Justice delayed is also negligence
Pushpa Girimaji

Familiarity, it is said, breeds contempt. This is a case where familiarity with the patient’s previous history of illness evoked in the doctor, if not contempt, at least complacency and over-confidence to such a degree that he erred in his diagnosis and treatment. When 53-year-old Sham Bir, a resident of Hurithal village in Faridabad district, Haryana, who practiced the ayurvedic system of medicine, visited his friend and fellow doctor (allopathy) for treatment of his illness, the doctor presumed that it was a case of chronic bronchitis, the reason being that he had treated him earlier on a couple of occasions for respiratory distress.

So confident was he about his diagnosis that he even did not ask for some basic tests such as an X-ray or a blood and sputum test to confirm his diagnosis. He admitted Sham Bir in his nursing home and started treating him for chronic bronchitis. Worse, he would not even listen to the family members’ plea that some other expert be brought in or Sham be referred to a larger hospital as his condition was worsening.

It was only on November 21—three days after he was admitted—that he was finally allowed to be shifted to Holy Family Hospital. By then he had slipped into a coma, and even though the doctors there diagnosed him to be suffering from cerebral malaria and treated him for it, it was too late, and he breathed his last two days later. The tragedy did not end there. After Sham’s death, his widow Vidya Devi and her four children filed a case before the district forum, seeking a small compensation of Rs 5 lakh from the doctor.

When she filed the case, Vidya Devi probably believed that the consumer court would deliver quick justice and her case would be decided within three months, as promised under the Consumer Protection Act, and the compensation amount would be of help to her financially. But the case dragged on—from the district forum to the state commission and the national commission—for 16 long years. Eventually after a decade-and-a-half of waiting, when the apex court finally awarded an even smaller compensation of Rs 2 lakh (and without any interest on the amount), Vidya Devi was not even alive to receive it.

In April this year, the apex court upheld the verdict of the district forum and said the doctor was guilty of negligence in not following the normal practice of conducting some basic, minimum tests before zeroing on the diagnosis. But it came too late. During the pendency of the case, Vidya Devi had died, leaving the children to pursue the case.

In fact I have written on this case not so much for the issues pertaining to negligence that it raises, as the delay in the process of justice. Certainly, the case highlights the importance of following some basic, rudimentary procedure for diagnosis, such as a urine test or a blood test, X-ray or a sputum test in cases such as this and the consequences of not following them.

The court commented in this case that the doctor was a postgraduate in medicine, eminently qualified and experienced, but in this case he had failed to follow the usual and normal practice of conducting certain minimum tests before zeroing on the diagnosis. "The course adopted by him to abruptly decide on the diagnosis and commence treatment would not normally be followed by any professional man of ordinary skill," the commission said. The doctor was also found wanting in the proper maintenance of patients’ records.

But this case raises an issue of an even greater concern— the time taken by courts to adjudicate over a case. This is not the first case before the court where the complainant has died during the long pendency of the case. Given the speed at which courts are delivering justice, such cases will only increase and it should not come as a surprise if, as we go along, compensation is collected by the children or the grandchildren of the original complainants, as happens in civil courts.

Justice delayed is justice denied, it is said. But under consumer law, since any delay in the provision of a service constitutes deficiency and negligence, delayed justice is also negligence. How will the consumer justice system or the government compensate those who are victims of such negligence?