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The Hon’ble Supreme Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221, case has preferred Bolitho test to Bolam test.
Bolitho test: A legal test that modified the 1957 Bolam test, which the English courts had been using to determine medical negligence by a doctor or nurse. In Bolitho v City and Hackney Health Authority, 1997, Lord Browne-Wilkinson restricted the boundaries of Bolam, stating
(1) "The court should not accept a defence argument as being ‘reasonable’, ‘respectable’ or ‘responsible’ without first assessing whether such opinion is susceptible to logical analysis”, and
(2) "However, where there is a body of medical opinion which represents itself as ‘reasonable’, ‘respectable’ or ‘responsible’ it will be rare for the court to be able to hold such opinion to be other than represented”.
The Supreme Court redefined medical negligence saying that the quality of care to be expected of a medical establishment should be in tune with and directly proportional to its reputation.
The decision also says that the court should take into account patient’s legitimate expectations from the hospital or the concerned specialist doctor.
In the instant case we are of the considered view that there is negligence in the treatment rendered to the Patient with respect to the time and manner in which the Patient was shifted from the 3 floor ICU to the 12 floor ICU, the unexplained cause for Bradycardia, which is not in accordance with what was laid down by the Hon’ble Supreme Court in Savita Garg, the absence of medical record specifying the treatment rendered to the Patient between 9 a.m. to 10.30 a.m. in the ICU.
Having regard to the fact that the Patient was in the Hospital for a period of 8 months; in a coma for a period of almost three years; the bills filed towards medical expenses amounting to 16,93,010.00 (excluding the mediclaim amount of 3,75,000/-) and the expenses incurred post discharge, when the Patient was in a coma, and also the mental agony suffered by the Patient’s family, the aspect of restitutio in integrum, and the Patient’s age, we are of the view that awarding an amount of 30,00,000/- (Thirty Lakhs) to be paid by the Hospital would meet the ends of justice.
We also award costs of 1,00,000/- (One Lakh) to be paid by both the Doctors jointly and severally as we hold that ‘Duty of Care does not end with the Surgery’.
In the result, this Appeal is allowed in part and the order of the State Commission is set aside and we direct the Hospital to pay an amount of 30,00,000/- (Thirty Lakhs) and costs of 1,00,000/- (One Lakh) to be paid by both the Doctors jointly and severally. Time for compliance four weeks from the date of receipt of a certified copy of this order, failing which the amount shall attract interest @ 9% p.a. from the date of filing of the Complaint till the date of realisation.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 101 OF 2016 (Against the Order dated 27/11/2015 in Complaint No. 87/2006 of the State Commission Maharashtra) 1. PANKAJ R. TOPRANI & 3 ORS. Vs Bombay hospital and others
Dr KK Aggarwal
Padma Shri Awardee
President Elect Confederation of Medical Associations in Asia and Oceania (CMAAO)
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India
Past National President IMA