DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

LAW OF TORTS
PROJECT

NAME-DEEKSHI CHAUDHARY
SEMESTER-Ist SECTION-A
TOPIC- MEDICAL NEGLIGENCE-VINITHA ASHOK V LAKSHMI
HOSPITAL

SUBMITTED TO-
PROF. L N MATHUR
ACKNOWLEDGEMENT
Firstly, I would like to thank my PROF.L.N MATHUR for

giving me such a golden opportunity to show my skills through

this project. The project is a result of an extensive research study,

hard

work and labour, that is put into to make it worth reading.

I wish to acknowledge that in completing this project I had

full support of my friends, seniors as well as my teacher. This

project

would not have been completed without the help of my

university’s library Dr. Madhu Limaye library and through

the university’s internet.

Thanking you.........
 INDEX
1) ACKNOWLEDGEMENT

2) INTRODUCTION

3) FACTS

4) CASE IN BRIEF

5) CASES REFERRED

6) JUGEMENT

7) MEDICAL NEGLIGENCE

 Liability under the Consumer Protection Act

 Liability under Tort Law
 Consent for medical treatment

8) CONCLUSION

9) BIBLIOGRAPHY
INTRODUCTION
My project deals with the case of Vinitha Ashok v Lakshmi hospital
which is based on Consumer negligence. In this case appellants
claim compensation for negligence in diagnosing problem. In view
of documents made on hospital record of appellant it was not found
that respondents committed error in diagnosing problem. All risks
were communicated to her and she was given time to reflect over.
Doctors were not guilty of negligence as they had acted in
accordance with practice accepted as proper by reasonable body of
medical men. Respondents were not found guilty of negligence .
FACTS
This case was decided in the Supreme Court of India on 25.09.2001
by Hon'ble Judges: S. Rajendra Babu and Mr. K.G. Balakrishnan, JJ. The facts of
the case are as follows:

The appellant (Vinitha Ashok) gave birth to a son on 6.6.1989 after

caesarean operation. On or about 3.2.1990 having suspected that
she was pregnant again, she and her husband went to Lakshmi
Hospital for consultation. The appellant was examined by Dr.
Santha Warriar, respondent No. 2. On examination, respondent No.
2 informed the appellant that she was pregnant and it was decided
to terminate the pregnancy for which 10.2.1990 was fixed. On
9.2.1990 lamineria tent was inserted when the appellant went to the
Hospital. On 10.2.1990 the appellant, her husband and her sister-in-
law went to the Hospital at about 8.30 a.m. Dr. Santha Warriar,
respondent No. 2, took the appellant to the labour room. At about
10 O'clock Dr. Somalatha, respondent No.3, informed the
appellant's husband that the appellant was bleeding profusely and
therefore, they have decided to conduct an operation. She also
informed the appellant's husband that the appellant was in a very
serious condition and it was better to inform her near relatives. At
about 4 O'clock the operation was over and the appellant's relatives
were informed that she was better but under sedation. Dr. Santha
Warriar informed the appellant's husband that it was a case of
Cervical Pregnancy and her uterus had been removed. The appellant
was discharged from the Hospital on 22.2.1990.Vinitha filed a
complaint against the respondents.

CASE
The appellant filed the complain before the National Consumer
Dispute Redressal Commission that respondents had not acted with
due care and caution required of medical professionals in
diagnosing the problem, in taking care to prevent the problem, in
the performance of their duties and lack of necessary facilities and
infrastructure at the Hospital. The appellant pleaded that the
Dilatation & Curettage (D & C) procedure was unnecessarily done
on her which led to other problems resulting in loss of uterus at a
very young age.

This complaint is resisted by the respondents by contending that

they have not been negligence to any extent either in diagnosing the
appellant's condition or in administering the required treatment;
that the appellant herself approached the respondents for
termination of pregnancy. Appellant was having a Cervical
Pregnancy extending to the lower segment of her uterus which is
very complicated and rare type of pregnancy which cannot be
diagnosed by clinical or vaginal examination particularly in the
early weeks of pregnancy; that Hysterectomy is a recommended and
established procedure for tackling excessive bleeding in the case of
Cervical Pregnancy and in the case of the appellant, Hysterectomy
had to be resorted to save her life when excessive bleeding started;
that such bleeding was not on account of any negligence in the
diagnosis or on account of any faulty procedure adopted in the
course of surgery .

