Expert opinion not mandatory in every case of medical negligence

While dealing with medical cases, doctors need to be extremely careful about what they write in the records, what they tell the patient and how they tell the patient. Similarly, when faced with a medico-legal litigation, doctors need to be very careful about the words used in the evidence affidavit and the accuracy of documents annexed with the affidavit. Sometimes, a sentence in the evidence affidavit or a statement made during the course of examination in court may contribute significantly to the outcome of the case. The case V. Kishan Rao Vs Nikhil Superspeciality Hospital (SC, Civil Appeal no. 2641 of 2010) provides some lessons in this regard.

In this case, the complainant's wife, a hypertensive and diabetic female, was admitted in the hospital with high-grade fever, chills, loose motions and headache. Ultrasound of abdomen showed hepatomegaly and cholecystitis. Initially the patient was treated with i.v. fluids and Inj. Lariago; however, subsequently when investigations revealed that peripheral blood smear was negative for Malarial parasite, Widal test was positive and bilirubin was raised on liver function tests, treatment for typhoid and acute hepatitis was given, instead of Malaria. The complainant claimed that the i.v. fluids administered to his wife contained abnormal particulate matter, about which the hospital did nothing even upon informing. Subsequently, the patient's condition deteriorated and she was shifted to another hospital where the peripheral blood smear revealed presence of Malarial parasite, and the Widal test was negative. The patient eventually succumbed to the disease process, and death certificate given by the second hospital revealed "Cardio-Respiratory Arrest and Malaria" as cause of death. The complainant therefore filed a negligence case against the first hospital in District Consumer Disputes Redressal Forum. In their defence, the Managing Director of the hospital, who was not the treating physician, filed an affidavit in the District Forum. Appearing on behalf of the hospital, the Managing Director deposed that "I have not treated the patient for Malaria fever". The hospital also claimed that the patient's husband was non-cooperative during the treatment and refused to get certain investigations done and also refused oral and i.v. fluids for his wife. The District Forum observed that the hospital had delayed filing of the case-records even after the forum issued an order, and there was some overwriting in the case sheets. In addition to the contradictory findings as regards the Malaria and Typhoid test results of the two hospitals, the District Forum also relied upon the admittance of the hospital that "I have not treated the patient for Malaria fever", and thus held the doctors / hospital guilty of medical negligence.

The case was subsequently challenged in both State and National Consumer Disputes Redressal Commission (SCDRC and NCDRC), and, as against the District Forum, both the commissions ruled in favor of the hospital, on the grounds that the complainant failed to establish negligence on the part of the doctors / hospital, and also that no expert opinion was produced by the complainant to substantiate his claim of negligence.

Aggrieved by the order of NCDRC, the complainant filed an appeal with the Supreme Court (SC) of India. The SC observed that this particular case where the patient suffered from Malaria but did not receive treatment for the same was not a complicated case and hence expert opinion was not required to decide on the issue of negligence. The SC reiterated that Consumer Forum may require expert opinion while deciding complicated cases, but for simple cases like these, expert opinion is not required. The discretion of deciding upon complexity of the case rests with the respective Consumer Forum. Thus, the SC upheld the original order of the District Forum and pronounced the hospital / doctors guilty of medical negligence.

Important learning points from this case are as follows:-

1)--In Consumer Forum, an expert opinion is not always required to decide upon the issue of medical negligence. The discretion whether to seek or not seek an expert medical opinion lies with the Consumer Forum.

2)--The two duties of the medical expert providing his opinion are -- (i) to clarify the technicalities of the matter in such a simple language that a common man can understand it; (ii) to assist the forum in deciding whether the act of the doctor / hospital constitutes negligence or not.

3)--Though contesting parties may present an expert opinion in support of their claim, the consumer forum is not bound by such an opinion or the lack of it.

4)--In this case, the SC pointed out the delay in submission of records on the part of the hospital, and also the overwriting in the case sheets. The importance of promptly reproducing clean and accurate medical records cannot be overemphasized. Electronic, printed medical records are likely to lend more credibility to the claims.

5)--When in doubt, repeat an investigation before finalising the line of treatment, and if the patient refuses to get the test repeated, make a clear note of the same in the case records, with due attestation by the patient / patient's kin.

This case provides some insights into the subject of medical. Medico-legal cases such as these should actually be incorporated in the curriculum of medical graduates and post-graduates, so that doctors are more aware of their legal accountability when they come out in the real world.


(This write-up is only a general advisory and not a substitute for qualified legal opinion. Reader discretion is therefore recommended. If you find this write-up useful, please share it with your doctor-friends. TechnoScope Systems is a venture by doctors, for doctors. To know more about how we can assist you, please visit our website. You can write to the author at: sohonica@gmail.com)


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