State Consumer Disputes Redressal Commission
Parvati Devi Hospital vs Jarnail Singh on 9 February, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 891 of 2016
Date of Institution : 28.11.2016
Date of Reserve : 19.01.2018
Date of Decision : 09.02.2018
Smt. Parvati Devi Hospital, under Rai Bahadur Kishore Chand
Maheshwari Charitable Trust, A-Block, Ranjit Avenue, Amritsar,
through its Authorised person Sh. Sunil Handa.
....Appellant/Op No. 2
Versus
1. Jarnail Singh (Father)
2. Harsharan Kaur (Mother)
Both Parents/Legal Heirs of the deceased Tajinder Kaur R/o H.
No. 18, Gali Opp. Rajan Video Hall, Shiv Nagar, Batala Road,
Amritsar.
Respondent Nos. 1 & 2/Complainants
3. Ms Fortis Escorts Hospital, situated at Majitha Verka Bye
Pass Road, Amritsar, through its MD/ Chairman/ Legal
Representative/ Principal Officer.
4. Reliance General Insurance Co. Ltd., Eminent Mall, 3rd
Floor, The Mall, Amritsar, through its Branch Manager.
....Respondents Nos.3 &4/Op No. 3 & 5
5. Dr. Kamalpreet Kaur, M.O. Smt. Parvati Devi Hospital, A-
Block, Ranjit Avenue, Amritsar.
6. The New India Assurance Co. Ltd., SCO 122, Ranjit Avenue,
Amritsar; through its Branch Manager.
Performa Respondents
First Appeal against the order dated
6.9.2016 of the District Consumer
Disputes Redressal Forum, Amritsar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
First Appeal No. 891 of 2016 2
Present:-
For the appellant :Sh.Sukhandeep Singh, Advocate with
Sh. Updip Singh, Advocate
For respondent Nos.1&2:Sh. K.P. Singh, Advocate
For respondent No. 3: None.
For respondent No.4 : Sh. Satpal Dhamija, Advocate
For respondent No.5 : Service dispensed with
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The appellant/Op No.2 (hereinafter referred as Op No.2) has filed the present appeal against the order dated 6.9.2016 passed in consumer complaint No. 2 dated 5.9.2014 by the District Consumer Disputes Redressal Forum, Amritsar (hereinafter referred as the District Forum) vide which the complaint filed by the complainant was allowed against Op No. 2 with a direction to pay Rs. 10 Lacs as compensation to the complainants. The cost of litigation was assessed as Rs. 5,000/-. Op No. 2 was further directed to pay this amount within a period of 30 days from the date of receipt of the copy of the order, failing which awarded amount shall carry interest @ 9% p.a. from the date of passing the order till full and final recovery.
2. Complaint was filed by the complainants under the Consumer Protection Act, 1986 (in short 'the Act') against the Ops on the averments that complainants are real guardian i.e. father and mother of their daughter Tajinder Kaur. On account of death of Tajinder Kaur, complaint is being filed by them being her guardian. Tajinder Kaur aged about 27 years was a brilliant student studied upto M.Tech (Computer and Information First Appeal No. 891 of 2016 3 Technology) and was serving as Lecturer in Global Institute, Amritsar. She felt sick and was taken to Dr. G.S. Arora, Ranjit Avenue, Amritsar for treatment. Some medical tests were conducted but on 27.10.2009, her health became more disturbed and she was got admitted in Guru Nanak Dev Hospital, Amritsar. Medical Tests were conducted there and it was declared that symptoms are of Dengu. On 28.10.2009 at about 10.00 a.m., Tajinder Kaur was got admitted with Op No. 2 for better medical treatment and showed the previous medical reports of Tajinder Kaur, whereas Op No. 1 treating doctor of Op No. 2 stated that their daughter Tajinder Kaur was not having any problem of Dengu and she was suffering from minor infection and will be cured very soon. The complainant told about the worst condition of their daughter but Op Nos. 1 & 2 did not show any interest and kept on assuring the complainants that after the infection is cured, vomiting will stop and further assured that injection to their daughter has been given and till morning she will be all