Delhi District Court
Sh. M.S. Yadav vs Dr. R.R. Mohanty on 31 January, 2017
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL JUDGE
01 ( WEST), TIS HAZARI COURTS, DELHI.
SCJ No. 618805/16
Date of Institution : 29.11.2014
Date of reservation of judgment : 30.01.2017
Date of pronouncement of Judgment : 31.01.2017
Sh. M.S. Yadav
S/o Late Shri Kishan
R/o 36A, Arjun Apartment
FBlock, Vikaspuri, New Delhi.
.................Plaintiff
vs.
1. DR. R.R. Mohanty
Mohanti Surgical Centre
Nursing Home, DGIII/69
Vikaspuri, New Delhi18
2. United India Insurance Co. Ltd.
42C, Third Floor
Mool Chand Commercial Complex
New Delhi
..............Defendant
SUIT FOR RECOVERY
JUDGMENT
1. Brief facts, as per plaint are that plaintiff is a practicing lawyer by profession having his office at Tis Hazari Courts, Delhi and defendant is a doctor (surgeon) and is running his nursing home in Vikaspuri, Delhi. On 22.07.2014, when the plaintiff was passing through a lane in Vikaspuri, he found a dog entangled in the wheels of a rehari ( wooden cart) and it was trying to escape. Plaintiff saw SCJ No. 618805/16 M.S. Yadav vs R.R. Mohanty 12/12 the dog and went there to help it by removing its legs from the said rehari and managed to successfully take it out. However unfortunately the dog got so frightened that it attacked and bit the right leg of plaintiff near the thigh and created a deep wound from his teeth. Plaintiff immediately went to the nursing home of defendant no.1 where defendant no.1 gave medical aid to him. Defendant also gave injection to the plaintiff alongwith some medicines. Further defendant no. 1 also issued a prescription dated 22.07.2014, prescribing medicines to the plaintiff alongwith instructions of five injections and daily dressing for seven days.
2. Plaintiff further states that he regularly visited the clinic of defendant, where the defendant gave five injections to him and regular dressing for seven days. However there was no relief to him ( plaintiff) as the wound had not dried and puss was leaking from the said wound but despite that he continued to visit defendant no.1 throughout fifteen days from the date of incident. Finally plaintiff made a complaint with regard to nonhealing of his wound to defendant, on 10.08.2014 upon which defendant no.1 gave him local anesthesia and also discharged the puss from the wound of plaintiff.
3. Plaintiff further states that defendant charged Rs. 4,000/ for five injections and Rs.1,050/for seven dressings and further Rs.1,500/ for cleaning the puss and giving local anesthesia. However no bill or receipt was issued by the defendant no.1 despite the demands made by the plaintiff. The plaintiff also purchased medicines prescribed by defendant no.1 from the medical stores to the tune of Rs.6550/ + Rs.2685/ against bills.
4. Plaintiff alleges that defendant no.1 had not prescribed the SCJ No. 618805/16 M.S. Yadav vs R.R. Mohanty 12/12 required medicines to him due to which he went on suffering from the said dog biting for almost two months, due to pain from the said wound besides leakage of puss throughout this period. This not only caused mental agony besides physical pain and suffering, but also affected the practice of the plaintiff.
5. It is further stated that in view of above fact, plaintiff preferred to change the doctor and he visited Sharma Hospital at H482, Vikaspuri, New Delhi18 where the concerned doctor prescribed the correct potency medicines to him and the desired result was achieved alongwith the relief to the plaintiff.
6. Under such circumstances, plaintiff got served a legal notice dated 11.09.2014 upon defendant no.1explaining the entire facts, suffering and expenses incurred by him for the said treatment which was actually a matter of hardly five days but due to the negligent act of defendant, the treatment went on for two months. After service of legal notice, defendant no.1 gave his reply dated 08.10.2014 to plaintiff denying the facts in an unparliamentary manner stating that plaintiff did not take care of the wound and the wound was required to be kept open in hygienic condition whereas seven days daily dressing was himself done by the doctor, as is apparent from the prescriptions.
