State Consumer Disputes Redressal Commission
Radha Sirmore & Ors. vs Shri Balaji Institute Of Medical ... on 22 February, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2016/03
Instituted on : 02.02.2016
1. Radha Sirmaur, Aged 36 years,
Widow of Late Sunil Kumar Sirmaur.
2. Sanket alias Shubham Sirmaur, Aged 11 years,
Minor, Son of Late Sunil Kumar Sirmaur.
3. Vishistha Sirmaur, Aged 4 years, Minor,
S/o Late Shri Sunil Kumar Sirmaur,
Both are represented through : Vali / mother
Smt. Radha Sirmaur.
4. Bisain Bai, Aged 60 years,
W/o Shri Hriday Ram Sirmaur,
5. Hriday Ram Sirmaur, Age 65 years,
S/o Late Tijau Ram,
All R/o : Irrigation Colony, Tilda,
Post - Nevra, District Raipur (C.G.) ... Complainants.
Vs.
1. Shri Balaji Institute of Medical Science Pvt. Ltd.
Through : Director Dr. Devendra Nayak,
Ekta Chowk, Dubey Colony, Mowa,
Raipur (C.G.)
2. Dr. Rajkumar Baranwal,
C/o Shri Balaji Super Speciality Hospital,
Ekta Chowk, Dubey Colony, Mowa,
Raipur (C.G.)
3. United India Insurance Co. Limited,
Through : Divisional Manager, Divisional Office,
Krishna Complex,
Raipur (C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
// 2 //
COUNSEL FOR THE PARTIES:
Shri Harish Sahu, Advocate, for the complainants.
Shri R. K. Bhawnani and Shri Sanjay Dadsena Advocates, for the O.P.
No.1 & O.P. No.2.
Shri P.K. Paul, Advocate, for the O.P. No.3.
ORDER
Dated : 22/02/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
(a) To direct the OPs to jointly and severally pay a sum of Rs.32,40,000/- towards loss, a sum of Rs.15,00,000/-
towards treatment expenses and a sum of Rs.5,00,000/- totalling Rs.52,30,000/- to the complainants.
(b) To direct the OPs to pay cost of litigation to the complainants and interest @ 12% p.a. on the above amount.
2. Briefly stated the facts of the complaint of the complainant are that the O.P. No.1 is Super Speciality Hospital and it is running in the name and style as Shri Balaji Super Speciality Hospital and Dr. Devendra Nayak is its director. The O.P. No.2 is working in the O.P. No.1 Hospital. On 08.10.2015, the husband of the complainant No.1 and father of complainant No.2 & 3 and son of complainant No.4 & 5, namely Sunil Kumar Sirmaur was suffering from fever, cold, cough, loss of appetite and breathing problem. Sunil Kumar Sirmaur was brought to O.P. No.1 Hospital and the O.P. No.2 started his treatment.
// 3 // Sunil Kumar Sirmaur was admitted in the O.P. No.1 Hospital on 08.10.2015. Costly test was got conducted by the O.P. No.2 and it was diagnosed that Sunil Kumar Sirmaur was suffering from Pneumonia. The O.P. No.2 assured that he will become alright at the earliest, but no improvement was made in his health. Sunil Kumar Sirmaur was shifted in M.I.C.U. and was kept in ventilator. The O.P. No.2 suspected that Sunil Kumar Sirmaur was suffering from Swine Flu H1N1 and test was conducted, but in report swine flu test was found negative even then, without conclusive test of Swine Flu, O.P. No.2 gave medicines of Swine Flu to Sunil Kumar Sirmaur, therefore, his condition was deteriorated. Sunil Kumar Sirmaur was admitted in the O.P. No.1 Hospital from 08.10.2015 to 24.10.2015 and during above period the O.P. No.2 has wrongly treated Sunil Kumar Sirmaur. The complainants requested the O.P. No.2 that if the health condition of Sunil Kumar Sirmaur is not improving, then he be referred to a higher centre, but the O.P. No.2 assured the complainant that treatment is given to him in right direction, but the condition of Sunil Kumar Sirmaur was deteriorated and he reached to dead condition. Thereafter O.P. No.2 told the complainants that they can take Sunil Kumar Sirmaur in another hospital. Sunil Kumar Sirmaur was shifted in Ramkrishna Care Hospitals where he died on 24.10.2015. He died due to wrong treatment given by the O.P. No.2. The OPs committed medical negligence. The complainants suffered loss of Rs.52,65,00/-, // 4 // as mentioned in para 9 of the complaint, therefore, the complainants are entitled to get compensation, as prayed in the relief clause of the complaint.