The Commission analyzed the pleadings and evidence placed before

it and found that the allegation of the appellant that she had gone to
the Lakshmi Hospital, respondent No.1, only to consult about the
suspected pregnancy is false because there were some nothings in
which it had been found that the appellant had got her pregnancy
test done in some other private clinic which showed it was a
positive one.

It was not clear as to whey the appellant went to the Hospital on

9.2.1990 but the nothings in the documents produced before the
Commission indicated that 9.2.1990 was fixed for Tent Insertion. In
the nothings dated 3.2.1990 facts have been noted that the earlier
delivery was by a caesarean section and Medical Termination of
Pregnancy (hereinafter abbreviated as 'MTP] was fixed for
10.2.1990 and there were nothing about clinical and per vagina
examination made. Therefore, the Commission concluded that the
allegation that the second respondent without proper examination
presumed that it was a case of termination of pregnancy is
incorrect .

The Commission did not attach any importance to the non-

examination of Dr. Mohan, respondent No. 5, who was an
Anesthesiologist in the case, who had also made nothings in the
records of the hospital on which reliance was placed by the
appellant in support of her case that she had a normal pregnanc y .

The Commission further held that in the circumstances arising at

the time of laporotomy, hysterectomy had to be performed upon the
appellant and not on account of any negligence in the diagnosis and
treatment and in case of emergency the operating doctor has wider
discretion about the treatment. On that basis, the Commission came
to the conclusion that the respondent acted with due care,
circumspection and professional skill and competence and there was
no negligence of any kind on their part in any manner.

The learned counsel for the appellant addressed two lines of

argument –firstly, that the appellant had a normal pregnancy and
MTP was unnecessary and secondly, without proper diagnosis by
ultrasound, the respondents conducted, MTP, which in fact was
done negligently leading to excessive bleeding necessitating
hysterectomy.

The learned counsel for the respondent submitted that they cannot
be held to be liable being negligent for not being Ultrasound test;
that there was no general practice anywhere in Kerala to do
Ultrasound in MTP case; that normal procedure was adopted
according to the guidelines issued by the Central Government.

The stand of the respondents is that it is impossible by any kind of

test to detect the Cervical Pregnancy caused by the fertilized ovum
getting attached to some point in the cervical canal and start
growing from there and ectopic pregnancy is at a site that is not
designed either to receive the concepts or to permit it to develop.

Following medical authorities were also cited on behalf of the

respondents to show the characteristics of a cervical pregnancy:

(a) Lenders Operative Gynecology 1 , book on gynecology, it was

observed that 'the treatment of cervical pregnancy is surgical and
the condition usually requires an abdominal hysterectomy'.

(b) 'Cervical Pregnancy' 2 by, it was noticed that "most Obstetricians

would never see a cervical pregnancy.

In the present case, the appellant did not have any history from
which presence of cervical pregnancy could have been suspected.
The appellant had not complained of any significant bleeding or
painless bleeding or bleeding with pain at any time. In the
circumstance,s the doctors could not have found that the appellant
either in respect of diagnosis or in the matter of treatment
administered.

The main dispute between the parties is that it was a normal

pregnancy and not a Cervical Pregnancy. There was examination
and cross- examination on the question whether it was a case of
cervical pregnancy or abnormal pregnancy where peritoneal
bleeding was caused by instrumental perforation. If the appellant
had ectopic pregnancy in the cervical canal as stated above, the
only remedy is Hysterectomy in which event, performance of the
test of Ultra sonogram would not have improved the matter at all.
At best, Ultra sonogram would have disclosed that uterus was
empty and that fact does not establish as to where the pregnancy is
located.

Respondent No.2 claimed in her counter affidavit as well as in her

statement that she had explained all possible risks and dangers
involved to the appellant and her husband when they came to her on

1
6th Edition by Richard F Mattingly
2
by Macro Antonio Pelosi, Vol. IV
3.2.1990 and 10.2.1990 was fixed for MTP so as to give them
sufficient for MTP. It is possible for the doctors to have done the
MTP or within a short period after 3.2.1990 and that fact that there
was sufficient gap between the medical examination of the
appellant and MTP which is not less than a week is a circumstance
which tropoblastic the respondents' version that time was given to
the appellant to reflect over the matter.

In the present case, though large amount of medical literature had

been placed and expert evidence had been put forth before the
Commission to indicate that Ultra sonography would not have
established ectopic oregnancy, some text books indicate that it was
possible to identify such problem. But when two views even if
possible, the general practice in the area in which the respondents
practised such procedure was not followed and, therefore, no
negligence can be attributed to the respondents on that ground.

