CONSUMER RIGHTS
Medical negligence
Pushpa Girimaji

Sometimes, justice goes beyond the confines of the law. This is exactly what a recent order of the apex consumer court has shown. Even while holding the All-India Institute of Medical Sciences Ďnot guiltyí of negligence, the National Consumer Disputes Redressal Commission has directed it to provide life-long treatment to a child, completely free of charge.

The complaint here revolved round an incorrect test result. The complainant, Mr Sailesh Munjal, already had a child who was suffering from Thalassaemia Major and so when his wife got pregnant again, he consulted the doctors at the AIIMS about prenatal diagnosis to rule out the possibility of this child also having thalassaemia.

The complainants were informed that the test for pre-natal diagnosis for thalassaemia Major on the basis of DNA technology would not be carried out at the AIIMS but at the Institute of Molecular Medicine, Oxford, UK. The blood samples would be taken from all the family members and the sample from the foetus would be obtained from the chorionic villus(CV), which is the tissue by which the baby is attached to the motherís womb. Then the foetal tissue would be separated from the motherís tissue and then the DNA would be extracted from it.

Accordingly, Mrs Munjal was advised to undergo CV biopsy and the DNA sample was sent to Oxford, UK. On the basis of the report, the couple decided to go ahead with the pregnancy, but when the child was born, it was found that it suffered from thalassaemia.

The main contention of the complainant was that the error in the report had occurred due to the contamination of DNA from the motherís tissue, caused by gross error on the part of the AIIMS doctor in extracting DNA from CV samples. If the doctor had been careful enough and separated the motherís tissue, and if the doctor in Oxford who tested it had been vigilant enough before analysing the sample, the erroneous foetal diagnosis would not have happened.

The National Consumer Disputes Redressal Commission, after examining the case, however, held that there was an error in the result, but it was not due to negligence. It based this decision on the opinion of experts who said that while separating the motherís tissue from foetal tissue and carrying out the test for thalassaemia, such errors could creep in and it was an inherent part of the technology. (Sailesh Munjal VS All-India Institute of Medical Sciences and others, OP no 224 of 1994, decided on May 20, 2004).

The commission observed that the question is how to do justice, when we are not in a position to hold that there was negligence, but at the same time, it is apparent that an error has crept in bifurcating the motherís tissues from that of the foetal tissues or at the time of carrying out the test at the Institute of Molecular Medicine, Oxford. That error, fault or imperfection has resulted in onerous duties on the parents and their son would require continuous treatment of blood transfusion and medication. The Commission therefore directed AIIMS to provide all medical facilities, including consultation, medicines and blood transfusion, free of charge to the child, throughout his life.

When it comes to health or medical services, it is not adequate for a complainant to establish deficiency in service. He or she has to also prove that such deficiency was caused as a result of negligence. Negligence, the courts have held, is the failure to exercise reasonable care and skill expected of a doctor. But in many cases, establishing negligence is not easy. And as the national commission pointed out in this case, there is a thin line between error, imperfection or fault and negligence. So one hopes that at least this kind of relief would be forthcoming in cases where a patient suffers on account of a mistake by a doctor but is unable to prove negligence.

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