National Consumer Disputes Redressal
Asit Baran Mondal & Anr. vs Dr. Rita Sinha & Anr. on 3 May, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1524 OF 2015 1. ASIT BARAN MONDAL & ANR. B-1/34,(B), KALYANI, NADIA-741235, WEST BENGAL ...........Complainant(s) Versus 1. DR. RITA SINHA & ANR. MBBS, MS (OBST. & GYNAE)
WELLCARE NURSING HOME, B-9/279(CA), CENTRAL PARK, KALYANI, NADIA-741235, WEST BENGAL 2. WELLCARE NURSING HOME B-0/279(CA), CENTRAL PARK, KALYANI, NADIA-741235, WEST BENGAL ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. Rabin Majumder, Advocate with
Complainant in person For the Opp.Party : Mr. Lokesh Bhola, Advocate
Dated : 03 May 2016 ORDER
DR. S.M. KANTIKAR, MEMBER
1.The brief facts in this complaint are these Smt. Sunanda Mondal (since deceased, herein referred as patient) during her second pregnancy from 13.05.2013 to 17.12.2013 was under treatment and supervision of Dr. Rita Sinha (OP1) at Well Care Nursing Home, Kalyani, West Bengal (OP2). In the second week of August 2013 i.e. in the fifth month of pregnancy, the patient had physical discomfort, abdominal pain, white stools, indigestion, loss of appetite and loss of sleep. She consulted OP1 immediately, but OP1 did not give much importance to the patient‟s complaints and prescribed some common medicines. There was no relief. Thereafter, patient visited OP1 several times for similar complaints. On 09.12.2013, the OP told that "nothing to worry, everything would be alright after delivery". She did not examine to find out real cause of her ill health, also did not advise to consult any physician. After repeated requests by the patient party for diagnostic investigations, the OP1 got irritated and asked the patient angrily to take treatment elsewhere. The patient was administered vaccine on 08.08.2013 and 17.09.2013, suffered episodes of unconscious. The OP was arrogant.
2. On 13.12.2013, the patient‟s condition further deteriorated. There was increased abdominal pain and she was admitted to OP hospital on 14.12.2013. The doctor was not available. Her husband believed to be an anesthetist, advised her for immediate caesarean (LSCS) delivery. The OP1 performed LSCS upon the ill patient without any prior investigations. After delivery, the OP doctor did not attend the patient, despite her residence as well as nursing home was in the same building. After surgery, the condition of the patient further deteriorated. On 16.12.2013, General Physician, Dr. K. P. Haldar was called at OP2, Nursing Home. He examined the patient and opined it as a case of jaundice along with hepatitis. He advised Liver Function Tests (LFT) immediately. Next day morning on 17.12.2013, the LFT revealed abnormal findings i.e. high bilirubin (13 mg) and SGOT, SGPT out of range. On same day without any information or explanation OP1 advised for immediate shifting of the patient to specialized hospital in Kolkata. The discharge certificate (Annexure-5), copies of various test reports (Annexure-6) are attached.
3. The patient was shifted to Medica Super Speciality Hospital at Kolkata in extremely critical condition on 17.12.2013. The doctor there informed that patient is critical ,suffering from liver failure and bleak chances of survival. Several tests were conducted; the reports are at Annexure-C7 (Colly). Subsequently, on 29.12.2013, the patient developed multi organ failure and died at 3:05 P.M.. The doctors at Medica Super Speciality Hospital opined that, OP-1 was grossly negligent and it was professional misconduct ultimately caused death of the patient. The death certificate is Annexure-C8. The complainant No.2 i.e. husband of the patient lodged a police complaint DR No.697/14, PS Kalyani case No.71/14 relating to premature death of the patient (Annexure-C10). The complainant also preferred a complaint before the Government of West Bengal, and Medical council of India, New Delhi, it is still under consideration. Being aggrieved, the complainants, Mr. Asit Baran Mondal, (complainant No.1) the father in law of deceased, Sunanda, and Mr. Surajit Mondal (the husband of the deceased patient as complainant No.2) filed a complaint before this Commission and prayed for compensation of Rs.1,96,40,000/- from the OPs.