3. The O.P. No.1 filed its written statement and averred that in the O.P. No.1 Hospital generally the patients who are suffering from severe diseases come , where the best treatment is given to the patients. Sunil Kumar Sirmaur was suffering from Pneumonia and only quantity of 82% of oxygen instead of 100% was found in his body and due to Pneumonia his lungs were not properly functioning and his condition was very critical and crucial. Sunil Kumar Sirmaur was kept in ventilator and he was suffering from Atypical Viral Pneumonia, which is a type of Swine Flu. He was suffering from Atypical Viral Pneumonia with Bacterial Pneumonia. The cost of one tablet of Swine Flu is Rs.47.5. From perusal of report of Delhi, it is clear that if the report is Swine Flu is negative even then possibility of Swine Flu is made out and the best medicines of Swine Flu was provided to Sunil Kumar Sirmaur. Prior to giving treatment, the conditions of Sunil Kumar Sirmaur was explained to his relatives and consent letter was obtained, there after treatment was started. The O.P. No.1 did not obtain Rs.15,00,000/- from the complainants. The OPs did not commit any medical negligence. Proper treatment was given to Sunil Kumar Sirmaur. The complaint is frivolous, malafide and filed with ulterior motive. The O.P. No.1 is duly insured with // 5 // United India Insurance Company Limited. The complainants are not entitled to get any compensation from the O.P. No.1 and the complaint is liable to be dismissed.
4. The O.P. No.2 has not filed separate written statement but he has filed his affidavit. In affidavit the O.P. No.2 pleaded that Sunil Kumar Sirmaur was taken to the hospital in critical condition and he was suffering from Atypical viral Pneumonia. He was admitted in the hospital on 09.10.2015 his C.B.C. and White Blood Cell was found 60 & 6900 respectively. CT Scan was also conducted. In the C.T. Scan Report, it is found that there was large Pneumonia in both the lungs of Sunil Kumar Sirmaur and his lungs were damaged upto 80%. In the O.P. No.1 Hospital generally the patients who are suffering from severe diseases come , where the best treatment is given to the patients. Sunil Kumar Sirmaur was suffering from Pneumonia and only quantity of 82% of oxygen instead of 100% was found in his body and due to Pneumonia his lungs were not properly functions and his condition was very critical. Sunil Kumar Sirmaur was kept in ventilator and he was suffering from Atypical Viral Pneumonia, which is a type of Swine Flu. He was suffering from Atypical Viral Pneumonia with Bacterial Pneumonia. The cost of one tablet of Swine Flu is Rs.47.5. From perusal of report of Delhi, it is clear that if the report is Swine Flu is negative even then possibility of Swine Flu is made out and the best medicines of Swine Flu was provided to Sunil // 6 // Kumar Sirmaur. Prior to giving treatment, the conditions of Sunil Kumar Sirmaur was explained to his relatives and consent letter was obtained, then treatment was started. The O.P. No.1 did not obtain Rs.15,00,000/- from the complainant. The O.P. No.1 & O.P. No.2 did not commit any medical negligence. Proper treatment was given to Sunil Kumar Sirmaur. The complaint is frivolous, malafide and filed with ulterior motive. The O.P. No.1 with duly insured with United India Insurance Company Limited. The complainants are not entitled to get any compensation from the O.P. No.1 and the complaint is liable to be dismissed.
5. The O.P. No.3 filed its written statement and averred that the complainants or the Sunil Kumar Sirmaur have not paid any premium to the O.P.No.3 and did not obtain insurance cover, therefore, there is no privity of contract between the complainants or Sunil Kumar Sirmaur & the O.P. No.3 Insurance Company, therefore, Sunil Kumar Sirmaur or his legal heirs are not consumer of the O.P.No.3 under Section 2(1)(d) of the Consumer Protection Act. The complaint filed by the complainants against the O.P.No.3, is not maintainable and is liable to be dismissed The complainants did not submit any claim before the O.P.No.3 and no dispute has arisen between the complainant or Sunil Kumar Sirmaur & O.P. No.3, from which the complaint received basis. The O.P. No.3 has not accepted or rejected the claim of the complainants, therefore, no deficiency in service has // 7 // been committed by the O.P.No.3, hence, the complaint against the O.P.No.5, is liable to be dismissed.
