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ASHOK KUMAR SINGH VERSUS STATE OF BIHAR

2015 CRILJ4352, HIGH COURT OF PATNA


DECIDED ON: 18.05.2015
BENCH STRENGTH: 1
CORAM: J. ASHWANI SINGH
In the instant case the complainants brother was taken to the clinic of
petitioner No. 1, Dr. Ashok Kumar Singh where he was operated for hernia
but unfortunately the patient died post operation. The allegation of the
complainant was that; the death of the patient was cause due to the
medical negligence by the petitioners. The police registered the case
against the petitioners under Section 304-A of the Indian Penal Code.
Subsequently, the instant complaint came before the learned Judicial
Magistrate-1st Class, who accepted the same and registered it as a
complaint and then summoned the petitioners to face trial for the offences
punishable under Sections 304-A and 420 read with 34 of the Indian Penal
Code.
The counsel for the petitioner argued that both the petitioner are qualified
doctors and after initial examination of the patient the petitioner found his
condition very serious and advised him for operation of hernia. The
attendants were informed about the seriousness of the patient and the
risk involved in the operation. And after taking the consent of the patient
and attendant a successful operation was performed on the patient but
his condition started deteriorating subsequently and the petitioners did
their best to save the life of the patient but unfortunately, the patient
died.
It was also contended by the petitioners that the summons passed by the
learned Magistrate are patently bad as the same are issued without the
application of judicial mind.

The Court observed that, in the happening of an unfortunate even there is


tendency to put blame on the doctors. However, the medical professionals
are put on a different pedestal from ordinary mortals and are duly
protected if their actions are taken in good faith.
The Court analysed sections 80, 81, 88, 92 and 93 of the Indian Penal
Code, 1860 and held that, the medical professionals, who act in good
faith, should not be punished. A medical professional could only be liable
for his acts or conduct when the same falls below the standards of a
reasonably competent practitioner in the concerned filed. The court held
that there was no prima facie material against the petitioners for issuing
summons for criminal medical negligence. The relevant extract from the
judgement have been reproduced herewith for the sake of reference:
The only other section under which cognizance has been taken is section
304-A of the Indian Penal Code. Section 304-A of the Indian Penal Code
states that whoever causes the death of a person' by a rash or negligent
act not

amounting to culpable homicide shall be punished with an

imprisonment for a term of two years or with fine or with both.


17. It would show up from the assertions made in the
complaint petition that there is a dubious and omnibus
charge of carelessness against the applicant No. 1 and the
anesthetist, Dr. Vikash Kumar, who has not been supported
by an independent medical master. Without any expert
medical report it is hazardous to straight-way reach an
inference that there is a prima facie case against the
petitioners for committing the offence of criminal medical
negligence.
18 one should need to ponder upon the issue that after the
occurrence of some unfortunate event, there is propensity
to put allegation upon medical experts.it has been observed
that

the

relationship

between

doctor

and

patient

is

changing in this commercial medical practice which has


witnessed a trend in launching medical prosecution against

the medical practitioners in recent times. On the other side,


there can be negative result of the treatment and the
patient suspects negligence on the part of the doctor due to
their ailing.
19. If any action taken by the doctor in good faith then they
are immune from criminal action taken by any one on them.
However, the medical professionals are duly protected if the
action is taken in good faith. The criminal law has constantly
put the restorative experts on a platform not the same as
customary mortals.
A careful scrutiny of Sections 80, 81, 88, 92 and 93 IPC
would make it clear that the Indian Penal Code, 1890 has
taken care to ensure that a medical professional, who act in
good faith, should not be punished.
30. Despite the protection given to the medical professionals
under the penal code,
It has been observed by the Supreme Court that many
unsatisfied patients are approaching the court for their
dispute resolution.
The increasing trend of litigation by unsatisfied patients
drew attention of the Supreme Court in more than one case.
There are heap of malicious prosecution and false cases
against medical practitioners which has been ruled out by
the honble cour, until there is serious or gross negligence
established against them. The court specifically told that a
medical practitioner cannot be held liable while performing
the treatment which happened due to error of judgement or
option. He will be liable when he has not followed the
reasonable standards of his field.

