The National Consumer Disputes Redressal Commission (NCDRC) on May 24, 2019, in the case of Mohan Dai Oswal Cancer Treatment & Research Foundation & Ors. v. Prashant Sareen & Ors., has held that a doctor is vicariously liable for the acts of his team which assists him in every sphere in rendering treatment to the patient.
The NCDRC Bench comprising of Justice R.K. Agarwal and M. Shreesha was hearing an appeal filed by the Mohan Dai Oswal Cancer Treatment & Research Foundation and its doctors against the impugned order passed by the Chandigarh State Consumer Commission in 2005 wherein it had found the hospital guilty of medical negligence and awarded a compensation of Rs. 16,80,749.
The case was initiated after the death of a three year old child named Arshiyai in 2004 who was undergoing treatment for cancer at Mohan Dai Owal Cancer Treatment and Research Foundation Hospital, Ludhiana, under the supervision of one Dr. Raman Arora.
A medicine used for treatment called 'Vincristine' had to be administered intravenously. However, this medicine was given intrathecally (through back bone injection) by Dr. Harjith Singh Kohli, with assistance of Dr. Vandana Bhambri, who were assisting Dr. Arora. After the injection, the situation of the patient worsened. Within two weeks, Arshiya breathed her last.
Her parents Prashant Sareen and Anjail Sareen filed complaint before the State Commission in 2005, claiming compensations for medical negligence. The Commission found that the death of Arshiya was due to the wrong method of administering the drug, and awarded a compensation of Rs. 16,80,749 to her parents. Aggrieved by the said order, the doctors and the hospital moved NCDRC.
The appellants appearing before the Commission denied any role of alleged lapses in the treatment and contended that the child was at advanced stage of cancer and would have died anyway.
However, on perusal of the medical literation, the Commission termed the argument to be 'callous' and 'irrelevant’ and said that “The medical literature filed does not anywhere state that the Patient suffering from this kind of cancer i.e. leukaemia will expire within any particular period of time. It also does not anywhere state that there is no hope of survival in such a type of cancer. Be that as it may, the point for consideration is not whether the Patient would die anyway. Such a stand, we hold is not only callous, but also irrelevant to the issue in hand. The issue to be considered herein is as to whether there is any negligence by the Hospital and Doctors in administering the Vincristine, which hastened the death of the Patient.”
The Commission placed reliance on the Supreme Court decision in the case of Smt. Savita Garg v. Director, National Heart (2004) 8 SCC 56, and observed that the onus is on the Hospital and Doctor to explain the exact line of treatment rendered which resulted in the incident. In the instant case, there is no explanation forthcoming as to why the Patient, who had substantially improved after three cycles that Chemotherapy had shown complete deterioration after 05.07.2004.
The learned counsel appearing for Dr. Raman Arora contended before the Commission that the doctor is not liable as he had not administered the injection.
However, the Commission rejected the contention and said that "The contention of the Learned Counsel that Dr. Raman Arora, who was head of the Medicine Department and has also written 'the Protocol' is not liable as he did not administer the medicine, is totally untenable in the light of the fact that admittedly the entire standard protocol was given by Dr. Raman Arora and moreover the entire treatment was rendered under his care and is therefore he is liable for any acts/ commission or omissions done by his team or the assistants who assisted him in rendering treatment to the Patient.”
Further, the Commission also said: "Having regard to what the Hon'ble Supreme Court has laid down about ' Duty of Care' to be followed by medical professional, viewed from any angle it cannot be construed that ' Duty of Care' of the treating Doctor/ head of the department, who is in this case has written the 'Protocol', ' Ends' with giving the Prescription. At the cost of repetition, we are of the considered view that the Doctor is vicariously liable for the acts of his team which assists him in every sphere in rendering treatment to the Patient.”
The Commission also held that the hospital is vicariously liable for the acts of the Doctors based on the decision of Supreme Court in Achutrao Haribhau Khodwa v. State of Maharashtra & Ors., 1996 (2) SCC 634.
Thus, the Commission dismissed the appeal.
