NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION
(CIRCUIT BENCH AT PUNE,
FIRST APPEAL NO.625 OF 2006
(From the order dated 17.12.1997
in Complaint No. 89/1994 of the
State Commission, Maharashtra)
Research Centre,
12 New Marine Lines,
Mumbai-400 020 .. Appellant
Versus
1. Sharifabai Ismail Syed
Residing
at 3/16, Sydamhan
Compound,
Byculla,
Mumbai-400
003.
2. Rafique Syed
Residing
at 3/16, Sydamhan
Compound,
Byculla,
Mumbai-400
003
3. Dr. (Miss) Mehar Dadachanji
Medical Practioner,
C/o
Research Centre,
12
New Marine Lines,
Mumbai-400
020
4. Dr. Keki E. Turial
Medical
Practioner,
C/o
Research Centre,
12
New Marine Lines,
Mumbai-400
020 .. Respondents
BEFORE :-
HON’BLE
MR. JUSTICE M.B. SHAH, PRESIDENT
For the Appellant : Mr. Chitale J.M,, and
Mr. S. De,
Advocates
For the Respondent No.1 : Mr.
Syed,
Son of the
Respondent.
For the Respondent No.3 : Mr.
S.B. Prabhawalkar,
Advocate.
Dated the 25th
February, .2008
O R D E R
M.B.SHAH, J., PRESIDENT
Can
a consulting doctor (radiologist) defend
an apparent mistake in noticing a tumor on the basis of MRI film by contending
that MRI was taken by a senior
resident doctor, despite the fact that
the said report is endorsed by the
consulting doctor by mentioning
that the tumor was at D10-11 position outside the spinal cord?
In
our view, such defence cannot be accepted.
The consulting radiologist who signs the report is responsible for
misreading or not reading/looking at the
MRI film correctly. In such a case, this
would be gross negligence. It is the
duty of the consulting doctor to correct
such errors.
Brief facts:
This
appeal is filed by the Bombay Hospital & Research Medical Centre, Mumbai,
against the judgment and order dated 17.12.1997
passed by the State Consumer Disputes Redressal Commission,
In
this appeal it is the contention of the Hospital that only the Radiologist
would be liable to pay the compensation because of negligence on her part. With regard to
Neurologist, it is contended that he is no more.
It was contended that Complainant No.1,
Ms.Sharifabi Ismail Sayed, developed suspected tumor in her back outside the
spinal cord and was having difficulty in walking, but could sit comfortably.
For that, she was admitted to one
On
account of this, on 3.6.1993, under the supervision of Dr.Dadachanji, another
MRI was carried out and as per the report tumor was noted at D-7-8 position.
Hence, on 4.6.1993 second operation ‘laminectomy’ was performed which lasted
for about 6 hours, and, according to Dr.Turel the tumor was removed. For this
purpose, the Complainant was required to stay in the hospital from 21.5.1993 to
28.6.1993 and was required to incur heavy expenditure for medical treatment.
On the basis of the aforesaid
facts, it was contended that there was gross negligence on the part of the
hospital and the doctors in performing the uncalled for operation. Hence,
Complaint No. 89 of 1994 was filed before the Maharashtra State Consumer
Disputes Redressal Commission, claiming a sum of Rs.5,83,888/-.
That
complaint was partly allowed and the Appellant,
Against
that order, the
As
against this, Complainant No.2 who is appearing in person submitted that not
only the hospital but the doctors are equally
responsible for the deficiency in service. He heavily relied upon the second MRI report which is produced on record
stating that tumor was at D-7-8 of the spinal cord. He also contended that it
was the duty of the Neuro Surgeon to scan the MRI film before proceeding with
the operation.
As
against this, learned counsel for Dr.Dadachanji submitted that there was no
mistake on her part because there was a standard protocol by which the Senior
Resident Doctor, on duty, was to carry out the scan. The scan was actually
performed by a technologist and the entire procedure was supervised by the
Senior Resident Doctor.
The
attending Consultant, namely, Dr.Dadachanji was not required to routinely
monitor the scan as she has to attend other duties in the hospital. The
consultant relies on the Senior Resident Doctor who is a qualified Radiologist
to perform a complete and accurate scan of the patient. The consultant is
mainly concerned with making the report on the scan taken and the duty of the
consultant is purely confined to preparation of reports on test carried out by
others. It is pointed out that the consultant neither carries out the test nor
identifies the pathological levels nor supervises the same and she is not the
administrative head. It is contended that when the final films are documented
from the computer monitor, only detailed views of the spine are provided, and,
these are presumed to be correctly labelled by qualified Radiologist, i.e. the
Senior Resident Doctor. These are, therefore, placed before the Consultant and
the Consultant makes report on the basis of the final lablled film put up
before him/her by the Senior Resident Doctor. It is contended by the learned
counsel for Dr.Dadachanji that because of the wrong labelling by the
technicians, the mistake occurred, and, therefore, she is not at all
responsible.