right but the health condition of Tajinder Kaur turned bad to worst, which was continuously brought to the notice of Op Nos. 1 & 2. On 29.10.2009 at about 7.00 a.m., bleeding started from the genital parts of their daughter, although menstrual period had closed 10 days before, upon which complainants got worried and immediately information was given to the Doctor but despite that Op Nos. 1 & 2 did not turn up to check their daughter and sent some other Doctor, who was not having appropriate knowledge about the condition and the treatment of the daughter of the First Appeal No. 891 of 2016 4 complainants. At about 2.30 p.m. when the complainant shouted upon the authorities of Op No. 2, then Op Nos. 1 & 2 took Ultrasound Scan of the daughter of the complainants after delay of 6 hours. At about 3.15 p.m., Op No. 1 approached the complainants and told that condition of their daughter is very critical and case of her medical treatment is out of their control and advised to take the complainant to Escort Hospital, Amritsar. Complainant immediately at 3.30 p.m. took her daughter to Escort Hospital, Amritsar, she was attended by Dr. H.P. Singh and Dr. S.S. Mahi, who told the complainants that they have delayed in admitting their daughter in this hospital and disease of dengu is at last stage and blood platelets come down to 18000. The Doctors asked the complainants to immediately provide the blood platelets. 2-3 times platelets were provided in the body of his daughter but there was no change in the health condition of the daughter of the complainant and at about 9.00 to 9.30 a.m. she died. After the death of their daughter, the complainants and other family member approached the Ops and told about the negligence in treating their daughter and responsible of her death, upon which Op Nos. 1 & 2 asked not to take any legal action and they apologized for their mistake. Complainant approached the Ops to compensate upon which Op No. 1 lingered on the matter on one pretext or the other and flatly refused to compensate the complainant and threatened to do whatever act they want to do. Alleging deficiency in services on the part of Ops, the complaint was filed by the complainants before the District Forum seeking directions against Op Nos. 1 to 3 First Appeal No. 891 of 2016 5 to pay compensation to the tune of Rs. 16,00,000/-, for mental and physical harassment Rs. 2 Lacs and litigation expenses of Rs. 11,000/- or any other relief deemed fit.
3. Upon notice, Ops appeared and filed their written version. Dr. R.K. Kumra had died, therefore, he was given up. Op Nos. 1 & 2 in their written version took the preliminary objections that allegation in the complaint were not admitted; it was stated that the complainants are not the consumers under the Act; the dispute in question is not a consumer dispute; the complainants are barred to file this complaint; there is no deficiency in services on the part of Ops, therefore, complainants are not entitled to any relief; the complaint is a gross abuse of the process of law of Hon'ble Forum; the Consumer Fora cannot become a tool at the hands of unscrupulous persons, who filed a complaint merely with a view to extract money in the garb of compensation. Mere oral statement of the complainants that Ops were negligent is not sufficient to say so; the complaint is false, frivolous and vexatious to their knowledge, therefore, it be dismissed with special costs; complaint is bad for mis-joinder and non-joinder of parties as previous treating Doctor in question has not been made a party to the complaint; complaint requires lengthy and detailed evidence, which cannot be adjudicated in summary trial under this Act; the compensation claimed is too exaggerated. Complete treatment record has not been produced on the record. There is no post mortem of the patient in question to know the cause of death; there is no expert evidence and that Dr. R.K. Kumra