading of the above (Expert opinion), it is evident that it is not based upon examination of the treating doctors or nursing staff of the respondent hospital. Its conclusions appear to be guided more by the post mortem report. If medical negligence has to be established, the standard of care and the following of medical protocol must necessarily be examined to arrive at a conclusion. In the case of criminal negligence to be established, mens rea must necessarily be established. The conclusion of the Expert Committee appointed under the DMO does not do so since its conclusion is that “there is lack of reasonable care and exercise of skill in this particular case in timely detecting and preventing post operative haemorrhage which is the cause of haemetometra and death of the subject”. The State Commission has therefore rightly disregarded the same. The State Commission has set out reasons for not being persuaded by the Expert Opinion placed before it. In light of the documentary evidence that the deceased patient had a history of bronchitis even during the previous delivery in the same hospital and was indeed provided the standard of care expected while in the respondent no. 1 hospital and the lack of evidence produced by the appellant to support its case that such medical care was not provided, the impugned order cannot be faulted.
The brief facts of the case
Appellant no.1’s wife, (deceased), was admitted on 20.05.2004 for her second delivery in the respondent no.1/ hospital as inpatient. The hospital conducted a detailed check-up of the deceased on 21.05.2004 and found that the deceased was healthy and decided to conduct a caesarean operation after going through all the previous medical records of the deceased. The caesarean operation was conducted on 22.05.2004 at around 12.50 pm using spinal anaesthesia and appellant no.3 was born around 01.03 p m. Appellant alleges that during the caesarean operation neither the general surgeon nor a senior gynaecologist were present. After the operation, appellant no.1 informed that the deceased was not feeling well and was having breathing problems. On 23.05.2004, appellant no.1 again informed respondents that the deceased was not feeling well and had breathing problems. However, the respondent instead of taking extra care, conducted only a routine check-up and found her to be completely fit. According to appellant no.1, the respondent never paid any heed to the request of the appellant no.1 to shift the patient/deceased to a better hospital. On 24.05.2004 the appellant again informed his wife’s condition and requested the respondent to allow him to shift to some other hospital. The respondents informed that they had all facilities including ventilator etc., being a super facility hospital and refused to shift the patient to another hospital. However, on 25.05.2004 at about 02.00 p m the respondents informed appellant no.1 that the condition of his wife was not satisfactory and due to insufficient staff in the hospital of the respondent to accompany the wife of the appellant no.1 to the another Hospital at Ernakulam which was only half an hour distance from the hospital. The respondents took the wife of appellant no.1 to the Medical Trust Hospital, Ernakulam at around 05.00 pm when the night duty staff nurses reached the hospital. However, on the way to the Hospital, the condition of the appellant’s wife worsened and she was brought back to the hospital of respondent no.1, where she was declared dead. Appellant no.1 immediately lodged FIR no.343 of 2004 with the Police Station, Alappuzha the same day. The appellants also filed an Original Complaint on 20.05.2006 before the State Commission, Kerala seeking compensation of Rs.50 lakhs for medical negligence, deficiency in service, mental agony etc.