6. The complainants have filed documents which are Death Summary of Ramkrishna Care Hospital, Bills and report of Balaji Hospitals, legal notice sent by Shri Shishir Bhandarkar, Advocate to the O.P. No.1 & O.P. No.2, reply sent by Shri R.K. Bhawnani, Advocate to the complainants.
7. The O.P. No.1 & O.P. No.2 have filed documents. D-1 is consent paper, D-2 is LAMA Paper, D-3 is copy of insurance policy.
8. The O.P. No.3 has filed copy of insurance policy.
9. Shri Harish Sahu, learned counsel appearing for the complainants has argued that on 08.10.2015, the husband of the complainant No.1 and father of complainant No.2 & 3 and son of complainant No.4 & 5, namely Sunil Kumar Sirmaur was suffering from fever, cold, cough, loss of appetite and breathing problem. Sunil Kumar Sirmaur was brought to O.P. No.1 Hospital and the O.P. No.2 started his treatment. Sunil Kumar Sirmaur was admitted in the O.P. No.1 Hospital on 08.10.2015. Costly test was got conducted by the O.P. No.2 and it was diagnosed that Sunil Kumar Sirmaur was suffering from Pneumonia. The O.P. No.2 assured that he will become alright at the earliest, but no improvement was made in his condition. Sunil Kumar Sirmaur was shifted in M.I.C.U. and was kept // 8 // in ventilator. The O.P. No.2 suspected that Sunil Kumar Sirmaur was suffering from Swine Flu H1N1 and test was conducted, but report was in negative. Without conclusive test of Swine Flu, O.P. No.2 gave medicines of Swine Flu to Sunil Kumar Sirmaur, therefore, his condition was deteriorated. Sunil Kumar Sirmaur was admitted in the O.P. No.1 Hospital from 08.10.2015 to 24.10.2015 and during above period the O.P. No.2 has wrongly treated Sunil Kumar Sirmaur. The complainants requested the O.P. No.2 that if the condition of Sunil Kumar Sirmaur is not improving, then he be referred to a higher centre, but the O.P. No.2 assured the complainant that treatment is given to him in right direction, but the condition of Sunil Kumar Sirmaur was deteriorated and he reached to dead condition. Thereafter O.P. No.2 told the complainants that they can take Sunil Kumar Sirmaur in another hospital. Sunil Kumar Sirmaur was shifted in Ramkrishna Care Hospitals where he died on 24.10.2015. He died due to wrong treatment given by the O.P. No.2. The O.P.No.1 & O.P. No.2 committed medical negligence. The complainants suffered loss of Rs.52,65,00/-, as mentioned in para 9 of the complaint, therefore, the complainants are entitled to get compensation, as prayed in the relief clause of the complaint. The complaint be allowed and relief as prayed in the relief clause of the complaint be allowed.
10. Shri Sanjay Dadsena, learned counsel appearing for the O.P. No.1 & O.P. No.2 has argued that Sunil Kumar // 9 // Sirmaur was suffering from Pneumonia and only quantity of 82% of oxygen instead of 100% was found in his body and due to Pneumonia his lungs were not properly functions and his condition was very critical. Sunil Kumar Sirmaur was kept in ventilator and he was suffering from Atypical Viral Pneumonia, which is a type of Swine Flu. He was suffering from Atypical Viral Pneumonia with Bacterial Pneumonia. The cost of one tablet of Swine Flu is Rs.47.5. From perusal of report of Delhi, it is clear that if the report is Swine Flu is negative even then possibility of Swine Flu is made out and the best medicines of Swine Flu was provided to Sunil Kumar Sirmaur. Sunil Kumar Sirmaur was taken to the hospital in critical. He was admitted in the hospital on 08.10.2015 his C.B.C. and White Blood Cell was fond 60 & 6900 respectively. CT Scan was also conducted. In the C.T. Scan Report, it is found that there was large Pneumonia in both the lungs of Sunil Kumar Sirmaur and his lungs were damaged upto 80%. He was suffering from Atypical Viral Pneumonia. Prior to giving treatment, the conditions of Sunil Kumar Sirmaur was explained to his relatives and consent letter was obtained, thereafter treatment was started. The O.P. No.1 did not obtain Rs.15,00,000/- from the complainants. The OPs did not commit any medical negligence. Proper treatment was given to Sunil Kumar Sirmaur. The complaint is frivolous, malafide and filed with ulterior motive. The O.P. No.1 with duly insured with United India Insurance Company // 10 // Limited. The complainants are not entitled to get any compensation from the O.P. No.1 and the complaint is liable to be dismissed.
