Written by 28 June, 2015 9:40 pm Category Archives Articles, Medicolegal case of the month, Periodic Features.


Dr. Dilip B. Walke

Chairperson, Ethics & Medico Legal Committee, FOGSI
E-mail: dbwalke@hotmail.com

Supreme Court
Martin F D souza Vs Mohd Ishfaq Jst M Katju/ Jst Lodha 17th Feb 2009


Why is it “The case of the month”?

  • It’s a landmark case because Justice Katju has stressed the importance of expert medical opinion in medical negligence case at the stage of admission of the case itself. This has caused a change in the way medical negligence cases will be judged hence forth. There will be no court notices issued to doctors or hospital in medical negligence cases unless expert opinion points towards prima facie negligence
  • Justice Katju has revisited “Medical Negligence” in greater details after the Jacob Mathews case.

Details of the case

  • Case of chronic renal failure under dialysis twice weekly was referred to Nanavati hospital in March 1991for renal transplant.
  • Patient visited Nanavati hospital on 24th April 1991 and insisted on seeing Dr Soonavala who was to be out of India till June 1991
  • Revisited Nanavati Hospital on 20/5/91 for fever
    • Advised admission. Pt refused. Broad spectrum AB given
  • Between 20/5/91 & 29/5/91 – Dialysis at Nanavati Hospital 3 times.
    • Every time advised admission for fever but refused
  • On 29/5/91 he had high grade fever 104 F.
    • Got admitted
    • 30/5/91 reports – BUN 180mg/ Cret 13mg/ Hb 4.3/ Widal – Neg/ ESR high/ Urine – bacteria/
    • 3/6/91 – Urine culture- Klebselia (1 lac/ml) >AB sensitivity- sensitive to Amikacin and Methenamine mandelate.
    • 4/6/91 – Blood culture – Staph
    • 5/6/91 – 7/6/91
      • Amikacin injection 500mg Bd
      • Augmentin 375 mg tds given.
      • Methnamine mandalate avoided in view of renal failure.
      • Blood one pint given.
      • Pt kept insisting on immediate kidney transplant, but was advised against for six weeks till infection settled.
    • 8/6/91- AMA discharge.
      • On discharge advised to continue Inj Amikacin
    • 11/6/91 – c/o slight tinnitus.
      • Doctor verbally told to stop amikacin and augmentin and scored it out on the discharge card.
    • From 11/6/91 to 17/6/91 patient continued injection amikacin against advise.
    • On 14/6/91, 18/6/91 and 20/6/91 took dialysis treatment, but never told about any deafness.
    • 25/6/91 – Patient got admitted to another Prince Ali Khan hospital and was treated with AB. No mention of deafness
    • 30/7/91 – Renal transplant at Ali Khan Hospital. Discharged on 13/8/91. then went home to Delhi
    • 7/7/92 – Put up a case in the National forum claiming 1 lacs as his hearing had been affected
    • In the court
      • From patient side
        • Two affidavits- Mohd Ishfaq- himself / his wife
        • Four witnesses. Himself/wife/Dr Ashok Sareen/Dr Vindu Amitabh
        • Opinion of Chief of Nephrology Fairview hospital Clevaland Ohio
          • Had not examined the patient
          • Was not cross examined.
        • Claim – Doctor negligent as he gave amikacin in high dose for 14 days, which was not needed and which lead to hearing impairment.
      • From doctors side
        • Six affidavits. Dr Danbar of hemodialysis unit of Nanavati/ Dr Joshi resident doctor/Mrs Kalekar staff nurse/ Dr Soonavala –urolosurgeon/Dr Rawal –urologist
        • Five witnesses. Dr himself ( Dr M F D souza/ Dr Danbar/ Dr Upadhyaya/Mrs Kalekar/Dr Rawal
        • Reply- Amikacin given as life saving only after obtaining culture report of urine and blood and confirming that other antibiotics will not have response.
      • NCDRC – 9/4/92 — Awarded 4 lakhs with 12% interest + 3 lakh as compensation + 5000/- cost

National forum did not accept expert opinion of Dr Ghosh from AIIMS

      • Dr Ghosh’s opinion
        • Amikacin used as life saving drug. M Mandalate was rightly avoided as patient was in renal failure
        • No negligence.
        • Hearing loss can be due to various other reasons too.
      • NCDRC did not consider Dr Ghosh’s opinion awarded 12 lacs

SC Judgment

    • Patient took discharge from hospital against medical advise.
    • After 3 days came with slight tinittus. Doctor asked verbally to stop amikacin and augmentin and scored out the drugs from the discharge card. But Patient continued amikacin for 7 days on his own
    • Amikacin was for saving life which was more important than hearing impairment
    • Ghosh’s affidavit should be considered
    • No negligence

SC comments

  • Law is a watch dog, not a blood hound. Doctors, nursing homes/hospitals need not be unduly worried while performing their functions. If duty is done with reasonable care they will not be held negligent even if treatment was not successful. ( Surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end dose of medicine to his patient)
  • Courts and forums are not experts in medical science. They should not substitute their views over those of specialists.
  • Bolam test is the test for fixing medical negligence. Is standard of ordinarily skilled doctor exercising and professing to have that special skill. Doctor need not posses expert skill
  • Frivolous complaints against doctors on rise since they come under CPA.
  • It is true that medical profession to some extent has become commercialized and there are doctors who depart from their Hippocratic Oath for their selfish ends of making money. However the entire medical fraternity is not to be blamed or branded as lacking in integrity or competence just because of some bad apples

SC Guidelines for courts in medical negligence cases

  1. Whenever complaint is received against doctor or hospital in forum or court, then before issuing notice to the doctor or hospital, it should be referred to a competent doctor or committee of doctors specialized in the field to which negligence is alleged, and only if there is prima facie case the notice should be issued
  2. Consumer fora and courts are not medical experts and shouldn’t substitute their views over those of experts.
  3. Sometimes despite the best treatment the doctor fails. that doesn’t make that doctor/surgeon negligent
  4. The police officials should not arrest or harass doctors unless the arrest is necessary for furthering the investigation or for collecting the data.