The argument advanced on behalf of the appellant is that in

pregnancy with vaginal bleeding one must find out a cause of the
bleeding before doing any procedure especially D&C, which may
carry a risk of uterine injury of perforation. There is no material
placed before the Court or foundation laid in evidence to show that
there was vaginal bleeding in the present case before the
proceedings commenced.

The Hospital, respondent No.1, is alleged to have committed breach

of its primary duties, as noticed earlier, for (i) inadequate
supervision of physician; (ii) inadequate staffing and (iii) failure to
provide ancillary services to the appellant. Regulation 4 of the
Medical Termination of Pregnancy Act, 1971 provides that it is
incumbent on the part of respondent No. 2 to obtain duly filled
consent forms and respondent No. 1 is responsible to keep them in
a cover which is mostly secret. So far as this aspect is concerned,
we have adverted to the comments made by the Commission that the
records had been taken away by the appellant and her advisers on
her behalf and xerox copies of the same were available with them,
which were produced as exhibits along with the complaint made to
the Commission.

The learned counsel submitted that the services of Dr. Somalatha

P.Shenoy, Assistant Gynecologist, respondent No.3, was sought for
only after complications started and it was only thereafter when the
whole procedure was over and bleeding could not be stopped and
matters reached at point of no return, as a last resort to save the
appellant, Dr. C. Balachandran, Surgeon, respondent No.4, was
called to save her life. These circumstances are thus sufficient to
hold that respondent Nos. 3 and 4 were grossly negligent.

The appellant contended that the defence raised by the respondents

was that the profuse bleeding was on account of tropoblastic
invasion/penetration but it could be so only if the condition had
arisen at cervix of the uterus which is a neop basic condition and an
abnormal form of pregnancy which comes under the head of Molar
Pregnancy and Choriocarcinoma which are malignancy pregnancies
and to rule out that possibility histopathological examination was
required. But, as a fact, there is no such material arising in the
present case. Even if such a complication had arisen it would not
have helped the appellant in any manner. In any event, cervical
pregnancy had to be attended to and appropriate procedure had to
be adopted for terminating the same, even if by doing total
Hysterectomy. In the light of this fact, all arguments advanced on
behalf of the appellant on his aspect pale into insignificance.

In present case there had been a lot of discussion on question of

diagnosis in the decision whether MTP should be done or not;
whether non-performance of Ultra sonography has resulted in any
negligence; whether there has been any negligence on the part of
the concerned doctors in inserting the lamineria tent and allowing it
to stand over for more than four hours of whether there has been
any damage done to any of the organs of the appellant by the
instruments used at the time of Laporotomy and D & C.
Conclusions was drawn upon the evidence produced on record and
after detailed consideration of medical and oral evidence and the
evidence recorded by the Commission with respect to contentions
urged on behalf of the respondents, that is, there has been no
negligence on their part.

On any one of the aspects upon which the learned counsel for the
appellant has addressed us, he has not been able to establish that
there has been negligence on the part of the respondents. The case
of the appellant was of such a kind that it was difficult even for a
doctor to diagnose on the evidence on record as to whether she had
ectopic pregnancy or not.

CASES REFERRED
Bolam v Frien Hospital Management Committee 3

Question raised by the appellant was that there has been negligence
in failure to take precautions to prevent accidental injury. The
argument on this aspect is based on the dictum of the direction
given to the jury by McNair J. in this case was as under

"I myself would prefer to put it this way: a doctor is not guilty of
negligence if he has acted in accordance with a practice accepted as
proper by a responsible body of medical men skilled in that
particular art. Putting it the other way round, a doctor is not
negligent, if he is acting in accordance with such a practice, merely
because there is a body of opinion that takes a contrary view."

Achutrao Haribhau Khodwa v State of Maharashtra & ors. 4

In this case it was held:

"The skill of medical practitioner differs from doctor to doctor. The

very nature of the profession is such that there may be more than
one course of treatment which may be advisable for treating a
patient. Courts would indeed be slow in attributing negligence on
3
[1957]1 WLR 583
4
[1996]2 SCR 881
the part of a doctor if he has performed his duties to the best of his
ability and with due care and caution. Medical opinion may differ
with regard to the course of action to be taken by a doctor treating
a patient, but as long as a doctor acts in a manner which is
acceptable to the medical profession and the court finds that he has
attended on the patient with due care, skill and diligence and if the
patient still does not survive or suffers a permanent ailment, it
would be difficult to hold the doctor to be guilty of negligence."