High Court quashed the entire criminal proceeding of medical


negligence pending before the Judicial Magistrate. The Court held
that, the no criminal case under the provision of the Indian Penal
Code could be filed against the doctor for any unfavourable
outcome if the doctor has taken sufficient care and acted in good
faith.

K BALAMURUGAN VERSUS THE SECRETARY TO GOVERNMENT,


HEALTH AND FAMILY WELFARE DEPARTMENT
(2015-5-LW93), HIGH COURT OF MADRAS (MADURAI BENCH)
DECIDED ON: 31.07.2015
BENCH STRENGTH: 1
CORAM: R. MAHADEVAN, J.
The facts of the case are that the wife of the petitioner was admitted in
the District Government Hospital, for delivery and she gave birth to a
baby girl on 29.05.2011 and the third respondent is the Duty Doctor in the

said Hospital at the relevant time. On 02.06.2011, the third respondent


performed Family Planning Operation on the wife of the petitioner and
thereafter, her health got deteriorated and hence, she was shifted to
Theni Medical College Hospital for further treatment, wherein she was
declared dead.
Subsequently, the petitioner lodged a complaint with the Thenkarai Police
Station and a case in Cr. No. 238 of 2011 came to be registered and the
dead body was sent for post-mortem. In the final opinion regarding the
cause of death, it is opined that 'the deceased would appear to have died
of retained placenta and its complication thereof 17 hrs. to 21 hrs. prior to
autopsy.
The Honble Court held that the wife of the petitioner died due to the
negligent act of the Doctor who attended her at the time of delivery, as
the placenta was not properly removed from her uterus. The court taking
a cue from another case stated that a poor man who cannot go to a
private hospital, goes to a government hospital for the treatment with a
hope that he would get a proper treatment. The relevant extract from the
judgment has been reproduced herewith for the sake of reference:
"16. Any doctor is the best friend of a sick person. A poor person unable to take
treatment in a private hospital, with a hope of getting treatment and becoming disease
free goes to the government hospital. In this case the doctor who conducted surgery
because of his callous attitude took away the life of a woman, which is not
permissible in a civilized society and needs to be condemned. Such type of negligence
causes hardship to patients and hence sufficient care of normal prudence is legitimate
expectation of every patient.
17. In our country majority of patients requiring medical care and
treatment are below poverty line, illiterate and semi-literate, who fails to
understand the complicated medical terms and procedure and even the functions of
various organs and effect of removal of such organs.many patients can be seen lying
in the corridors of the hospitals, after the admission, for want of beds or etc. Poor
patients unable to get effective but costly diagnostic procedures, lying in the corridors
for want of bed has become very common. They are ignorant of the treatment

procedure and are ready for any treatment whatever doctor decides and as long as it is
free and cheap also.
18. The medical environment for poor and needy is very hostile as there is lack of
quality treatment and facility. Poor heart patients and cancer patients do have to wait
for months for diagnostics and many a times they even die before their turn comes.
What choice do these poor patients have? Any treatment of
whatever degree is a boon or a favour, for them. The stark reality is
that for a vast majority in the country, the concepts of informed
consent or any form of consent, and choice in treatment, have no
meaning or relevance. They are left with no option and hence the form of
consent and choice in treatment seems meaningless here.
The court also raised a question that against whom such negligence could
be attributed. The Court then stated that the Government Hospitals are
run by the State and the Medical Officers are duty bound to provide
medical assistance for preserving the human life. The relevant extract
from the judgement has been reproduced herewith for the sake of
reference:
20. Article 21 of the Constitution of India guarantees right to life,
which includes right to get meaningful health care, especially during
maternity/delivery period. Article 21 imposes an obligation on the
state to safeguard the right to life of every person. Hence The
Government hospitals run by the State and the Medical Officers
employed therein are duty bound to provide better medical facility
and preserve human life. Failure to do so results in the violation of
Article 21 and the offenders are liable to be punished..
21. The Code of Medical Ethics drawn up with the approval of the
Central Government under Section 33 of the Indian Council Medical
Act and observed is as follows:"Every doctor whether at a Government Hospital or otherwise has
the professional obligation to extend his services for protecting life.
The obligation being total, absolute and paramount, laws of