7. In view of the aforesaid negligence of defendant no.1, plaintiff has filed the present suit seeking damages for Rs. 1 lakh from defendant no.1.
8. Written statement was filed on behalf of defendant no.1 wherein it is stated that the plaintiff has filed a frivolous suit. The same is unsustainable in the eyes of law and has been filed without any justified reason/cause against the said defendant but just to harass, SCJ No. 618805/16 M.S. Yadav vs R.R. Mohanty 12/12 defame and extort illegal sum of money from him (defendant no.1). The plaintiff has failed to show how defendant no.1 was negligent and no cause of action arose against him. The suit was also bad for nonjoinder of necessary party as United India Insurance Company with which defendant no.1 was insured, had not been made a party.
9. On facts, it is further stated that the plaintiff had come to defendant no.1 on 22.07.2014 with history of category 2 dog bites in both legs. The wound was cleaned with Savlon and Betadine. The plaintiff was educated in the simple local language to take care of wound and warned not to use procedures that may further contaminate the wounds. The plaintiff was given tetanus toxoid and also advised to take injections "Vaxirab" on 22.07.2014, 24.07.2014, 28.07.2014, 04.08.2014 and 20.08.2014 (5 dose schedule).
10. Further states that the plaintiff came again only after 20 days on 10.08.2014 with infected wound with serous discharge. This shows that he did not take proper care of his wound. The dog bite wound are never dressed and has to be kept open. On 10.08.2014, wound was antibioma and it was drained under local anesthesia and there was no dressing done. Prescription of Dr. Sanjay Sharma confirms the same diagnosis. Infact, the plaintiff went to another doctor who just prescribed medicines and also clearly mentioned that there was no discharge for 15 days.
11. Further states that only 15 % to 20 % of dog bite wounds became infected and need simple antibiotic treatment. It is also stated that the plaintiff ought to have produced the medical literature to prove as to what is the correct treatment for class 2 dog bites. It is also contended that everything had been done by defendant no.1 deligently, SCJ No. 618805/16 M.S. Yadav vs R.R. Mohanty 12/12 prudently, with utmost due care and caution in treating the plaintiff and there was no negligence, deficiency in service or unfair trade practice on the part of defendant no.1. In rest of the written statement, contentions raised in plaint were denied and prayer was made to dismiss the suit.
12. Written statement has also been filed on behalf of defendant no.2. It is stated that defendant no.2 had issued a professional indemnity policy for Rs.5,00,000/ in favour of defendant no.1 for a period of one year or any one accident starting from 25.03.2014 till 24.03.2015. The policy is designed to provide insurance protection to the doctors/hospitals against their legal liability and to pay damages arising out of negligence in the performance of their professional duties. Accordingly, as per the terms and conditions of the policy, the company is liable to reimburse the amount to the extent of sum insured to the insured doctor only if the cause of action arise during the policy of insurance and all the terms and conditions of the policy are duly fulfilled by the insured.
13. It is further stated that this is a dispute between plaintiff and defendant no.1 and there is no allegation levelled against defendant no.2. There is no cause of action against defendant no.2 and hence prayer was made to dismiss the suit.
14. Replication was also filed by the plaintiff wherein the averments made in written statement were denied.
15. Vide Order dated 08.12.2015 following issues were framed by the Ld. Predecessor of this court :
1. Whether the plaintiff is entitled to the decree of sum of Rs. 1,00,000/ as damages as prayed for ?
SCJ No. 618805/16 M.S. Yadav vs R.R. Mohanty 12/12 OPP
2. Whether the suit is bad for misjoinder of necessary parties ? OPD2
3. Relief.
16. In order to prove his case, the plaintiff examined two witnesses. PW1 is plaintiff himself and PW2 is Sh. Vineet Grover. In their testimonies following documents were exhibited :
" Affidavit of PW1 is Ex.PW 1/A wherein the averments of the plaint have been reproduced. legal notice is Ex. PW 1/1, AD card is Ex. PW 1/ 2, reply to the legal notice dated 09.10.2014 is Ex. PW 1/3, medical prescriptions dated 22.07.2014 and 30.08.2014 are Ex. PW 1/ 4 and Ex. PW 1/5 respectively and six medicine receipts are Ex. PW 1/ 6 (colly). "
17. Both the witnesses were duly crossexamined and discharged. PE was closed. On the other hand, defendant no.1 only examined himself as DW1. In his testimony, Affidavit of DW1 was exhibited as DW1/A. He was also crossexamined and DE was closed accordingly as defendant no.2 did not lead any evidence.