11. Shri P.K. Paul, learned counsel appearing for the O.P. No.3 has argued that the complainants or the Sunil Kumar Sirmaur have not paid any premium to the O.P.No.3 and did not obtain insurance cover, therefore, there is no privity of contract between the complainants or Sunil Kumar Sirmaur & the O.P. No.3 Insurance Company, therefore, Sunil Kumar Sirmaur or his legal heirs are not consumer of the O.P.No.3 under Section 2(1)(d) of the Consumer Protection Act. The complaint filed by the complainants against the O.P.No.3, is not maintainable and is liable to be dismissed The complainants did not submit any claim before the O.P.No.3 and no dispute has arisen between the complainant or Sunil Kumar Sirmaur & O.P. No.3. The complainant has not been able to prove that O.P. No. 1 & 2 committed medical negligence even complainants has not field any expert report and they also not obtained report from the Medical Board . Therefore in the merely on the basis of allegations made in complaint, it cannot be held that O.P. No. 1 & 2 committed Medical Negligence. No deficiency in service has been committed by the O.P.No.3, hence, the complaint against the O.P.No.3, is liable to be dismissed.
12. We have heard learned counsel appearing for both the parties and have also perused the documents filed by them in the complaint case.
// 11 //
13. In the book titling "Medical Negligence" written by Shri S.P. Tyagi (Edition 2004) Reprint 2008, it has been mentioned at Page No.64, 65, 66, 67 and 68 regarding Medical Negligence, Classification of medical negligence or mistakes. It runs thus :-
"What is Medical negligence The term medical negligence is nowhere defined in any Code or Act. No legislature, has so far, made any attempt to define it. Even the medico- legal jurists have not come forward to provide a specific meaning to this express.
'Medical negligence' is always an outcome of doctor patient inter se conduct and relationship, which lacks uniformity. The issue of medical negligence is a complicated one as medical professionals deal with human body. They do not deal with the machine. Human body is not a mere composition of bones and flesh. It is susceptieable to emotions also. Response of medicinal treatment varies from patient to patient. This phenomenon is also applicable to recovery aspect. Further recovery aspect is not solely dependent upon the appropriateness of treatment provided by the doctor. Response or recovery of a patient also depends on his individual anatomy and physiology. Possibility cannot be ruled out that a drug may be effective in case of one patient, it may not be effective in second and may cause reaction in third. Medico Legal experience also establishes that there exist inherent risk in every treatment, medicinal or surgical. Further possibility of unforeseen mishap may not be ruled out. Even the medicinal literature provides for failure rates particularly in surgery.
The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be more than one course of treatment which may be advisable for treating a patient. Medical opinion may differ with regard to the course of action adopted by a doctor treating a patient.
Further the concept of medical negligence may be studied with reference to the extent of approach of a medical professional towards three under mentioned concepts, which generally work as guidelines to determine the factum of medical negligence or otherwise in a particular case.
(1) Duty of care in accepting the patient for treatment.
// 12 // (2) Duty of care in providing appropriate treatment. (3) Breach of duty or commission of negligence in any of them and damage cause by such breach.
In other words, medical negligence is result of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties. Broadly speaking medical negligence means negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in vogue, which are being practiced by an ordinary and reasonably competent man, practicing on the same branch of medicine or surgery.
Classification of medical negligence or mistakes. Negligence in medical care may broadly be classified into four categories :-
(1) Medical negligence at the level of doctors / paramedical staff / hospital authorities. Liability for negligence may be fixed at individual level and / or jointly or vicariously where hospitals nursing homes are involved.
(2) Negligence at the level of patient himself or his attendants also known as contributory negligence.
(3) Negligence at the level of manufacturers of drugs, equipment etc. and dispensers.
(4) Composite negligence i.e. at more than one of the above 3 levels.
Negligence of first category may further be sub-classified into two categories viz.
(i) Individual liability of a medical professional.