On
behalf of the Neuro Surgeon, Respondent No.4, before the State Commission, it
is contended that he performed the operation on the basis of the MRI scan
report to remove the tumor.
In
appeal, on behalf of Dr.Dadachanji an affidavit has been filed on 8th
May, 2007, wherein it is contended that:
.(1). With a mala fide intention
and ulterior motive to disown its liability vis-à-vis the acts of para-medical
staff of the hospital, bald, baseless, and frivolous allegations appeared to
have been made against her in the grounds of appeal on behalf of the hospital without
substantiating the same;
.(2). The hospital appointed her as
a specialist in MRI to interpret the MRI scan,
placed before her by the technicians and doctors employed by the
hospital;
.(3). It is the technician’s job
to perform and reveal the scan correctly;
.(4). She was expected to ensure a
daily output of at least 20 to 25 cases; and,
.(5). Appellant hospital more often
than not employ technicians not technically qualified who did not even hold a
basic science degree.
It
is further submitted that her contentions are supported by the affidavit filed
by Dr.Jimmy Nadershaw Sidhva an eminent
Radiologist of international repute.
Findings:
At
the outset we have to state that the State Commission has rightly observed that
the case was to be decided in the back drop of almost all admitted facts.
For
appreciating the contentions we would first refer to the report dated
“Plain and post
contrast MRI of the dorsal spine was performed using serial sections in
sagittal and axial planes. Both T1 and T2 weighted images were obtained.
Inhomogeneous
enhancing heterogeneous mass is seen
in the dural space on the left side at D-10-11 The mass is isointense on the T1 weighted images and shows multiple
hypointensities within it on the T2 weighted images. These hypointensities
probably represent areas of clarification within it.
There is extension of the mass into the left neural
foramina at the D-10-11 level. There
is no extension beyond the neural foramina.
Conclusion:
Inhomogeneous, mixed sigma, intensity intradural mass within the left lateral
dural space at D-10-11
which causes significant cord compression.
This could either be a meningioma or a neurofibroma, the former being more
likely”.
Further,
on the basis of the complaint, an
inquiry was held by the Secretary, Association for Consumer Action on Safety of
Health and it submitted its report on 18.5.1996, after recording the statements
of the concerned persons.
“.I. I have gone through the file and films
submitted by you and gather the following facts:
.1. Statement made by the Complainants:
Ms.Sharifa
Ismail Sayed, aged 67, was suspected, in May, 1993, to have a tumour in the
spinal canal and was referred by Dr.D.K.Mody at
.2. Statement made by Dr.Meher Dadachanjani:
Dr.Dadachanjani
states that according to protocol in the MR Department, she relies on the
senior resident doctor to perform the scan, her role being limited to reporting
on the completed scan and consultation. When scans of the spine are carried out, the localization of the level of
the disease is made using a large coil. As a
routine this image, proving the location of disease, is not provided to the
consultant on the final film. The
consultant thus makes the report based on the senior resident’s identification
of the level. During the second scan, however, she was present when the scan
was done and found the tumour lying at D-7-8 and not at D-10-11 as reported
earlier. She states that the error in the
earlier report followed ‘incorrect labeling by the resident doctor’.
………
……….
Queries:
.1. “Is it possible to misjudge the level of the
tumour on MR?
Dr.Dadachanji has
clearly stated in her report that an error
was made in the report on the first MR. This was attributed by her to incorrect
labeling by the resident doctor.
.2. Is it proper and correct for the Neuro
Surgeon to open the spinal cord when the tumour was not found at the expected
site?
I
have studied the MR scan dated
An additional point to be made here is that
despite the best efforts of the treating clinician it is not possible to
envisage each and every eventuality and seek consent for each and every step
that may be necessary. Several additional steps are taken in many operations in
good faith and in the best interests of the patient. Were we take consent for each and every such
step, the consent form would be several sheets long and prove meaningless to
the patient and relatives. It is also not possible to interrupt an operation to
take consent for a particular step made necessary by an unforeseen
circumstances.
.3. Is it the
ethical responsibility of the surgeon to check the correct level of the
tumour?
When we demarcated the level of disease
using plain x-rays and myelograms, it was also the surgeon’s responsibility to
check the level. The high-technology CT and MR scanners disallow such a
confirmation by the surgeon in each and every case and we often have to abide
by the report of the CT or MRI expert.
.4. Is failure to judge the correct level is a
‘failure to exercise reasonable skill and care’?