18. I have heard the final arguments advanced by Ld. counsels for both parties as well as perused the evidence on record. My issuewise findings are as under :
ISSUE No.1
1. Whether the plaintiff is entitled to the decree of sum of Rs. 1,00,000/ as damages as prayed for ?
The onus to prove this issue was upon the plaintiff.
SCJ No. 618805/16 M.S. Yadav vs R.R. Mohanty 12/12
19. As already stated above, the allegations of plaintiff is that of medical negligence on the part of defendant no.1 in giving him medical treatment for dog bite. In para 6 of the plaint, plaintiff has specifically alleged that the defendant had not prescribed the required medicines to him due to which he went on to suffer for almost two months due to pain in the wound as well as leakage of pus throughout the said period. Besides mental agony and pain caused to him, his practice was also affected. Hence this suit for damages of Rs. 1 lakh had been filed by him.
20. As far as medical negligence is concerned, the law is well settled. In the case of Laxman v. Trimbak Bapu Godbole and Anr. AIR 1969 SC 128, the Hon'ble Supreme Court had observed:
"The duties which a doctor owes to his patient are clear. A person who hold 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 undertaken 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."
Similarly in Achut Rao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634, the Hon'ble Supreme court observed as follows: "A medical practitioner has various duties towards his patient and the must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioners differes 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 advisable for SCJ No. 618805/16 M.S. Yadav vs R.R. Mohanty 12/12 treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due are, skill and diligence and if the patient still doe snot survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable.
Reference can also be made to Halsbury's Laws of England, Ed.3 Vol.26, P.1718, "22. Negligence: duties owed to patient. A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b). A breach of any of these duties will support an action for negligence by the patient (c). Degree of skill and care required. 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 (d); a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way (e); nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men (f)."
In M/s Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39, it was held that : "The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man SCJ No. 618805/16 M.S. Yadav vs R.R. Mohanty 12/12 professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence."
In Calcutta Medical Research Institute v. Bimlesh Chatterjee (1999) 1 CPJ 13 (NC) it was held that the onus of proving negligence and the resultant deficiency in service was clearly on the complainant. In Kanhaiya Kumar Singh vs. Park Medicare and Research Centre III (1999) CPJ 9 (NC), it was held that negligence has to be established and cannot be presumed.
21. In view of the above proposition of law, it is well settled that defendant can be guilty of medical negligence only when plaintiff manages to prove that the defendant no.1 had given him treatment for the dog bite which was not as per the agreed medical norms procedure and practice and had failed to exercise reasonable degree of care as was expected of him. Furthermore, if there are two courses of treatment available and defendant no.1 has adopted a particular course of treatment out of those two courses, still the defendant cannot be held guilty of medical negligence if the adopted course does not give the desired result. Negligence should be clearly apparent from facts of the case.
22. In the instant suit, it can be seen that plaintiff has merely levelled allegations against the defendant no.1 of being negligent in giving treatment. He has not produced any expert medical opinion of another qualified doctor in evidence, so as to prove that the adopted course of treatment as given by defendant no.1, was against the accepted medical norms and practices. Merely because it took about one and a half month for the wound to be completely healed and for the pain to subside, no conclusion can be drawn that defendant no.1 was guilty of medical negligence.