treating First Appeal No. 891 of 2016 6 Doctor of the patient has died. On merits, it was submitted that on the basis of record taken from Dr. G.S. Arora as well as of Guru Nanak Dev Hospital of the patient in question has been concealed by the complainant with malafide intention. The record of Op No. 3 Hospital was taken into possession after the death of the patient. In the investigation by the Police, she was having fever for the last 5 days, vomiting of 2 days and itching all over body. She had sore throat. After that she was admitted in Guru Nanak Dev Hospital but no record of that hospital was produced. At the time of admission in Op Hopsital, she was an old case of Disseminated Lupus Erythematous (D.L.E.) and was taking steroid in the form of pulse therapy. She was admitted in Guru Nanak Dev Hospital and after that she developed itching of the body. On admission, her diagnose was D.L.E. with PUO with Acute Gastritis with dehydration. She was restless. As per the choice given by Consultant S. Narpinder Singh, Attendant/Guardian of the patient, the patient was taken under consultation of Dr. R.K. Kumra, who was a Senior Medical Specialist (now deceased) and immediate treatment was started and vitals of the patient were maintained. The record produced at the time of admission was investigation report according to it HB was 9.7 gm, TLC 4000/cmn, DLC 72, 20, 3, 0, 1, Malarial Parastite-Negative, Platelet Count 1.72 Lac/cmn, Blood Urea 28, S. Creatine 1.0 mg, S. Sodium 138.3 m eq/L, S. Pottasium 3.85 Eq./L, S. Billirubin 0.80 mg, SGOT 395 unit, SGPT 237 unit, Urine Alb.+, Widal Negative, Dengu Antigen+ve, Antibody 1gM- Non Reactive, IgG-Reactive. The original reports First Appeal No. 891 of 2016 7 were returned to the patient/attendant after making note of the same in patient treatment record. No assurance was given to the attendants as alleged in the complaint. Vital of the patient were being monitored by medical officers as per the directions of Late Dr. R.K. Kumra as well as other Consultants. Op No. 1 Dr. Kamal Preet Kaur was working only as Medical Officer in the hospital and was giving treatment to the patient during the duty hours as per the orders of Dr. R.K. Kumra. The patient was admitted in the hospital for management of multiple medical problems with various compromised conditions in the morning of 29.10.2009, despite proper treatment, the condition of the patient deteriorated, therefore, in the early morning visit of Dr. R.K. Kumra advising Ultra Sound examination of whole abdomen of the patient. Even visit of Dr. Gurpreet Kaur, Gynaecologist was also done early morning for patient of per vaginum bleeding. After properly monitoring the patient and as per the report, the patient was suffering from Hollow Viscus Perforation, after reviewing the same, Dr. R.K. Kumra asked for consultation of Dr. B.S. Sidhu, which was immediately done, who advised X-ray abdomen but attendants of the patient showed their wish to shift the patient to Fortis Escorts Hospital and after that the patient was shifted to that hospital. The Ultrasound of the patient was done as and when the patient was made stable to be shifted to the scanning room. It was denied that treatment given by Op No. 1 resulted to deterioration of the condition of the patient. It was denied that there was any negligence on the part of Op Nos. 1 & 2 to give treatment to the First Appeal No. 891 of 2016 8 patient, therefore, there was no occasion for Ops or Dr. Kumra to apologize from the complainants. However, on the basis of treatment given to the patient, the Police had taken the record of the treatment of the patient from the Hospital and the Police after thorough investigation did not initiate any action against the Ops. The allegations leveled in the complaint are incorrect, therefore, the Ops are not liable to pay any compensation to the complainant. Complaint is without merit, it be dismissed.