(ii) Vicarious liability of an individual doctor or hospital for the Medical negligence may also be classified as under :
1. Medical mistakes.
2. Clinical negligence.
3. Surgical mistakes
4. Misplaced injection."
// 13 //
14. The complainants have pleaded that Sunil Kumar Sirmaur, was suffering from simple fever, cough and cold but the O.P. No.2 has wrongly diagnosed that he was suffering from Swine Flu.
15. In the instant case consent letter was obtained by the O.P. No.1 & O.P. No.2 and Basant Kashyap, who is brother of deceased Sunil Kumar Sirmaur gave his consent. In consent letter it is mentioned thus :
"LOW GC CONSENT gesa gekjs ejht lquhy ds ckjs esa lacaf/kr fpfdRld us gekjh Hkk"kk esa crk;k fd ejht dks lkal ysus esa rdyhQ gks jgh gSA lacaf/kr fpfdRld us bykt ds nkSjku Ventiletter (Bipap) esa j[kus dh lykg nh gSA ejht dh fLFkfr vPNh ugha gSA bu lHkh ckrksa dks vPNh rjg ls tkuus ,oa le>us ds ckn ge ejht dk bykt vkxs tkjh j[kus dh vuqefr iznku djrs gSaA uke%& clUr d';i gLrk{kj%& -------------------
fj'rk%& HkkbZ fnukad%&08-10-15 le;%& 8-10 P.M. "
16. Another High Risk Consent letter is annexed, which was given by Rambihari Sirmaur, who is also brother of the deceased Sunil Kumar Sirmaur. In the above document it is mentioned thus :- "
// 14 // "gesa gekjs ejht lquhy fljekSj mez 40 o"kZ ds ckjs esa MkWDVj lkgc us crk;k gS fd ejht dks Nkrh dk fueksfu;k (BIL pneumonia) ls xzflr gS vkSj ejht dks jDr 'kdZjk ¼lqxj½ dh fcekjh Hkh vk;k gS rFkk jDr esa o Nkrh nksuksa esa ladze.k vk jgk gS ejht vHkh oasfVysVj ij gS rFkk 1000% vkWDlhtu ds ckn Hkh Nkrh esa vkWDlhtu lgh vknku iznku ugha gks ik jgk gSA ejht vHkh Hkh fLFkfr lgh ugh gS vkSj ladze.k gksus ds dkj.k cq[kkj Hkh gS bu lHkh ckrks dks MkWDVj lkgc us gesa iwjh rjg ls crk fn;k gS vkSj bZykt ls ge ifjtu iw.kZr% lger gS vkSj bZykt vkxs tkjh j[kus dh vuqefr iznku djrs gSa bl nkSjku fdlh Hkh izdkj dh vfiz; ?kVuk gksrh gS rks bldh tokcnkjh ge ifjtu dh gh gksxhA"
17. In HRCT of Chest Report dated 09.10.2015 of the O.P. No.1 Hospital, it is mentioned thus :-
"IMPRESSION :
Large multifocal ill defined areas of combination of consolidation and ground glass opacity in bilateral lungs - Infective etiology.
Mild bilateral pleural effusion.
Few borderline enlarged and few subcentimetric mediastinal nodes.
Small hiatus hernia."
18. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128 (V 56 C 27), Hon'ble Supreme Court has observed thus :-
// 15 // "11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient.
The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."
19. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good.
Negligence becomes actionable on account of injury resulting from the act or omission // 16 // amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
// 17 // I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances // 18 // of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the // 19 // patients have to be paramount for the medical professionals."
20. In Dr. Sanjay Gadekar Suprathet Hospital and Surgical Research Institute Ltd. Vs. Sangamitra @ Sandhya Khobragade, 2016 (3) CPR 270 (NC), Hon'ble National Commission has observed thus :-
"11 In this context we place reliance upon few judgments of Hon'ble Supreme Court. In Jacob Mathews Case (2005) 6 SCC 1, it was observed by Hon'ble Supreme Court as :
"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, the Hon'ble Supreme Court held that :
"in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable, if the course of action chosen by him was acceptable to the medical profession."
// 20 // The Hon'ble Supreme Court in the case Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others (2010) 3 SCC 480; the bench comprising Hon'ble Justices Dalveer Bhandari and H.S. Bedi while dismissing the complaint held that :
"Consumer Protection Act, (CPA) should not be a "halter round the neck" of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death."
... ... ... xxxxx......
It further observed as, "It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish."