SCJ No. 618805/16 M.S. Yadav vs R.R. Mohanty 12/12
23. A contention was also raised on behalf of plaintiff that the defendant no.1carried out daily dressing of the wound but when plaintiff visited another doctor i.e. Dr. Sharma on 30.08.2014, the said doctor told him (plaintiff) that the wound of a dog bite, is required to be kept open and dressing of the wound is wrong for treating the same. However in the legal notice Ex. PW 1/1 there is no such allegation made by plaintiff that defendant had also done daily dressing of the wound. It is merely stated in the legal notice that when plaintiff visited defendant no.1 on 22.07.2014, defendant gave him two injections and prescribed five days medicines however, despite taking medicines for fifteen days, the wound did not dry up. Infact, in his reply to legal notice Ex. PW 1/3, defendant no.1 has stated that the wound did not heal because plaintiff did not take proper care of the wound as a wound from a dog bite, is never dressed and is to be kept open in a hygienic condition. Defendant no.1 also specifically stated that there was no dressing done. It is after the receipt of this reply to the legal notice, the plaintiff has filed the present plaint stating that even daily dressing was done by the defendant no.1 from the first date itself. Plaintiff should have examined Dr. Sharma in support of his allegations but has not done so.
24. Furthermore, even in the prescription slip Ex. PW1/4 of date 22.07.2014, it is nowhere mentioned that daily dressing was advised or required to be done. It is only when the plaintiff again visited defendant no.1 on 10.08.2014 with " serous" discharge from the wound, defendant specifically prescribed daily dressing to him. In the cross examination, defendant no.1 does admit that he adviced dressing to the defendant but the same appears to be in reference to the visit of plaintiff SCJ No. 618805/16 M.S. Yadav vs R.R. Mohanty 12/12 on 10.08.2014, when he had serous discharge from the wound and local anesthesia was also prescribed to him. Under such circumstances, as there is no proof on record to show that daily dressing had been advised and done by defendant no.1, there can be no presumption that defendant no.1 did not follow the prescribed medical norms and procedure in giving the treatment to plaintiff for dog bite wound. Infact, there is even no medical literature placed on record by plaintiff to show whether a dog bite wound is indeed required to be dressed up regularly or to be kept open for healing. No presumption of facts can be made.
25. As already stated above, merely because the wound of plaintiff did not heal within the normal period, there can be no presumption against defendant no.1 of being negligent. Infact, it can also be seen that when plaintiff visited another doctor on 30.08.2014, said doctor has stated in his prescriptions slip Ex. PW 1/5 that there was no discharge from the wound for last fifteen days. So the wound appears to have been healed by 15.08.2014 itself and as per the medicines prescribed vide prescription dated 10.08.2014 of defendant no.1, as the plaintiff was required to take those medicines for seven days. Moreover even the medicines prescribed by the said second doctor appears only to be Vitamin tablets. Under such circumstances, it is difficult to presume any sort of medical negligence on the part of defendant no.1.
This issue is accordingly decided in favour of defendant no.1 and against the plaintiff.
26. ISSUE No. 22. Whether the suit is bad for misjoinder of necessary parties ?
SCJ No. 618805/16 M.S. Yadav vs R.R. Mohanty 12/12 Onus to prove this issue was upon defendant no.2.
Defendant no.2 has filed its written statement contending that the suit was bad for misjoinder of necessary parties as it was wrongly impleaded in the suit. Though no evidence was led on its behalf, however this being a legal issue, I will decide the same.
27. Defendant no.2 had been impleaded on application U/o I Rule 10 CPC of defendant no.1 which was allowed on 'no objection' being given by plaintiff as defendant no.1 was insured with defendant no.2 i.e."United India Insurance Company Ltd."through its Professional Indemnity Doctor Policy w.e.f 25.03.2014 to 24.03.2015. In my considered opinion, the insurance company is a proper and necessary party to the suit. The suit has been filed by plaintiff seeking compensation from defendant no.1 on the ground of medical negligence. Defendant no.2 insures defendant no.1 against any such act of negligence. Hence it is a proper and necessary party to the suit since its financial interest may be adversely affected from the outcome of the present suit. So its presence is necessary.
This issue is decided in favour of plaintiff and against defendant no.2.
28. Relief In view of my above mentioned observations and findings qua Issue No.1,suit of plaintiff is dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court ( A.K. Agrawal)
today on 31.01.2017 Civil Judge01 ( West)/Delhi
SCJ No. 618805/16 M.S. Yadav vs R.R. Mohanty 12/12