4. Op No. 3 submitted their reply through its Director taking preliminary objections that the complainant is not a consumer as defined under the Act qua Op No. 3; complaint is not maintainable either on facts because no allegations have been leveled in the complaint against this Op; the complaint is a gross abuse of process of Forum, he has not approached the Forum with clean hands because various material points have concealed and distorted version has been brought to harass Op No. 3 as the material facts relating the medical condition of the patient were concealed; there is no evidence of any negligence or deficiency in services on the part of this Op; the Consumer Forum cannot become a tool in the hands of unscrupulous persons, who filed the complaint to extract money in the garb of compensation; the complaint is false, frivolous and vexatious to the knowledge of the complainant, therefore, it is liable to be dismissed under Section 26 of the Act; the complaint is bad for mis-joinder of parties because Op No. 3 was unnecessarily made a party to the complaint; complete treatment record was not produced, therefore, First Appeal No. 891 of 2016 9 this Op deserves right to rebut the allegations or documents, if any, produced at subsequent period; the allegations in the complaint required full fledged trial, which cannot be adjudicated in the summary procedure, therefore, the complaint be referred to the Civil Court; Op No. 3 has a professional indemnity policy from United India Insurance Co. Ltd., which is valid and effective on the date of test performed by the Op. Insurance Company has not been informed nor requested to be made a necessary party as there is no allegations against this Op. In preliminary submissions, the patient Tajinder Kaur was referred to this Op by Op Nos. 1 & 2. At that time Mr. H.P. Singh and Dr. S.S. Mahi told the complainants that they have delayed in admitting their daughter in the hospital as the dengu is in the last stage and blood platelets have become lower than 18000. The doctors immediately advised to provide the blood platelets and 2-3 times platelets were provided to the patient but there was no change in the health of the daughter of the complainants and she died on 30.10.2009 at about 9/9.30 a.m. Originally patient Tajinder Kaur 27 years old female was a case of PUT interrogation dengu and she was admitted in emergency on 29.10.2009 at 4.04 p.m. at EHSSIL, Amritsar with complaint of high grade fever with abdominal distension, with breathlessness. She was transfused 2 units of SDPC and 4 units of RDPCs. In the early morning of 30.10.2009, she was in sudden fall in saturation associated with hypotension and bradycardia. She was incubated and put on ventilator immediately. She developed VT and CPR started and medicines First Appeal No. 891 of 2016 10 were given but despite of this, she could not be revived and was declared dead on 30.10.2009. Therefore, the facts speak itself that there was no negligence or deficiency in services on the part of this Op. In parawise reply against para Nos. 1 to 8, it was stated that these does not call for any comments from this Op as not pertinent to it. The preliminary objections stated above with regard to the treatment were reiterated. It was again reiterated that there was no negligence or deficiency in service on the part of this Op. Complaint is without merit, it be dismissed.
5. Op No. 4 - The New India Assurance Co. Ltd. filed the written reply taking the preliminary objections that there is no privity of contract between the complainant with this Op; this Op has been impleaded at the instance of Op No. 1 on the ground that he obtained professional indemnity doctor's policy from this Op. No such original policy alongwith terms and conditions have been placed on the record file nor on the court file nor supplied to this Op inspite of request. Even otherwise the Forum cannot fix any direct liability qua this Op as the jurisdiction of the Forum is to determine the liability of Op Nos. 1 to 3 and if any, such liability is fixed then award is to be satisfied against Op Nos. 1 to 3 and they could launch their claim as per terms and conditions of the policy; there is no medical negligence on the part of Op Nos. 1 to 3. On merits, preliminary objections taken were reiterated. It was again stated that till any liability of Op Nos. 1 to 3 fixed, no liability can be fixed against this Op and after fixing the liability, Op Nos. 1 to 3 can lodge their claim against this Op.
First Appeal No. 891 of 2016 11
6. Op No. 5 in its written reply took the preliminary objections that there is no privity of contract between the complainant and Op No. 5. Op No. 5 has been impleaded as a party at the instance of Op No. 2 on the ground that Parvati Devi Hospital had obtained professional indemnity policy from Op No. 5, however, there is no such policy supplied in the name of Op No. 2 with any terms and conditions, rather, only one page policy has been supplied in which insured has been mentioned as 'M/s Rai Bahadur Kishore Chand Mahveshwari Charitable Trust' and no linking document has been placed on the Court file that this insured is the other name of Op No. 2, therefore, no complaint against this Op is legally maintainable. Even otherwise, no direct liability can be fixed against this Op because the Forum is to determine the liability against Op No. 2 and if any such liability is fixed, the same is to be considered by the Competent Authority of Op No. 5 as per terms and conditions of the policy and liability is to be considered as per the terms and conditions of the policy. As per the written reply filed by Op Nos. 1 & 2, there was no medical negligence on their part, therefore, no complaint is maintainable. On merits, the averments in the preliminary objections were reiterated. It was again reiterated that no liability can be fixed directly with this Company, it can be fixed only after any liability is fixed against Op No. 2. Therefore, no merit in the complaint, it be dismissed.