Bolitho (administrator of the estate of Bolitho (deceased)) vs.

City and Hackney Health Authority 5

In this case House of Lords said that:

The expert evidence tendered though can be accepted as proper

there may be circumstances in which expert evidence cannot be
relied upon as establishing proper level of skill and competence. If
the record discloses expert evidence both for and against a
particular procedure, whether the evidence adduced is r reasonable
and responsible and whether such evidence is capable of
withstanding the local analysis is for the court of decide.

Cassidy v Ministry of Health 6

This case was referred by appellant’s counsel to contend that a

hospital authority is responsible for the negligence of its medical
staff.

But, as it was already found, in the present case, no negligence has

been established on the part of the medical staff of respondent No.
1. Therefore, we find this decision also to be of no relevance.

JUDGMENT
Judgment was given by Rajendra Babu, J.

5
(1997) 4 AER 771
6
(1951) 2 KB 343
In the light of the discussion made, we find that the appellant has
not been able to establish the case of negligence on the part of the
respondents and, therefore, this appeal stands dismissed. However,
in the circumstances of the case, the parties shall have to bear their
respective costs.

MEDICAL NEGLIGENCE
Negligence is the breach of a legal duty to care. It means
carelessness in a matter in which the law mandates carefulness. A
breach of this duty gives a patient the right to initiate action
against negligence.

Persons who offer medical advice and treatment implicitly state

that they have the skill and knowledge to do so, that they have the
skill to decide whether to take a case, to decide the treatment, and
to administer that treatment. This is known as an “implied
undertaking” on the part of a medical professional. In the case of
the State of Haryana vs Smt Santra 7 , the Supreme Court held that
every Doctor “has a duty to act with a reasonable degree of care
and skill”.

Doctors in India may be held liable for their services individually

or vicariously unless they come within the exceptions specified in
the case of Indian Medical Association vs V P Santha 8 . Doctors are
not liable for their services individually or vicariously if they do
not charge fees. Thus free treatment at a non-government hospital,
governmental hospital, health centre, dispensary or nursing home
would not be considered a “service” as defined in Section 2 (1) (0)
of the Consumer Protection Act, 1986.

However, no human being is perfect and even the most renowned

specialist could make a mistake in detecting or diagnosing the true
nature of a disease. A doctor can be held liable for negligence only
if one can prove that she/ he is guilty of a failure that no doctor
with ordinary skills would be guilty of if acting with reasonable
care . An error of judgement constitutes negligence only if a

7
[2000]5 SCC 182
8
AIR 1996 SC 550
reasonably competent professional with the standard skills that the
defendant professes to have, and acting with ordinary care, would
not have made the same error .

In a key decision on this matter in the case of Dr Laxman

Balkrishna Joshi vs Dr Trimbak Bapu Godbole, the Supreme Court
held that if a doctor has adopted a practice that is considered
“proper” by a reasonable body of medical professionals who are
skilled in that particular field, he or she will not be held negligent
only because something went wrong.

Doctors must exercise an ordinary degree of skill . However, they

cannot give a warranty of the perfection of their skill or a
guarantee of cure. If the doctor has adopted the right course of
treatment, if she/ he is skilled and has worked with a method and
manner best suited to the patient, she/ he cannot be blamed for
negligence if the patient is not totally cured .

Certain conditions must be satisfied before liability can be

considered. The person who is accused must have committed an act
of omission or commission; this act must have been in breach of the
person’s duty; and this must have caused harm to the injured
person. The complainant must prove the allegation against the
doctor by citing the best evidence available in medical science and
by presenting expert opinion .

In some situations the complainant can invoke the principle of res

ispa loquitur or “the thing speaks for itself”. In certain
circumstances no proof of negligence is required beyond the
accident itself. The National Consumer Disputes Redressal
Commission applied this principle in Dr Janak Kantimathi Nathan
vs Murlidhar Eknath Masane 9 .

The principle of res ipsa loquitur comes into operation only when
there is proof that the occurrence was unexpected, that the accident
could not have happened without negligence and lapses on the part
of the doctor, and that the circumstances conclusively show that the
doctor and not any other person was negligent.