25. In Hucks v. Cole & Anr (1968) 118 New LJ 469, Lord Denning speaking for the Court, observed as under :
"a medical practitioner was not to be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner, in his field."
21. In A.K. Vishwakarma (Dr.) Vs. Kiran Sinha & Anr. and Kiran Sinha Vs. A.K. Vishwakarma (Dr.), II (2016) CPJ 204 (NC); Hon'ble National Commission has observed thus :-
// 21 //
"22. What constitutes medical negligence is well settled through a catena of decisions of the Hon'ble Supreme Court, including in Jacob Mathew v. State of Punjab & Anr., III (2005) CPJ 9 (SC) = VI (2005) SLT 1 = 122 (2005) DLT 83 (SC) = III (2005) CCR 9 (SC) = (2005) 6 SCC 1, a three-Judge Bench decision, Indian Medical Association v. V.P. Shantha and Others., III (1995) CPJ 1 (SC) = 1995 (SLT Soft) 561 = (1995) 6 SCC 651. Noted from these judgments, the broad principles to determine what constitutes medical negligence, inter alia, are : (i) Whether the doctor in question possessed the medical skills expected to an ordinary skilled practitioner in the field at that point of time; and (ii) Whether the doctor adopted the practice (of clinical observation diagnosis - including diagnostic tests and treatment) in the case that is accepted as proper by a responsible body of professional practitioners in the field. In this connection, in Jacob Mathew (supra), the three-Judge Bench, elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury's Laws of English (4th Edn., Vol. 30, para 35) as follows :-
"35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way..."
25. The State Commission seems to have presumed that the stone was in the kidney and that a stone of its size could not have passed out with urine in the natural process. The Medical Literature and the expert opinion clearly evidenced that the stone was in the CBD and it could have passed out naturally and that the patient had a history of cholecystectomy in the year 1997 and with all the tough adhesions, it // 22 // may not be possible to detect any shadow or lesion in the pancreas and therefore, viewed from any angle, we do not see any negligence on behalf of the Radiologist in analysing the USG. The Petitioner / Complainant also could not establish any negligence on behalf of the Treating Surgeon. We observe from the record that he was impleaded in the second round of litigation but there was no amendment in the pleadings and no specific allegation as to what ought to have been done by the Treating Surgeon which was not done as per the standards of normal medical parlance. Therefore, we conclude that the patient failed to prove any negligence against either of the Doctors."
22. The complainants themselves pleaded that Sunil Kumar Sirmaur was taken to Ramkrishan Care Hospitals. The death summary of Sunil Kumar Sirmaur has been filed by the complainants, in which it is mentioned thus :-
"FINAL DIAGNOSIS :
B/L PNEUMONIA WITH SEVERE METABOLIC ACIDOSIS WITH SEPTIC SHOCK :-
Ms. SIRMOUR SUNIL, aged 40 yrs, male presented with C/o. Cought with sputum products since 16 days Fever since 15 days Cold since 15 days.
Patient admitted in Balaji hospital and referred here for further management.
No H/o. DM/HTN/APD/TIA/CVA/COPD/Br. Asthma / Bleeding Diathesis / Drug Allergy.
EXAMINATION Patient is Conscious / Coherent / Afebrile.
COURSE IN HOSPITAL // 23 // Patient was admitted in trachestomized condition on 24.10.2015 at 08 : 30 pm with for a-mentioned complained he was immediately shifted to ICU. Where patient undergone cardiac arrest CPCR done and patient revived, after 2 cycles of CPR, put on ventilator support and ionotropic support. Pulse and BP was not palpable glave prognosis was explained. At 09.20 pm he sustained another cardiac arrest CPR done but patient could not received and declared died at 09.45."
23. Looking to the Death Summary of Ramkrishna Care Hospitals, it appears that Sunil Kumar Sirmaur was suffering from Pneumona and he was kept in ventilator support in Ramkrishna Care Hospitals. In consent letter it is specifically mentioned that the condition of the patient was critical and he had breathing problem and he was kept in ventilator. The condition of the patient was not good and the doctors explained regarding the conditions of the patient in Hindi language. Thereafter the brother of the deceased gave his consent for treatment and treatment was started by the O.P. No.2. High Risk Consent was also obtained by the O.P. No.2 on 18.10.2015.