procedure whether in statutes or otherwise cannot be sustained


and, therefore, must give way."
The Court while directing the hospital and the government to pay
compensation to the petitioner also asked them to initiate appropriate
action against the Respondent no. 3 i.e., the doctor in order to fix the
liability and recover the said amount from her.
This order by the High Court of Madras directed the government
to provide compensation to the petitioner for the death of his
wife which was caused due to the negligence on the part of the
government doctor performing family planning operation on the
deceased. While highlighting the sufferings of the poor patient
and inadequate services provided by the government hospitals
the court looked at the protection provided under the Article 21
of the Indian Constitution. The honorable court held that the
State via government hospitals have obligation under Article 21
of the Indian Constitution to provide meaningful health care.
P.R. NIVEDITHA VERSUS Y. RAMALAKSHMAMMA
IV (2015) CPJ 602 (NC), NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION, NEW DELHI
DECIDED ON: 16.09.2015
BENCH STRENGTH: 2
CORAM: J.M. MALIK (PRESIDING MEMBER), DR. S. KANITKAR (MEMBER)
In this case, the patient approached the petitioner/OP 1. Dr. P. Nivedita
with the complaints of irritation in his left eye. Next day Dr. P. Nivedita and
Dr. K. Bharani Kumar Reddy (OPs 2 and 3) performed the cataract surgery
on the patient and discharged him. As the pain and swelling in the
patients eye continued, he was referred to another hospital by the
Opposition Parties where it was discovered that the patient has suffered
extensive damage in his operated eye and therefore removed the same.
Therefore, the complainant/patient filed a case of medical negligence on

the Hospital and doctors in the District Forum which awarded the
compensation to the patient/complainant. The argument of the learned
counsel for the Opposition Party was that, the doctors conducted the
operation in a Government Hospital and therefore, they were not liable
under the Consumer Protection Act.
The Commission citing the Honble Supreme Court judgement in Pravat
Kumar Mukherjee v. Ruby General Hospital and Ors. 1 stated that
services rendered by the Government Hospitals will fall under the ambit of
the Consumer Protection Act irrespective of the fact whether the receiver
was charged or not for those services. The relevant extract from the
judgement have been reproduced herewith for the sake of reference:
it has been observed by the court that government
hospital/healthcare

center/dispensary

etc

where

government provide free service on payment of nominal


charges or fee. The person availing such services would fall
within the ambit of the expression service as defined in
Section 2(1)(o) of the Act, irrespective of the fact that the
service is rendered free of charge to persons who do not pay
for such service. Free service would also be 'service' and the
recipient a 'consumer' under the Act."
56. Once the patient has started consuming the services, it
implies that the complainant has hired the services. It may
be possible that during the relevant time, the payment was
not fixed or paid. But it was either rejected, conceded or
due to verifiable obligation of a respectable calling in such
crisis in such emergency cases.
Commission held that the services offered by a government
hospital falls within the expression services provided under the
Consumer Protection Act although such services are rendered
free of charge. The Commission also held that the hospital and its
1 II (2005) CPJ 35 NC

operating doctor breached their duty of care by failing to advice


the patient for the post-operative care follow-up and precautions.

KISHORI VERSUS POONAM SUHAS MALI


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
DECIDED ON: 03.11.2015
BENCH STRENGTH: 2
CORAM: J.M. MALIK PRESIDING MEMBER, DR. S. KANITKAR MEMBER
In this case the complainant approached the Dr. Kishori (OP-1) with the
complaints of irregular periods along with cough and fever. Dr. Kishori
ignored the problem of patient of not having periods and advised
medicines

for

cough

only.