4. On 12.01.2016, we have heard the authorised representative, Dr. Kunal Saha, who argued the matter at admission stage. Under the Regulation 16(7) of the Consumer Protection Regulations, 2005, we felt necessary to seek certain clarifications from Dr. Kunal Saha . As per said regulation while a consumer forum may permit an authorised agent to appear before it, but authorised agent shall not be one who has used this as a profession, however, this shall not apply in case of advocates. As per Regulation 16 (8), an authorised agent may be debarred from appearing before a Consumer Forum if he is found guilty of misconduct or any other malpractice at any time. In the present matter, Dr. Kunal Saha, is an Authorised Representative of the complainants, he is admittedly not an advocate by profession and has been appearing in several other matters before different fora as an authorised representative on behalf of patients or doctors as a professional. As per the decision of Hon‟ble Supreme Court in the matter of C. Venkaachalam v. Ajit Kumar C. Shah & Ors. (2011) 9 SCC 707, it is held that in terms of the regulations, as provided and framed by the National Commission, the consumer forum has the right to prevent an authorised agent to appear in case it is found and believed that he is using the said right as a profession (Annexure-6). Therefore, the matter was adjourned for 22.04.2016 with the direction to Dr.Kunal Saha to file an affidavit stating therein that, in how many cases he has appeared as authorized representative or power of attorney holder on behalf of parties throughout India. Further he was ordered to file complete details of all the cases in which he has conducted or conducting the cases on behalf of parties as on today.
5. On 22.04.2016, the authorised representative Dr. Kunal Saha neither appeared nor filed any affidavit as directed by us. The learned counsel for complainant Mr. Rabin Majumder prayed time for Dr. Kunal Shah till July 2016, but we have rejected it . Therefore, Mr. Rabin Majumder, counsel for complainant proceeded to argue the matter. He submitted that, the OP doctors herein are particularly liable to pay extraordinary damage/damages to the complainant particularly for complete failure amounting to ex facie professional negligence and failed process of treatment so adopted in the facts of the case; the OP-1 is responsible for untimely death of the patient.
6. The learned counsel for OPs Mr. Lokesh Bhola, and the OPs in person are present for admission hearing. The counsel submitted that, Dr.Rita Sinha(OP-1) is a qualified gynaecologist (MS OBG). The patient Sunanda was her patient, she (OP1) also conducted 1st delivery by LSCS. OP-1 had good relations with the patient during ANC (Antenatal care) check-up for 2nd pregnancy. OP-1 followed the patient, recorded her all complaints and relevant symptoms till 13.05.2013. She performed proper ANC investigations. The patient never complained of any discomfort suggestive of Liver disorder in her antenatal check-ups.
7. On 14.12.2013, around 8 am, patient came to her clinic with history of loss of foetal movements for one day and labour pain. To avoid further foetal distress and a delay, the patient was immediately admitted, and performed emergency Caesarean Section (LSCS) under spinal anaesthesia, a healthy baby was delivered at 8.56 am. After delivery the patient was normal and comfortable, jaundice was not apparent at the time of admission and after operation. On 16.12.2013, patient had developed icterus and high coloured urine, therefore LFT was advised by OP-1 and referred for Dr.Haldhar, Physician‟s opinion. The reports of LFT and Ultrasonography were available in the morning of 17.12.2013, few blood tests for Anti HAV,HcV, etc., were advised. The physician suspected it as a viral hepatitis, therefore patient was referred to tertiary care centre. Therefore, there was no negligence on the part of OPs. The counsel relied upon the judgments Dr. C.P. Sreekumar v. S. Ramanujam, (2009) 7 SCC 130; Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre & Ors., (2010) 3 SCC 480.