7. Before the District Forum, the parties were allowed to lead their respective evidence.
First Appeal No. 891 of 2016 12
8. In support of his allegations, the complainant had tendered into evidence affidavit of complainant No. 2 Harsharan Kaur Ex. C1 and documents Ex. C2 to C9. On the other hand, Op Nos. 1 & 2 had tendered into evidence documents Exs. Op1,2/1 to Op1,2/6, affidavit of Sunil Handa Ex. Op1,2/7, affidavit of Dr. Kamalpreet Kaur Ex. Op1,2/8. Op No. 3 tendered affidavit of Dr. Inak Moudgin Ex. Op-3/1, medical file Ex. Op-3/2. Op No. 4 tendered affidavit of S.S. Gill, D.M. Ex. Op-4/1, terms and conditions Ex. Op-4/2. Op No. 5 tendered affidavit of Mr. Sanpreet Pahuja Ex. Op-5/1 and document Ex. Op-5/2.
9. After going through the allegations in the complaint, written version filed by the Op, evidence and documents brought on the record, the complaint filed by the complainant was allowed as referred above.
10. Aggrieved with the order passed by the learned District Forum, the appellant/Op No. 2 has filed the present appeal.
11. We have heard the learned counsel for the appellant, learned counsel for respondent Nos. 1 & 2, none appeared on behalf of respondent No. 3 and learned counsel for respondent No. 4 and service of respondent Nos. 5 & 6 dispensed with.
12. It was argued by the counsel for the appellant that the District Forum has failed to appreciate the evidence on the record because the treatment record of Tajinder Kaur in Guru Nanak Dev Hospital was not produced. Even it was not produced in the complaint before the District Forum. In fact the patient was old case of 'disseminated lupes erythematosus (DLE)' and was taking First Appeal No. 891 of 2016 13 steroid in the form of pulse therapy from a skin specialist. She had itching marks over her abdomen and legs. Only investigation report was produced, which reads as under:-
Hb 9.7 gm, TLC 4000/cmn, DLC 70,20,3,0,1, Malarial Parasite-Negative, Platelet Count 1.72 Lac/cmn, Blood Urea 28, S. Creatine 1.0 mg, S. Sodium 138.3 m eq/L, S. Pottasium 3.85 Eq./L, S. Billirubin 0.80 mg, SGOT 395 unit, SGPT 237 unit, Urine Alb.+, Widal Negative, Dengu Antigen +ve, Antibody IgM- Non Reactive, IgG-Reactive.
Therefore, the District Forum has failed to appreciate that the patient was diagnosed as DLE at the time of admission and was admitted under the care and consideration of Dr. R.K. Kumra (now deceased), who was a renowned Senior Medical Specialist and the patient was admitted in the hospital for management of multiple medical conditions and during the course of First Appeal No. 891 of 2016 14 hospitalization, vitals of the patient were being monitored. The patient was admitted on 28.10.2009 and was discharged on 29.10.2009. In the morning of 29.10.2009, the condition of the patient deteriorated and Dr. R.K. Kumra advised ultrasound examination of the whole abdomen. In the meantime, Dr. Gurpreet Kaur, Gynecologist was also called for on account of vaginal bleeding to the patient and as per the ultrasound done at 1.15 p.m., it was a case of 'Hollow Viscus Perforation' and after reviewing the case with Dr. B.S. Sidhu, Senior Surgical Specialist, X-ray of abdomen was advised but the attendants of the patient showed their desire to shift the patient to Fortis Escorts Hospital and after explaining the condition of the patient and consequences of trauma, the patient was referred to Fortis Escort Hospital, therefore, there was no sufficient time with this Op to give the treatment and when the treatment was to be given, the attendants of the patient got it discharged. Then the report of the Medical Board has been selectively read by the District Forum. It was a suspected case of dengu. On 26.10.2009, the platelet counts of the patient was 1,72,000 and on 28.10.2009 it reduced to 1,13,000, therefore, the platelet counts with Op was not so below that it required blood transfusion and the platelets might have decreased due to vaginal bleeding. Therefore, there is no justification to award the compensation of Rs. 10,00,000/- against this Op.