9
2002(2)CPR 138
Liability under the Consumer Protection Act
In 1995, the Supreme Court decision in Indian Medical Association
v VP Shantha brought the medical profession within the ambit of a
'service' as defined in the Consumer Protection Act, 1986 1 0 This
defined the relationship between patients and medical professionals
as contractual. Patients who had sustained injuries in the course of
treatment could now sue doctors in 'procedure-free' consumer
protection courts for compensation.
The Court held that even though services rendered by medical
practitioners are of a personal nature they cannot be treated as
contracts of personal service (which are excluded from the
Consumer Protection Act). They are contracts for service, under
which a doctor too can be sued in Consumer Protection Courts.
A 'contract for service' implies a contract whereby one party
undertakes to render services (such as professional or technical
services) to another, in which the service provider is not subjected
to a detailed direction and control. The provider exercises
professional or technical skill and uses his or her own knowledge
and discretion. A 'contract of service' implies a relationship of
master and servant and involves an obligation to obey orders in the
work to be performed and as to its mode and manner of
performance. The 'contract of service' is beyond the ambit of the
Consumer Protection Act, 1986, under Section 2(1)(o) of the Act.
The Consumer Protection Act will not come to the rescue of
patients if the service is rendered free of charge, or if they have
paid only a nominal registration fee. However, if patients' charges
are waived because of their incapacity to pay, they are considered
to be consumers and can sue under the Consumer Protection Act.

Liability under tort law

Under civil laws, at a point where the Consumer Protection Act
ends, the law of torts takes over and protects the interests of
10
AIR 1996 SC 550
patients. This applies even if medical professionals provide free
services. In cases where the services offered by the doctor or
hospital do not fall in the ambit of 'service' as defined in the
Consumer Protection Act, patients can take recourse to the law
relating to negligence under the law of torts and successfully claim
compensation. The onus is on the patient to prove that the doctor
was negligent and that the injury was a consequence of the doctor's
negligence .Such cases of negligence may include transfusion of
blood of incorrect blood groups ,leaving a mop in the patient's
abdomen after operating ,unsuccessful sterilisation resulting in the
birth of a child ,removal of organs without taking consent
,operating on a patient without giving anaesthesia, administering
wrong medicine resulting in injury ,etc.

Consent for medical treatment

Consent is material to all medical treatments, with the exception of
emergent medical care, when consent can be waived/deferred. The
basis for recognizing consent to medical treatment is the
individual’s right to autonomy or self-determination.

Consent to treatment could be expressed or implied by the patient’s

conduct. Once a patient has come to the doctor for treatment and
paid the professional fee, he is said to have impliedly consented to
the treatment; such a consent being valid only for examination and
not for the performance of any procedure.

For there to be a valid consent, it is necessary to ensure that the

consent is always expressed in writing. Often standard consent
forms only indicate that the general nature and purpose of the
treatment have been explained to the patient. They are not always
conclusive of the fact that the patient consented to the procedure in
question. In Chatterton Vs. Gerson 1 1 , the court held that “getting
the patient to sign a pro forma expressing consent to undergo an
operation ‘the effect and nature of which have been explained to
11
[1981 1] 1 AII E.R.257.265
me’ as was done here in each case, should be a valuable reminder to
everyone of the need for explanation and consent...The consent
would be expressed in form only, not in reality.”

For the consent to be valid in law, it must be an informed consent.

The patient must consent to the treatment after understanding the
nature of the treatment. Before this, he must have some information
about the procedure itself. Without appropriate/adequate consent, a
doctor might face the risk of proceedings for assault/causation of
injury, in case of any complication arising from the medical
procedure. Therefore, to protect himself in case of future litigation,
it is important for a doctor to have a written consent form, where it
should be specified that the procedure, including its risks, has been
explained to the patient, and the patient has thereafter decided to
go ahead with the treatment. It is advisable to get the form signed
in the presence of an independent witness apart from a family
member/attendant of the patient. For high risk cases, it is advisable
to have a separate form specifying the details of the added risks and
the nature of the procedure.

CONCLUSION
I appreciate the decision of Supreme Court in saying that:

“The appellant has not been able to establish the case of

negligence on the part of the respondents and, therefore, this
appeal stands dismissed.”

BIBLIOGRAPHY
WEBSITES
1) www.manupatra.co.in
 2) http://#hlen&source=hp&q=medical+negligence+in+india&aq.
html
3) http//www.issuesin medicalethics.org/1530a116.html
4) http//www.halsburys.in/medico-legal-aspects- of-consumers-
law-concerning.html

BOOKS
1) “The Law of Torts” Ratanlal and Dhirajlal