8. We have perused the medical record and noted the sequence of events from the date of admission of the patient. The patient was admitted with labour pain, the OP conducted emergency LSCS. During post delivery period after two days the patient developed jaundice, it was acute one. The LFT values were on rise, therefore for the further management of hepatitis and to avoid any untoward complications ; OP referred her to tertiary care centre.
9. After thoughtful consideration and going through the medical text book (William‟s Obstetrics), we come to know that, it was a case of sub-clinical hepatitis which was not clinically detectable before the LSCS. Acute hepatitis is manifested as an acute fatty lever of pregnancy after 3 days of LSCS. According to text book 'High Risk Pregnancy' by James et al, 4th Ed, Page No.846 to 848 (Annexure-2), ALFP is defined as, "a condition of acute liver failure associated with pregnancy in absence of other causes." The definition of ALFP is more clear in the „Williams Obstetrics‟, 23rd Edition, Page No.1065 (Annexure-3), "ALFP is the most common cause of Acute Liver failure during pregnancy and chance of incidence is probably approximately 1 in 10,000 pregnancies. The symptoms and signs of AFLP are v a gue and nonspecific and are such that making an early diagnosis is challenging.
It is likely that many women experience a prodromal phase in which there is only gradual deterioration in their condition and when jaundice may not be apparent.
10. As per article Acute fatty liver of pregnancy Can J Gastroenterol. 2006 Jan; 20(1): 25-30.
Acute fatty liver of pregnancy (AFLP) is a rare, potentially fatal complication that occurs in the third trimester or early postpartum period. Although the exact pathogenesis is unknown, this disease has been linked to an abnormality in fetal fatty acid metabolism. Early diagnosis of AFLP sometimes can be difficult because it shares features with other common conditions such as pre-eclampsia, viral hepatitis and cholestasis of pregnancy. However, a careful history and physical examination, in conjunction with compatible laboratory and imaging results, are often sufficient to make the diagnosis, and liver biopsy is rarely indicated. Supportive care and expeditious delivery are essential to optimal maternal- fetal outcomes and remain as the mainstay treatment for AFLP.
11. In the instant case, post-delivery on 3rd day the patient developed jaundice, it was further confirmed by LFT, relevant laboratory investigations and USG study as a viral hepatitis on 17.12.2013 . The patient was shifted to Multi Medica Centre having all facilities to deal with hepatitis and it‟s complications. The patient further developed hepatic encephalopathy; she was put on ventilator on 18.12.2013. Thereafter, developed several complications like pneumonia, surgical emphysema, pneumothorax led to cardiac arrest and the patient died on 29.12.2013. We do not find any negligence or reckless attitude of the OPs either during antenatal care or while conducting LSCS of the patient.
12. In our view, complainant made vague averments in his compliant to drag the doctor to this commission. The Hon‟ble Supreme Court in Jacob Mathew's case (2005) SCC (Crl.) 1369 held that, the onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence. It also held that, a mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. In Jacob Mathew case (supra) it has been observed as under:
"48(1) Negligence is the breach of a duty caused 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. 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 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 the 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."
73. 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."
74. In another leading case Maynard v. West Midlands Regional Health Authority the words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 were referred to and quoted as under:-
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men...The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...".
13. Court further observed that,
81. 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 the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals
14. In Achutrao Haribhau Khodwa and others versus State of Maharashtra and others (1996) 2 SCC 634 Hon‟ble Supreme Court held as follows:
"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 advisable for 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 a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."
15. Therefore, applying precedent from the judgments discussed supra, the medical text book and reference from literature, and the hospital records, we are of opinion that, OP-1 was not negligent. She is a qualified and experienced Gynaecologist and Obstetrician, performed regular ANC check-ups, advised proper investigations and medication. The Liver Function Test (LFT) is not a part of routine antenatal investigations. OP-1‟s timely decision to perform LSCS was correct to avert foetal distress. LSCS was performed as per standard with duty of care. Also, keeping in mind about Bolam‟s test, which held that, "as long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind."