This is a matter for the judge to
decide. As a neurosurgeon, I consider failure to
clearly and correctly demonstrate the level of
a tumour within the spinal canal a serious error. Marking the level of the tumour wrongly
misleads the surgeon and, as in this
case, leads to fruitless operation at a
wrong level. A second operation – with all attendant risks – then becomes
necessary to remove the tumour.
.5. Is the explanation given by the concerned
radiologist correct?
I find the system followed at the BombayHl’ faulty. The hospital places
all the responsibility on the consultant in the MR department – in this case
Dr.Dadachanjani – and washes its hands off the matter. Dr.Dadachanjani tells us
that the protocol in the MR
Department dictates that the consultant will not be present whilst the MR scan
is being done. The MR scan is done by a senior resident. Whilst Dr.Dadachanjani
places the responsibility for correct identification of the level of disease on the senior resident, the hospital rule clearly places the onus on the consultant – in this case Dr.Dadachanjani.
I feel that if the responsibility is to be that of the consultant, it is up to the consultant to ensure
that there is no mistake. Whilst the senior resident may do the scan, before taking the patient off the scanner, the consultant must be called in to make sure
that no error is made.
The protocol followed by the MR Department at the
From
the admission in the aforesaid report as well as the defence taken by
Ms.Dadachanji, it is apparent that she
was not vigilant in verifying whether the labelling made by the Radiologist, i.e. the Senior Resident Doctor, was correct or not. A senior consultant is
not expected only to sign whatever the junior medical staff suggest. If that is so, there is no use of having Consultant in the Hospital.
As
against this, Respondent No.2 has relied upon the affidavit of Dr.Jimmy
Nadershaw Sidhva.
“The
hospital is responsible for providing infrastructure services which include
space, machinery and consumables for the purposes of MRI scanning. It is also
responsible for providing the technical personnel and the junior medical staff
for carrying out the scan procedure including film processing and film
labelling which includes correct patient identification, left/right side
identification and scan level labelling.
The consultant radiologist is thereafter responsible
for viewing the completed scan and interpreting the films presented to him. The consultant radiologist is not responsible for checking / overseeing
the scan procedure (including film processing and labeling). His responsibility / duty begins and ends
with correct interpretation of, and reporting on the films / scan images
presented to him by the hospital (i.e. the technician and junior medical
staff).
The
aforesaid affidavit clearly reveals that the duty of the consultant begins and ends with correct interpretation
of report of the films and scan the images presented to the consultant by the
hospital, i.e. technician and junior medical staff. This would mean that the
Consultant is required to interpret the MRI film and not to merely sign without
referring (reading) the same. Consultant is the expert in the filed. If he/she
commits mistake or error in interpreting, it is his/her responsibility or
liability.
Further,
there is no dispute with regard to the MRI that was taken for the second time
when tumor was found at D-7-8 levels, and hence, the second operation had to
be performed.
In
this view of the matter, it is apparent that the State Commission committed an
error apparent on the face of the record
in holding that the consultant cannot be
held responsible for the error committed,
in signing the report, on the
basis of noting by the Senior Resident Doctor (Radiologist). In our view, entire responsibility lies with the
Respondent No.3, Dr. Dadachanji because
she was in-charge of the Radiological Department.
At
this stage, we would reproduce the
observations made by the
“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 re-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. We are indicating these
principles since in the case in hand certain arguments had been advanced in
this regard, which will be dealt with while answering the questions posed by
us.”
Further,
with regard to the responsibility of the
hospital, in our view, there is no substance in the contention of the Appellant
that in view of the internal rules and regulations framed by the hospital the hospital would not be
liable for the deficiency in service rendered by the doctor appointed by it.
The reliance upon Rule 14 is of no consequence to the patients who are admitted
in the hospital.
It
is the patient or the Complainant who approaches the hospital for treatment and
hence the primary liability in case of deficiency in service is that of the
hospital. Doctors working in the hospital are its employees. Further, from the
record it is apparent that the Senior Resident Doctor (Radiologist) appointed
by the Hospital committed a blunder which resulted in wrong reporting by the
Consultant. Therefore, if there is deficiency by the doctor, then, it would the
be the joint and several liability of the hospital and the Doctor.
In
this view of the matter, we partly modify the order passed by the State
Commission and hold that the hospital as well as Dr. Ms.Dadachanji are jointly
and severally liable to pay the
compensation and costs as ordered by the State Commission. We also award
Rs.10,000/- as costs to be paid to the Complainant by the appellant – Hospital
and Miss Dadachanji - Respondent No.3 jointly and severally.
The
appeal is disposed of accordingly.
Sd/-
.……………………………….J.
( M.B.SHAH )
PRESIDENT
Sd/-
.…………………………………
(P.D. SHENOY)
MEMBER