13. Whereas counsel for respondents No. 1 & 2 stated that when the patient was admitted with appellant/Op No. 2 there was First Appeal No. 891 of 2016 15 report that on 26.10.2009, platelet counts of the patient was 1,72,000 and on 28.10.2009 it reduced to 1,13,000 and that the investigation report suggest so. It is clear from 'Dengu Flavi Virus Antibodies' Ex. C-5, which reads as under:-
Dengu Flavi Virus (IgM) : Non Reactive
Dengu Flavi Virus (IgM) : Reactive
Dengue NSI Antigen : Reactive
According to this report, dengu flavi virus and dengu NSI antigen was reactive/responsive i.e. positive, therefore, once they had checked the platelets count on 28.10.2009 and from previous record it had decreased and otherwise also, the platelets count 1,13,000 is on the lower side, therefore, from time to time they should have checked the platelet counts and as and when it had come down, then blood transfusion should have been done as was done in Escort Fortis Hospital but at that time the platelet counts had gone too down. In case platelet count should have been checked at appropriate stage, perhaps the life of the young lady could have been saved. No doubt that in case there was vaginal bleeding, the CT Scan/X-ray was important but at the same time, it was the duty of Op No. 2 to check for the other vitals i.e. platelet counts and on account of this fact the condition of the patient became serious and ultimately leading to her death. In this case, Medical Board was constituted and they concluded their findings to the following effect:-
".....Since the patient was complaining the bleeding per vagina & her condition was deteriorating since First Appeal No. 891 of 2016 16 morning on 29.10.2009 & required fresh platelet count investigation, Elisa test/ PCR test for Dengu Fever should have been carried out at the earliest & if the time had permitted the patient should have been started blood transfusion/ platelet infusion in time....."
The Ops have also failed to go for Elisa Test/PCR test, therefore, it is on account of their negligence, which has caused the death of the patient. Therefore, the order passed by the District Forum is justified, it be affirmed.
14. We have considered the contentions as raised by the counsel for the parties.
15. The patient Tajinder Kaur was admitted with Op No. 2 under the supervision and consultation of Dr. R.K. Kumra, who has since died. At the time of admission, she was having ailment, fever of 5 days, vomiting 2 days and etching all over the body and earlier she had taken the treatment from Dr. G.S. Arora and after that she was taken to Guru Nanak Dev Hospital. No doubt that she was an old patient of DLE but as per the report of the experts, the cause of her death is on account of dengu, therefore, even if no record of Dr. G.S. Arora or Guru Nanak Dev Hospital was not brought to Op No. 2, it was their duty to go for investigation, otherwise, Dengu Flavi Virus Antibodies test dated 27.10.2009 was conducted from Tuli's Ashoka Clinical Lab and ECG Clinic Ex. C-5 is on the record, which was indicating dengu positive. Otherwise also, it has been admitted by Op No. 2 that on 26.10.2009 platelet counts of the patient was 1,72,000/- and on First Appeal No. 891 of 2016 17 28.10.2009, it was 1,13,000, therefore, it was decreasing. Even otherwise, it was on the lower side, therefore, the Doctors of Op No. 2 should be at caution to check the platelet counts time and again but it was not checked. Once it was suspected case of dengu then they would have gone for Elisa test/ PCR test but it was no preferred by them. No doubt that during treatment the patient had vagina bleeding, for that CT Scan/X-ray may be important but they could not ignore another important factor that the patient was a suspected case of dengu according to them and they should have taken care of platelet counts of the patient and also to go for Elisa test/PCR test, which they ignored.
16. After the death of the patient, the matter was referred to the Medical Board. Vide order dated 11.1.2010, the learned District Forum had referred the matter to CMO, Civil Hospital, Amritsar for seeking opinion as to whether Ops were prima-facie negligent while treating the patient and their report was conveyed vide letter No. CHAS/10/608 dated 3.6.2010 in which it was observed as under:-
"3. As per records, platelet count investigation was done thrice at various hospitals - (1) 1,04,000/cumm on 27.10.09 at GND Hospital, Amritsar (2) 1,19,000/cumm on 28.10.09 at Smt. Parvati Devi Hospital, Ranjit Avenue, Asr. (3) 18,000/cumm at Fortis Escorts Hospital, Amritsar on 29.10.09. First Appeal No. 891 of 2016 18 But as per Board Member's opinion Fresh Platelet count investigation should have been carried out when Patient started Bleeding Per Vagina.
4. There is no direct association of DLE with Dengu Fever/P.U.O. but as Dengu Fever / P.U.O. can occur in any person, it can also occur in any previously diseased patient."
According to this report, the platelet counts investigation should have been carried out when patient started bleeding per vagina, which the Op did not bother, ultimately, leading to critical condition of the patient resulting her death. Therefore, we are of the opinion that the findings recorded by the District Forum are correct that there is negligence on the part of Ops to provide adequate treatment at an appropriate time. The medical negligence is to be seen from the angle, what opposite party was required to do so and in case they have not done so then they are negligent. It has been so held in "Bolam v Friern Hospital Management Committee", (1957) 2 ALL ELR 118, which was accepted by the Hon'ble Supreme Court as laying down correct tests in cases of medical negligence, in which it was observed that negligence in law means failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do. It was further held that Doctor is not guilty of negligence if he acted in accordance with practice accepted as proper by responsible body of medical man skill in a particular art." Further in the judgment of First Appeal No. 891 of 2016 19 "Kusum Sharma and others versus Batra Hospital & Medical Research Centre & Others", 2010(3) SCC 480 the Hon'ble Supreme Court issued the guidelines that the following principles must be kept in mind while deciding whether the medical professional is guilty of medical negligence:-
"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 is 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 First Appeal No. 891 of 2016 20 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 he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances 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.First Appeal No. 891 of 2016 21
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 particularly private 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 patients have to be paramount for the medical professionals."
Whereas the counsel for the appellant has referred to the judgment 2002 (3) ALT 49 "Indira Kartha & Ors. Versus Dr. Mathew Samuel Kalarickal & Anr." In that case, angioplasty was advised and stent implantation technique was used resulting in death of the patient. It was done with the consent of the patient. No documentary/expert report was produced in support of the allegation and accordingly, the complaint was dismissed. Basically, each case has to be decided on its facts and observation of one case cannot be adopted in another case because facts of the each case are different from each other. The judgment of "Bolam v Friern Hospital Management Committee"
and "Kusum Sharma and others versus Batra Hospital & Medical Research Centre & Others" (supra) duly covers the case of the complainants.First Appeal No. 891 of 2016 22
17. Another point was raised that quantum is on the higher side. The young daughter of the complainant has died on account of medical negligence on the part of Ops. The compensation awarded is just Rs. 10 Lacs, which in our opinion seems to be quite genuine.
18. No other point was argued.
19. Sequel to the above, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
20. Appellant No. 01 had deposited an amount of Rs. 25,000/- and Rs. 5,00,000/- with this Commission in the appeal. These amounts along with interest accrued thereon, if any, shall be remitted by the registry to the concerned District Forum, after the expiry of 90 days, from the despatch of the certified copy of the order to the parties; subject to stay, if any, by the higher Fora/Court; for the release of the above amount and the District Forum may pass the appropriate order in this regard.
21. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
22. The counsel for the parties/parties are directed to collect free certified copy of the order from the office of the Commission within a period of 15 days from the date of pronouncement.
(GURCHARAN SINGH SARAN)
PRESIDING JUDICIAL MEMBER
February 09, 2018. (RAJINDER KUMAR GOYAL)
as MEMBER
First Appeal No. 891 of 2016 23