DR. S.M. KANTIKAR, MEMBER
1. The brief facts in this complaint are these Smt. Sunanda Mondal (since deceased, herein referred as patient) during her second pregnancy from 13.05.2013 to 17.12.2013 was under treatment and supervision of Dr. Rita Sinha (OP1) at Well Care Nursing Home, Kalyani, West Bengal (OP2). In the second week of August 2013 i.e. in the fifth month of pregnancy, the patient had physical discomfort, abdominal pain, white stools, indigestion, loss of appetite and loss of sleep. She consulted OP1 immediately, but OP1 did not give much importance to the patient‟s complaints and prescribed some common medicines. There was no relief. Thereafter, patient visited OP1 several times for similar complaints. On 09.12.2013, the OP told that "nothing to worry, everything would be alright after delivery". She did not examine to find out real cause of her ill health, also did not advise to consult any physician. After repeated requests by the patient party for diagnostic investigations, the OP1 got irritated and asked the patient angrily to take treatment elsewhere. The patient was administered vaccine on 08.08.2013 and 17.09.2013, suffered episodes of unconscious. The OP was arrogant.
2. On 13.12.2013, the patient‟s condition further deteriorated. There was increased abdominal pain and she was admitted to OP hospital on 14.12.2013. The doctor was not available. Her husband believed to be an anesthetist, advised her for immediate caesarean (LSCS) delivery. The OP1 performed LSCS upon the ill patient without any prior investigations. After delivery, the OP doctor did not attend the patient, despite her residence as well as nursing home was in the same building. After surgery, the condition of the patient further deteriorated. On 16.12.2013, General Physician, Dr. K. P. Haldar was called at OP2, Nursing Home. He examined the patient and opined it as a case of jaundice along with hepatitis. He advised Liver Function Tests (LFT) immediately. Next day morning on 17.12.2013, the LFT revealed abnormal findings i.e. high bilirubin (13 mg) and SGOT, SGPT out of range. On same day without any information or explanation OP1 advised for immediate shifting of the patient to specialized hospital in Kolkata. The discharge certificate (Annexure-5), copies of various test reports (Annexure-6) are attached.
3. The patient was shifted to Medica Super Speciality Hospital at Kolkata in extremely critical condition on 17.12.2013. The doctor there informed that patient is critical ,suffering from liver failure and bleak chances of survival. Several tests were conducted; the reports are at Annexure-C7 (Colly). Subsequently, on 29.12.2013, the patient developed multi organ failure and died at 3:05 P.M.. The doctors at Medica Super Speciality Hospital opined that, OP-1 was grossly negligent and it was professional misconduct ultimately caused death of the patient. The death certificate is Annexure-C8. The complainant No.2 i.e. husband of the patient lodged a police complaint DR No.697/14, PS Kalyani case No.71/14 relating to premature death of the patient (Annexure-C10). The complainant also preferred a complaint before the Government of West Bengal, and Medical council of India, New Delhi, it is still under consideration. Being aggrieved, the complainants, Mr. Asit Baran Mondal, (complainant No.1) the father in law of deceased, Sunanda, and Mr. Surajit Mondal (the husband of the deceased patient as complainant No.2) filed a complaint before this Commission and prayed for compensation of Rs.1,96,40,000/- from the OPs.
4. On 12.01.2016, we have heard the authorised representative, Dr. Kunal Saha, who argued the matter at admission stage. Under the Regulation 16(7) of the Consumer Protection Regulations, 2005, we felt necessary to seek certain clarifications from Dr. Kunal Saha . As per said regulation while a consumer forum may permit an authorised agent to appear before it, but authorised agent shall not be one who has used this as a profession, however, this shall not apply in case of advocates. As per Regulation 16 (8), an authorised agent may be debarred from appearing before a Consumer Forum if he is found guilty of misconduct or any other malpractice at any time. In the present matter, Dr. Kunal Saha, is an Authorised Representative of the complainants, he is admittedly not an advocate by profession and has been appearing in several other matters before different fora as an authorised representative on behalf of patients or doctors as a professional. As per the decision of Hon‟ble Supreme Court in the matter of C. Venkaachalam v. Ajit Kumar C. Shah & Ors. (2011) 9 SCC 707, it is held that in terms of the regulations, as provided and framed by the National Commission, the consumer forum has the right to prevent an authorised agent to appear in case it is found and believed that he is using the said right as a profession (Annexure-6). Therefore, the matter was adjourned for 22.04.2016 with the direction to Dr.Kunal Saha to file an affidavit stating therein that, in how many cases he has appeared as authorized representative or power of attorney holder on behalf of parties throughout India. Further he was ordered to file complete details of all the cases in which he has conducted or conducting the cases on behalf of parties as on today.
5. On 22.04.2016, the authorised representative Dr. Kunal Saha neither appeared nor filed any affidavit as directed by us. The learned counsel for complainant Mr. Rabin Majumder prayed time for Dr. Kunal Shah till July 2016, but we have rejected it . Therefore, Mr. Rabin Majumder, counsel for complainant proceeded to argue the matter. He submitted that, the OP doctors herein are particularly liable to pay extraordinary damage/damages to the complainant particularly for complete failure amounting to ex facie professional negligence and failed process of treatment so adopted in the facts of the case; the OP-1 is responsible for untimely death of the patient.
6. The learned counsel for OPs Mr. Lokesh Bhola, and the OPs in person are present for admission hearing. The counsel submitted that, Dr.Rita Sinha(OP-1) is a qualified gynaecologist (MS OBG). The patient Sunanda was her patient, she (OP1) also conducted 1st delivery by LSCS. OP-1 had good relations with the patient during ANC (Antenatal care) check-up for 2nd pregnancy. OP-1 followed the patient, recorded her all complaints and relevant symptoms till 13.05.2013. She performed proper ANC investigations. The patient never complained of any discomfort suggestive of Liver disorder in her antenatal check-ups.
7. On 14.12.2013, around 8 am, patient came to her clinic with history of loss of foetal movements for one day and labour pain. To avoid further foetal distress and a delay, the patient was immediately admitted, and performed emergency Caesarean Section (LSCS) under spinal anaesthesia, a healthy baby was delivered at 8.56 am. After delivery the patient was normal and comfortable, jaundice was not apparent at the time of admission and after operation. On 16.12.2013, patient had developed icterus and high coloured urine, therefore LFT was advised by OP-1 and referred for Dr.Haldhar, Physician‟s opinion. The reports of LFT and Ultrasonography were available in the morning of 17.12.2013, few blood tests for Anti HAV,HcV, etc., were advised. The physician suspected it as a viral hepatitis, therefore patient was referred to tertiary care centre. Therefore, there was no negligence on the part of OPs. The counsel relied upon the judgments Dr. C.P. Sreekumar v. S. Ramanujam, (2009) 7 SCC 130; Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre & Ors., (2010) 3 SCC 480.
8. We have perused the medical record and noted the sequence of events from the date of admission of the patient. The patient was admitted with labour pain, the OP conducted emergency LSCS. During post delivery period after two days the patient developed jaundice, it was acute one. The LFT values were on rise, therefore for the further management of hepatitis and to avoid any untoward complications ; OP referred her to tertiary care centre.
9. After thoughtful consideration and going through the medical text book (William‟s Obstetrics), we come to know that, it was a case of sub-clinical hepatitis which was not clinically detectable before the LSCS. Acute hepatitis is manifested as an acute fatty lever of pregnancy after 3 days of LSCS. According to text book 'High Risk Pregnancy' by James et al, 4th Ed, Page No.846 to 848 (Annexure-2), ALFP is defined as, "a condition of acute liver failure associated with pregnancy in absence of other causes." The definition of ALFP is more clear in the „Williams Obstetrics‟, 23rd Edition, Page No.1065 (Annexure-3), "ALFP is the most common cause of Acute Liver failure during pregnancy and chance of incidence is probably approximately 1 in 10,000 pregnancies. The symptoms and signs of AFLP are v a gue and nonspecific and are such that making an early diagnosis is challenging.
It is likely that many women experience a prodromal phase in which there is only gradual deterioration in their condition and when jaundice may not be apparent.
10. As per article Acute fatty liver of pregnancy Can J Gastroenterol. 2006 Jan; 20(1): 25-30.
Acute fatty liver of pregnancy (AFLP) is a rare, potentially fatal complication that occurs in the third trimester or early postpartum period. Although the exact pathogenesis is unknown, this disease has been linked to an abnormality in fetal fatty acid metabolism. Early diagnosis of AFLP sometimes can be difficult because it shares features with other common conditions such as pre-eclampsia, viral hepatitis and cholestasis of pregnancy. However, a careful history and physical examination, in conjunction with compatible laboratory and imaging results, are often sufficient to make the diagnosis, and liver biopsy is rarely indicated. Supportive care and expeditious delivery are essential to optimal maternal- fetal outcomes and remain as the mainstay treatment for AFLP.
11. In the instant case, post-delivery on 3rd day the patient developed jaundice, it was further confirmed by LFT, relevant laboratory investigations and USG study as a viral hepatitis on 17.12.2013 . The patient was shifted to Multi Medica Centre having all facilities to deal with hepatitis and it‟s complications. The patient further developed hepatic encephalopathy; she was put on ventilator on 18.12.2013. Thereafter, developed several complications like pneumonia, surgical emphysema, pneumothorax led to cardiac arrest and the patient died on 29.12.2013. We do not find any negligence or reckless attitude of the OPs either during antenatal care or while conducting LSCS of the patient.
12. In our view, complainant made vague averments in his compliant to drag the doctor to this commission. The Hon‟ble Supreme Court in Jacob Mathew's case (2005) SCC (Crl.) 1369 held that, the onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence. It also held that, a mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. In Jacob Mathew case (supra) it has been observed as under:
"48(1) Negligence is the breach of a duty caused 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. 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 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 the 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."
73. 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."
74. In another leading case Maynard v. West Midlands Regional Health Authority the words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 were referred to and quoted as under:-
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men...The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...".
13. Court further observed that,
81. 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 the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals
14. In Achutrao Haribhau Khodwa and others versus State of Maharashtra and others (1996) 2 SCC 634 Hon‟ble Supreme Court held as follows:
"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 advisable for 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 a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."
15. Therefore, applying precedent from the judgments discussed supra, the medical text book and reference from literature, and the hospital records, we are of opinion that, OP-1 was not negligent. She is a qualified and experienced Gynaecologist and Obstetrician, performed regular ANC check-ups, advised proper investigations and medication. The Liver Function Test (LFT) is not a part of routine antenatal investigations. OP-1‟s timely decision to perform LSCS was correct to avert foetal distress. LSCS was performed as per standard with duty of care. Also, keeping in mind about Bolam‟s test, which held that, "as long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind."
The patient unfortunately suffered acute hepatitis after delivery; it was neither due to negligence of OPs nor due to LSCS.
16. Therefore, considering the entirety of the instant case, we hereby dismiss the complaint. However, there shall be no order as to costs.
The patient unfortunately suffered acute hepatitis after delivery; it was neither due to negligence of OPs nor due to LSCS.
16. Therefore, considering the entirety of the instant case, we hereby dismiss the complaint. However, there shall be no order as to costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER