27 May 2010

Compensation for administering wrong medicine: High Court

Upholding the decision of the National Human Rights Commission, the Delhi High Court in a recent judgement has held that compensation can be awarded in a situation where administration of a wrong medicine to an otherwise healthy person which results in an irreversible deterioration of such person's health. It was argued by the appellants that the imposition of compensation of Rs. 1 lakh by the NHRC was excessive. The High Court, however, no only upheld the compensation so granted but also imposed exemplary costs for challenging such compensation.

The High Court inter alia observed as under;

25. The last submission made by Mr. Sharma, the learned counsel for the Petitioner, is that the compensation of Rs. 1 lakh awarded to Respondent No.1 by the NHRC was excessive. It is stated by learned counsel for the Petitioner that since Ms. Sunita was a chronic patient of cerebral seizure for more than six months “it is not established that the condition of the patient has worsened, if at all, by the administration of wrong medicine.”
26. Administering a wrong medicine to an otherwise healthy person which results in an irreversible deterioration of such person's health is far too serious a violation of that person‟s right to life under Article 21 of the Constitution. As pointed out by the NHRC, it is indeed a grave violation of the human rights of such person.
27. The UOI ought not to be permitted to advance the above submission about 'excessive' compensation when its own Complaint Committee has held its staff to be negligent in administering a wrong medicine. The report of Professor Madhuri Behari, HOD, Neurology, AIIMS confirms that there are serious side effects that can ensure if 'Thioril' is administered. The rare side effects include “convulsions or seizures, fast breathing, fast pulse, changes in blood pressure, pale skin and tiredness.” The report confirms that Thioril is a Schedule H drug meant for treating psychotic disorders and is not meant to be casually prescribed and administered. Respondent No. 1 went from the CGHS dispensary to the chemist‟s shop to buy the medicine in the trust that what was indented by the CGHS was safe and appropriate for being administered to her daughter. That trust was belied when a wrong medicine was indented. Ms. Sunita continues to battle the irreversible and deleterious effects such administration of wrong medicine has had on her health.
28. The gravity of the problem of administering a wrong medicine was noticed by the Supreme Court in Spring Meadows Hospital v. Harjot Ahluwalia. There the nurse of a private hospital had asked the father of a two-year old child to get an injection, Lariago, as written down by her after noting, albeit incorrectly, the name of the medicine as prescribed by the treating doctor. The minor child when injected with the said drug instantly collapsed and was ultimately reduced to a vegetative state. The National Consumer Disputes Redressal Commission (NCDRC) while holding the doctor and the nurse negligent also found the hospital to be vicariously liable. It awarded compensation of Rs.12.5 lakhs to the minor child and Rs.5 lakhs to the parents of the child for the “acute mental agony…by reason of their only son having been reduced to a vegetative state requiring life-long care and attention.” The Supreme Court affirmed the judgment of the NCDRC and observed:
“9. …..The influence exhorted by a doctor is unique. The relationship between the doctor and the patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner. It is a great mistake to think that doctors and hospitals are easy targets for the dissatisfied patient. It is indeed very difficult to raise an action of negligence. Not only there are practical difficulties in linking the injury sustained with the medical treatment but also it is still more difficult to establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer expense of bringing a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country. In recent days there has been increasing pressure on hospital facilities, falling standard of professional competence and in addition to all, the ever-increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence. That apart there has been a growing awareness in the public mind to bring the negligence of such professional doctors to light. Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonably (sic) skill of a competent doctor.
10. Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly.” (emphasis supplied)
29. In the above case it was urged by the hospital that it took the initiative in getting the child subsequently treated at AIIMS without payment and therefore the award of damages for mental agony to the parents was unjustified. Rejecting the said contention, the Supreme Court observed in para 14 as under:
“We, however, fail to appreciate this argument advanced on behalf of the learned counsel for the appellants inasmuch as the mental agony of the parents will not be dismissed in any manner merely seeing the only child living in a vegetative state on account of negligence of the hospital authorities on a hospital bed. The agony of the parents would remain so long as they remain alive and the so-called humanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents.”
30. More recently, in Post Graduate Institute of Medical Education and Research, Chandigarh v. Jaspal Singh (2009) 7 SCC 330 the Supreme Court affirmed the compensation awarded by a consumer forum for the mistake committed by the attending doctors and staff of the PGI Institute at Chandigarh in transfusing the wrong blood group resulting in the death of a patient. Although the above decisions were rendered in the context of the CPA, this Court finds them to be equally applicable in the facts of the present case which is one of clear admission by UOI of the negligence on part of its CGHS dispensary in indenting a wrong medicine based on the conclusions of its own Complaints Committee which enquired into the matter. In the circumstances, the award of Rs. 1 lakh as compensation can only be termed as a „token‟ reparation. This Court therefore fails to appreciate why the UOI had to file the present writ petition to challenge the award by the NHRC of such relatively modest compensation to Respondent No.1.

31. This Court is constrained to observe that this is a vexatious litigation needlessly pursued by the UOI. Instead of accepting the finding of NHRC and agreeing to pay the 'token' compensation awarded to Respondent No.1, the UOI has dragged her to this Court, thus prolonging her agony and preventing her from getting the compensation amount for over two years. The petition therefore deserves to be dismissed with exemplary costs.

No comments: