SUPREME COURT HELD IN

Spring Meadows Hospital & another v Harjol Ahluwalia through K.S. Ahluwalia & Another [(1998) 4 SCC 39] Date of Decision: 25/03/1998

"The true position hat an error of judgment may or may not be negligent it depends on the nature of the error. If it is not one that would not have been made by a reasonable competent professional man professing to have the standards and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligence, if on the other hand, it is an error if such a man, acting with ordinary care, might have made, than it is not negligence"

In this complaint of the minor child through his parents before the National Commission. it was contended that the child was admitted to the appellant hospital as in-patient with diagnosis of typhoid. The nurse asked the child's father to purchase the injection Inj. Lariago recommended by the Senor Pediatrician to be administered intravenously. When the nurse administered the injection, the child collapsed immediately. The resident doctor found that the child had. suffered cardiac arrest and he attempted to resuscitate the child by manual pumping. After half an hour, the Anaesthetist also reached the scene and started the procedure of manual respiration and the Senior Paediatrician also followed but here was no improvement in the child' condition. On advice. the child was shifted to the All India Institute of Medical. sciences (AIlMS). The doctors at the AlIMS informed the parents that the child was in a critical condition and even if he survived he would live only in a vegetative state having suffered irreparable damage to the brain. sometime later, the child was discharged and again admitted to the appellant hospital. Based on the evidence, the commission concluded that the child had suffered cardiac arrest because of intravenous injection of an excessive dose of the injection and that due to considerable delay in measures to revive the heart, the child's brain had been damaged. The Commission found that there was clear dereliction of duty on the part of the nurse and that the hospital was negligent in having employed an unqualified person as nurse and entrusting the child to her care. It also held that the resident doctor was negligent since he failed to follow the instruction of the Senior Paediatrician that the injection. should be administered by a doctor. The Commission held that since the resident doctor and nurse were employees of the appellant hospital, the latter was Iiable and awarded compensation of Rs 12 .51akh to the chiId and of Rs.5 lakh to the parents for acute mental agony.

In the appeal of the hospiral, the supreme Court observed that beause the Conumer Protection Act was a beneficial legislation intended to confer. speedier remedy on consumers, its provisions should receive a liberal construction. The Court commented that the relation. hip between a doctor and the patient was not equally balanced as the patient's attitude towards a doctor was poised between trust in the learning of another and the general distress of one in a state of one in a statw of uncertainity and further observed that it wvas difficult for a patient to successfully bring a medical negligence case against the doctor given. the practical difficulties in linking the injury with the treatment and establishing the requisite standard of care. Bur it also noted that with the advent of the Consumer Protection Act, in a few cases patients had been able to establish the doctor's negligence.

Relying upon a decision of House. of Lords/English Courts in Whitehouse v.Jordan [(1981) 1 All ER 267] the Court noted the ruling,

"The true position hat an error of judgment may or may not be negligent it depends on the nature of the error. If it is not one that would not have been made by a reasonable competent professional man professing to have the standards and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligence, if on the other hand, it is an error if such a man, acting with ordinary care, might have made, than it is not negligence"

The Court also indicated thatuse of wrong drug or gas during anesthesia or delegation of responsibility knowing that the delegatee was incapable of performing his duties properly were some instances of tortious negligence.

The Court also rejected the contention of the hospital that the child's parents were not covered within the definition of consumers in s. 2(1 )(d) of the Act and could not be awarded compensation separately. It held that when a child was taken to a hospital by his parents and the child was treated by a doctor, the parents would come within the definition of consumer having hired the services of the hospital/doctor and the child would also be a consumer under the inclusive part of the definition, being a beneficiary of such services. Therefore, both the parents and the child would be 'consumer' and could a such claim and be awarded compensation.