State Consumer Disputes Redressal Commission
Baby Akanksha(Minor) vs Kukreja Nursing Home on 30 November, 2007
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 30.11.2007 Appeal No. A-1812/03 (Arising out of Order dated 29-09-2003 passed by the District Consumer Forum, CSC, Saini Enclave, Delhi in Case No.802/01) Baby Akanksha(Minor) Appellant Represented through her Through Father & natural guardian Ms. Shobha &, Sh. P.K. Panjwani, Mr. R.K. Panigrahi, R/o E-83, East Vinod Nagar, Advocates. Delhi-110091. Versus M/s. Kukreja Nursing Home Respondent D-36, Acharya Niketan, Through Mayur Vihar, Phase-I, Mr. Sandeep Kapoor, Delhi-110092. Advocate CORAM: Justice J.D. Kapoor President Ms. Rumnita Mittal Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President (Oral)
1. Vide impugned order dated 29.09.2003 passed by the District Forum, the complaint of the appellant seeking compensation on account of the medical negligence on the part of the respondent nursing home was dismissed by the District Forum vide its order dated 29.09.2003 merely on the premise that as is welknown hepatitis is a disease which is not amenable to quick relief and usually the treatment is long and the appellant has not produced any expert opinion or specific evidence to establish a deficiency on the part of the respondent and further that it is for the doctors to state whether the condition has improved or not and a lay-man cannot be a judge in such matters and besides this there is no evidence to suggest that increase of Billirubin from 8.0 on 03.08.01 to 14.3 on 07.08.01 can be taken as evidence of deficiency on service. Feeling aggrieved appellant has preferred this appeal.
2. In this regard the learned counsel for the appellant has referred to medical literature which is contrary to the opinion given by the District Forum that the increase of Billirubin from 8.0 on 03.08.01 to 14.3 on 07.08.01 cannot be taken as evidence as deficiency in service. Whenever a case of medical negligence is filed by a lay-man it becomes an obligation of the District Forum to obtain the expert opinion on its own as to expect a person who has already been wronged to incur more expenses on obtaining the expert opinion by giving fees etc. is contrary to the object of the Consumer Protection Act as the interest of the consumer has to be protected at any cost. If there was some doubt in the mind of the District Forum that the matter cannot be adjudicated without expert opinion it should have obtained the expert opinion on its own by making reference to the Govt. hospital of repute. Moreover the medical literature as to the increase in Billirubin has not been dealt with.
3. On the concept of medical negligence we have drawn certain criteria from various decisions of English Courts and Supreme Court in India in S.C. Mathur Vs All India Institute of Medical Science C.C. No.268/95 dated 08.08.2006. These are as under :-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
4. The foregoing reasons pursuade us to allow the appeal, set aside the impugned order and send back the matter to District Forum to decide it afresh with the direction that the District forum shall obtain an expert opinion on its own to arrive at just conclusion or the counsel for the complainant shall move an application in this regard by way of reference.
5. Parties shall appear before the District Forum on 11.01.2008. Since the appellant is very poor person and has no means, we appoint Ms. Shoba, Advocate as amicus curiae for the purpose of prosecuting the matter before the District Forum and fix her fees as Rs. 10,000/- which shall be payable from the Consumer Welfare Fund (Legal Aid). Her address/particulars as available in the office is as under :-
C-62, IInd Floor, East of Kailash, New Delhi 110065.
Tel. Nos.
65659686/65659687/26935483
6. Since it is a case of medical negligence in respect of minor child and the complaint was filed many years before, the District Forum shall decide it positively within three months even if it is taken on day to day basis.
7. Bank Guarantee/FDR, if any furnished by the appellant, be returned forthwith.
8. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record room.
9. Announced on 30th day of November, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member ysc