Subsequently

the

patient/complainant

approached Gastroenterologist-Dr. K.C. Kokal (OP 2). The OP-2 advised


some blood test and USG of upper abdomen and advised medicines

accordingly. Later on, the patient approached Dr. Mamta Shriyan, a


Gynecologist, wherein patient was diagnosed as three months pregnancy
and was advised medical termination of pregnancy (MTP).
The allegation of the complainant is that, the OP-1 failed to check her
pregnancy status even though he was a Gynaecologist. The OP-1 merely
asked her to consult the Gastroenterologist Dr. Kokal (OP-2). The OP-2 also
failed to ascertain her pregnancy status. And therefore, the OP-1 must be
held negligent in not taking necessary steps to detect her early
pregnancy; which caused irreparable loss to her.
The Commission observed that the OP-1 didnt examine the patient
properly and had paid no attention to the patient's history of 1 1/2
months loss of menses (amenorrhea). The Commission also found that
the OP-1 was aware that patient had amenorrhea since 1 1/2 months
because he had specifically mentioned in the prescription as "patient has
not got periods". The relevant extract from the order have been
reproduced herewith for the sake of reference:
7. the examination of patient has not been done by the
OP-1and in addition he prescribed drugs Zentac, syrup
Grilinctus. The patient history was not carefully observed by
the

OP-1

in

which

1/2

months

loss

of

menses

(amenorrhea),was mentioned, but he clearly specified in the


prescription as patient has not got periods". So it can be
assumed

that

the

OP-1

was

aware

that

patient

had

amenorrhea since 1 1/2 months, but the OP did not clinically


test the patient to confirm the pregnancy or advised USG or
a routine urine pregnancy test (UPT) to rule out pregnancy
status of the patient. The submission of OP-1 was rejected
stating that there was no need to carry out PV examination,
again on 3.3.2008, without consulting and taking the
permission of the patient. The OP-1is an experienced
gynaecologist and failure to diagnose early pregnancy itself
amounts to the act of negligence. It was a casual and
careless approach; it was a dereliction in the duty of care

With respect to OP-2, the Commission observed that there was an act of
omission on the part of OP-2 for not advising the USG of whole abdomen
as the USG of the entire abdomen could have detected the early
pregnancy. The relevant extract from the order have been reproduced
herewith for the sake of reference:
9.
It

is

appropriate

Gastroenterologist,

to
ought

note

that,

OP-2

being

to

have

instructed

USG

concerning entire midriff, rather than just upper guts to rule


out different causes of queasiness and retching, including
Pregnancy. Thus, according to our perspective, it was an act
of exclusion and not a sensible practice by OP-2. The entire
abdomen scan could have identified early pregnancy in the
instant case, and the Barium supper study could have been
finished with alert or even be stayed away from
The Commission held that, in their view, OP-1 was solely responsible and
negligent for breach of duty and failure in the duty of care and therefore
the complainant deserves just and proper compensation. The relevant
extract from the order have been reproduced herewith for the sake of
reference:
In the present case, in our view, there has been negligent breach
of duty and failure in duty of care. It is very important that, when a
female patient, who approaches a gynaecologist with the history of
loss of periods for more than 1 1/2 months',the gynaecologist has
the uttermost and primary duty of suspecting about the pregnancy
and informing it to the patient whether she is pregnant or not.
OP-1 was solely responsible and negligent for breach of duty and
failure in the duty of care. It is important that, when a female
patient, who approaches a gynaecologist with the history of loss of
periods for more than 1 1/2 months', it is the bounden and primary
duty of the gynaecologist to suspect and to confirm, whether, the

patient is pregnant or not. We are fairly shocked, what averted OP-1


to perform PV examination or to do USG or a basic UPT to affirm
pregnancy in the instant patient. Thus, in this manner OP-2
depended totally upon such solution of experienced gynaecologist
(OP-1); which result came about into radiation introduction, and
finished into MTP. There are, nonetheless, uncommon circumstances
in which a lady, who is ignorant of her pregnancy, might get an
endless number of stomach x-ray beams over a brief period. Under
such circumstances, the lady ought to examine the conceivable
dangers with her specialist
Commission observed that when a female patient approaches a
gynaecologist with the problem of not facing her periods for more
than 11/2 months than it is the duty of the gynaecologist to
suspect and to confirm, whether, the patient is pregnant or not.

K.P. MUSTHAFA VERSUS JANE TREESA THOMAS AND ORS


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
DECIDED ON: 19.11.2015
BENCH STRENGTH: 2
CORAM: J.M. MALIK, J. (PRESIDING MEMBER) AND DR. S.M. KANTIKAR,
MEMBER

The relevant facts of the case are, one complainant named Mrs. Thomas
was admitted to Fathima Hospital and delivered a male child by caesarean
operation (LSCS). After the delivery, the new born acquired jaundice and
subsequently meningitis. The complainant made an allegation that, not
even a single nurse working in the hospital is qualified. It was also alleged
by the complainant that the baby acquired infection because of the lack of
cleanliness in the hospital.
The Commission after hearing the argument form both the sides held that,
as far as the question of infection to child is concerned hospital cannot be
held liable because there was no negligence on the part of the hospital.
However, the OP1 was held liable for deficiency in service and unfair trade
practice because of untrained nurses working in the hospital. The
Commission taking reference of a case stated that when a patient dies,
there is a tendency to put all the blame on the doctors since the things
have gone wrong so somebody should be held liable. The relevant extract
from the judgement has been reproduced herewith for the sake of
reference:
At the point when a patient meets the death bed or
endures some accident, there is a propensity to accuse the
specialist for this. Things have turned out badly and, along
these lines, someone must be punished for it. Be that as it
may, it is surely understood that even the best experts,
what to say of the normal expert, now and again have
sometimes failure. A legal counsellor can't win each case in
his expert profession however without a doubt he can't be
punished for losing a case gave he showed up in it and
made his submission.

In the instant case the cause of meningitis was not due to hospital
infection
With respect to the question of the untrained staff, the Commission found
that, the proprietor of the Fatima Hospital started the hospital without a

qualified nurse in 1989. Their nurses were trained subsequently in private


licensed hospitals. Keeping this in view the Commission held that the
hospital is liable for the deficiency in service and unfair trade practices.
The relevant extract from the order have been reproduced herewith for
the sake of reference:
9. On the basis of the foregoing discussion, we don't locate
any

therapeutic carelessness with respect to the OP-

doctor's facility and different specialists, during delivery or


in the post-delivery period. The complainants filed to prove
with apt proof that both the infants endured meningitis
after

the

delivery

because

of

healing

contamination or hospital borne infection.

facility

borne

But, in the

instant case we hold the OP 1 liable for deficiency in service


and unfair trade practice because of untrained nurses
working in the hospital. Absolutely, the nature of nursing
consideration and healing facility administrations will be
influenced. Consequently, we affix the liability upon OP-1 to
that degree as it were.
The Commission in this case held that the hospitals will be liable
for keeping untrained staff. The Commission observed that the
untrained nurses working in a hospital will undermine the quality
of nursing care and other hospital services. The OP-1 was held
liable and was directed to pay Rs.1 Lakh to each of the
Complainants along with the interest of 9% p.a. from the date of
filing the Complaint till its realisation.

DR. VAISHALI JADHAV VERSUS DR. VILAS DHONDIRAM JAGTAP


DECIDED ON: 02.12.2015
BENCH STRENGTH: 1
CORAM: SHRI SANJAY C. KHAIRNAR
In the instant case, the accused was the owner of an X-ray and
Sonography clinic and two inspections were conducted at the clinic of the
accused out of which the last one was done by the complainant who
worked as Assistant Medical Officer of Health in Pune Municipal
Corporation. In the said inspection, the complainant noticed certain
discrepancies/irregularities and breach of PCPNDT Act and Rules. The
accused was alleged to have not obtained the consent of concerned
pregnant women for carrying USG tests on them. He was also alleged to
have not have maintained the Form F in prescribed format.
Charges were framed against the accused under section under section
4(3), 5(1), & 29 of the PCPNDT Act, 1994 and Amendment 2003. The
accused pleaded not guilty and said that all the procedure of the PCPNDT
Act had been complied with.