24. LAMA Consent has also been filed by the OPs which is marked as document D-2 in which it is mentioned thus :-
"LAMA CONSENT gesa gekjs ejht lquhy fljekSj mez 40 o"kZ ds ckjs esa lacaf/kr fpfdRldksa us gekjh Hkk"kk esa le>k fn;k gS fd ejht ds QsQM+ksa esa ladze.k QSyk gqvk gS ftlds dkj.k ejht dh d`f=e 'okl;a= iz.kkyh }kjk vkWDlhtu fn;k tk jgk gSA ejht vHkh csgks'kh dh gkyr esa gSA ejht dk jDrpki (BP) de vk jgk gS ftlds fy, vko';d nokbZ fn;k tk jgk gSA ejht dh fLFkfr vR;ar xaHkhj rFkk uktqd // 24 // cuk gqvk gS rFkk ejht ds tku dks [krjk gSA bu lHkh ckrksa dks ge HkyhHkkafr tkurs ,oa le>rs gSa rFkk ge gekjs ejht dks ?kj okil ys tkuk pkgrs gS ,slh ifjfLFkfr esa ?kj ys tkrs le; ,oa mlds ckn dksbZ Hkh vfiz; ?kVuk ?kVrk gS rks ge Lo;a ftEesnkj gksaxs blesa vLirky iz'kklu ,oa MkWDVlZ dh dksbZ tokcnkjh ugha gksxkA fnukad & 24@10@15 uke& clar d';i le; & 2.PM fj'rk&HkkbZ LFkku& Raipur gLrk{kj-------------
eks-uEcj&9329692600"
25 From bare perusal of LAMA consent (Document D-2), it appears that the conditions of the patient Sunil Kumar Sirmaur was critical. The complainants themselves took the patient without consent of the OPs. Looking to the documents filed by both the parties, it appears that Sunil Kumar Sirmaur was suffering from Atypical Pneumonia and his lungs were infected and trachestomize was also found in his lungs. It appears that his respiratory system was also affected. For the above disease, the treatment was given by the O.P. No.2. Merely the disease was not cure, the act of the O.P. No.2 does not come within purview of medical negligence.
26. In Oxford Hospital (P) Ltd. and Anr. Vs. K.K. Mittal & 2 Ors. 2016 (3) CPR 20 (NC), Hon'ble National Commission has held that "No cure is not a negligence - Doctor should not be punished if anything goes // 25 // wrong - It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with desire to punish."
27. In Pally Srikanth & Ors. Vs. M/s. Krishna Institute of Medical Sciences Ltd. & Ors. 2016 (4) CPR 46 (NC), Hon'ble National Commission has observed that "Onus of proving alleged negligence in treatment of a patient lies with person alleging medical negligence."
28. In the instant case, the complainants have not filed any material evidence to prove that O.P. No.2 has wrongly diagnosed the disease of Late Sunil Kumar Sirmaur. The complainants have also not produced any evidence to prove that O.P. No.2 wrongly treated Late Sunil Kumar Sirmaur. Looking to the documents filed by the complainants themselves, it appears that the deceased Sunil Kumar Sirmaur was suffering from Atypical Pneumonia and the treatment was given by the O.P. No.2 to him on the basis of CT Scan Report. Looking to the Death Summary of Ramkrishna Care Hospitals, it appears that the deceased Sunil Kumar Sirmaur was suffering from Pneumonia. Ramkrishna Care Hospitals, has not given any report that the O.P. No.2 has wrongly diagnosed the disease of Late Sunil Kumar Sirmaur and wrong treatment was given to him by the O.P. No.2. Even the complainants did not obtain any expert opinion from the Medical // 26 // Board, therefore, mere allegations made by the complainants is not sufficient to hold that the O.P. No.1 & O.P.No.2 have committed medical negligence.
29. In the instant case, the complainants did not file any documents to prove that the O.P. No.2 committed medical negligence while treating the deceased Sunil Kumar Sirmaur and the O.P. No.2 failed to exercise reasonable care of patient expected from him. Mere unsuccessful treatment does not imply medical negligence.
30. Therefore, on the basis of pleadings of the complainants, it cannot be held that O.P.No.1 & O.P. No.2 have committed any medical negligence while treating deceased Sunil Kumar Sirmaur, hence, the complainants are not entitled to get any compensation from the OPs.
31. Therefore, the complaint filed by the complainants against OPs, is liable to be dismissed, hence the same is dismissed. Parties shall bear their own costs.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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