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Is compensation possible for medical negligence if treated for free ?

The Supreme Court has agreed to examine whether a doctor is legally bound to pay compensation for alleged medical negligence, even if he had treated the patient free of cost.

The case reached the top court after three consumer forums threw out the appeals of the parents of a 12-year-old from Bengal who died after being administered an injection of what appears to have been a contra-indicated drug.

Ishita Banerjee, daughter of Hooghly resident Mihir Banerjee, had been rushed to Dr Abhijit Roy's clinic in May 2001 after repeated bouts of vomiting. According to Mihir, Roy asked his compounder to administer an injection of the drug Zofer, an anti-emetic drug to control nausea, particularly in cancer patients undergoing chemotherapy.

She was also given Rantac, a common drug for stomach problems.

Within a few hours of administering the Zofer injection, the child developed further complications, including loose motions. The doctor then prescribed two other medicines, but she died soon after.

The parents filed a complaint of medical negligence against the doctor, seeking Rs 5 lakh as compensation. On October 19, 2001, the district consumer forum dismissed their plea on the ground that the girl was treated free of cost, so the case did not come within the purview of the Consumer Protection Act.

It rejected the argument that the parents had paid for the treatment. Roy had taken the stand that he treated all patients at the clinic free of cost.

On October 22, 2008, the West Bengal State Consumer Disputes Redressal Commission concurred with the district forum's view. The family then approached the national forum (NCDRC).

On December 19 last year, the NCDRC too dismissed the family's appeal. It said the doctor had treated the child free of cost and the family had produced no material evidence to prove that they paid Roy his fees.

As such, it said, the case did not fall within the ambit of "service" as defined by the Consumer Protection Act.

But yesterday, a bench of Justices Dipak Misra and P.C. Pant agreed to examine not only whether the family had paid the fees but also if victims or their families were entitled to monetary compensation in cases of medical negligence by doctors who treat patients free.

The bench has issued a notice to Roy, asking him to respond.

None of the consumer forums appeared to have gone into whether it was a case of medical negligence. The apex court will also look into this aspect.

Senior counsel M.N. Krishnamani, who appeared for the victim's family, told the bench the doctor was guilty of negligence as the literature on Zofer clearly says the medicine was indicated only for management of nausea and vomiting induced by cytotoxic chemotherapy and radiotherapy.

He also said the three consumer forums had ignored the testimony of Dr Krishnendu Banerjee, an expert witness brought in by Roy and who had testified before the Hooghly district forum that "only chemotherapy induced nausea or vomiting could be tackled by use of Zofer in paediatric patients".

"If this is not medical negligence, then no doctor in the country could be held guilty of medical negligence," Krishnamani told the court.

The counsel also cited a 2009 ruling by the top court - in the Malay Kumar Ganguly Vs Dr Sukumar Mukherjee case.

The court had then held that while administration of a wrong drug amounted to gross negligence, it would also be a case of negligence if the right medicine is not given.

Article referred: http://www.telegraphindia.com/1150703/jsp/nation/story_29302.jsp#.VbB3fVWqo6V

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