The court also relied on Section 29 which states that all records, charts,
forms, reports, consent letters and all other documents required to be
maintained under the Act and rules shall be preserved for a period of two
years.

The court further observed that the submission of incomplete records and
failure to mention the names of few patients in the register were serious
offences which hint at foul play. The legislation was passed with the intent

to ban the abhorrent practice of female foeticide and to end ban sex
selection and prevent the misuse of the pre-natal diagnostic techniques.
The legislation provides deterrent punishment to stop the inhuman
practice of female foeticide. The court held since the offence committed is
against society at large, the accused did not deserve leniency and also
would not be entitled to the benefits of section 4 of the Probation of
Offenders Act.

Taking into consideration the fact that the accused had not committed the
offence of sex selection, simple imprisonment for a term one year each
along with a fine of Rs. 5000 each was awarded to the accused for
contravention of sections 4(3), 5(1) and 29 read with rules 9 (4) and 9 (8)
and respectively. He was also sentenced to simple imprisonment of 3
months and a fine of Rs. 1000 due to contravention of rule 18 (v) (ix)
under section 25. The court directed that the terms are to run
concurrently. The relevant extracts from the order have been reproduced
herewith for the sake of reference:
The offence committed by accused is against society at large.
Hence the accused is not entitled to receive the benefit of section 4
of the Probation of Offenders Act, 1958.
85) Here, I would like to state that, while deciding Point No. (h) I find
that, in Form F of though accused signed it however, he has not
put

his

Name,

Registration

number.

This

is

minor

irregularity/discrepancy in nature in the Form F of Puja Walke.


Hence, accused is entitled to deserve leniency while passing
sentence on that count.

86) So far irregularity/discrepancy in respect of point No. (f)


for not submitting complete report of USG test conducted on
pregnant women during the month of 1st January to 31st
January 2012 and not mentioning their name in register is of

serious nature which smells some foul-play while conducting


USG test on above mentioned women. The object and reason
behind the present enactment is to disallow pre-natal
diagnostic strategies for determination of sex of the foetus
prompting female foeticide. Such manhandle of and misuse
of technique is prejudicial and discriminatory against the
female sex and influences the pride of the lady. The present
act

is

gone

with

to

banning

utilization

of

both

sex

determination technologies preceding origination and in


addition abuse of Pre-natal Diagnostic Techniques for sex
choice, premature births and to manage such procedures
with

perspective

to

guarantee

their

investigative

perspective for which they are planned.A legislation is


required to regulate the use of such techniques and to
provide deterrent punishment to stop such inhuman act.
Hence, accused does not deserve leniency.

In this case the accused was a doctor and was convicted doctor
guilty who was imprisoned and upon whom a fine was imposed for
not filing the forms properly under Pre-Conception and Pre-Natal
Diagnostic Techniques Act, 1994 (PCPNDT Act)

UMAKANT KISAN MANE VERSUS THE DEAN, RAJAWADI MUNICIPAL


HOSPITAL
DECIDED ON: 21.12.2015
BENCH STRENGTH: 2
CORAM: J. A.S. OKA & J. K.R. SHRIRAM

The case of the petitioner was that the respondents were directly
negligent and were the proximate cause for losing the fingers of the
petitioner. The facts of the case are that certain fluids were injected to the
petitioner to cure an attack of convulsion. In the following days swelling,
discolorations, blackening in the fingers were observed. Gangrene was
developed by the petitioner for which his fingers were amputated. It was
the case of the petitioner that the amputation is result of the negligence
on the parts of the doctors and staff that were treating him.

Discussing the power of the court to award damages in cases of medical


negligence it said that damages can be awarded only where negligence is
direct on the part of the public authority and was a proximate cause for
the injury of the victim and not in every case like if there was a minor
infraction of public duty.

Referring

to

Municipal

Corporation

of

Delhi,

Delhi v. Uphaar

Tragedy Victims Association2 the court held that the compensation as


a way of public law remedy need not be need not only be a nominal
palliative amount but something more and it can be by way of making
monetary amends for the wrong done and by way of exemplary damages,
exclusive of any amount recoverable in a civil action based on tortuous
liability.

The question of whether there was direct negligence on the part of


respondents which was the proximate cause for the petitioner losing his
fingers was answered in affirmative by the court. It said that there was no
explanation as to why care was not taken by the treating doctors and
2 (2011) 14 SCC 481

nurses to see that the medicines were not administered intraveins and the
long delay between when the gangrene was noticed and its treatment.
The court rejected the contention of the respondents that it was difficult
for them to give personalized attention to all the patients in the hospital
considering their sheer volume in the municipal hospital. The duty of care,
according

to

the

court

was

greater

especially

when

the

drugs

administered were known to cause gangrene if flown out of the vein. It


was held wrong that neither the doctors nor the nurses even bothered to
check on the patient or they came but did not bother to check if
everything was alright.

Regarding consent form as well, the court held that it was not properly
filled because while the form was in English, the signature of the patients
father was in Marathi. Moreover it did not have signature of the witnesses
to

show

that

the

consequences

of

the

operation

were

properly

communicated to the patients father. The relevant extract from the


judgment has been reproduced herewith:

If the medication had been given properly inside the vein


and the doctors and nurses were not negligent, the injury
could have been avoided and the gangrene could not have
set in and the fingers could have been saved. It is a fit case
of gross negligence on the part of the doctors and the
nurses

of

the

respondents

to

allow

this

to

happen.

Moreover,it appears from the inquiry committee report that


the doctors were negligent in informing the relatives of the
petitioner about the nature of the ailment and the nature of
the operation. There was no proper form filled because the
consent form is in English whereas the patient's father has
signed in Marathi

it was very much strange situation that when public visiting hours
in the hospital are restricted and duty to take care of the patient is
that of the employees of respondents how they can ask the
relatives to look after the patient. In any event that would not
lessen the duty of the doctors and nurses treating the patient. It is
the duty of the hospital authorities to provide proper care and
attention to the patient when he is admitted in the hospital. We find
the conduct of the doctors and the nurses to be outrageous. It also
shocks the conscience of the court. There has been wanton
disregard on the part of the doctors, the nurses and the
respondents. If the doctors and the nurses had any regard for the
patient, they would have, particularly when they are aware that the
drugs that were administered may have the effect of causing
gangrene if it did not go properly into the vein, taken proper care
and not been negligent. Moreover, there was some problem in the
hand was noticed more than 24 hours later. All this leads to only
one conclusion -gross negligence and wanton disregard towards the
patient by the doctors and the nurses and the patient is a helpless
victim

Applying the principle of res ipsa loquitor, the court held that it was for the
respondents to prove the absence of any negligence and due care and
attention on its part, in which it has failed. Since the doctors and the
nurses who were held liable were working in public hospital, the vicarious
liability of the State was attached to their negligence. Hence the court
held that there was gross negligence and wanton disregard on the part of
the respondents due to which the petitioner lost his fingers and has
violated his fundamental rights. The Court also stated that the quantum of
damages shall be determined on particular facts and circumstances of the
case. The relevant extract from the judgment has been reproduced
herewith:

While determining and ascertaining the compensation, the age,


income, impairment of future earning capacity and the number of
dependents is determining factors. There is no straight jacket
formula to be applied staraightway. There is no uniformity or
yardstick followed in awarding damages for violation of fundamental
rights

The Court held that under medical negligence the negligence


should be direct and should be proximate cause for injury to the
victim and not a minor infraction. The court also said that as a
public law remedy it has the power to award exemplary damages.
However the quantum of damages shall be determined on particular
facts and circumstances of the case.