State Consumer Disputes Redressal Commission
Des Raj Singla vs 1. Dayanand Medical College And ... on 4 June, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH. Consumer Complaint No.41 of 2007 Date of institution: 25.10.2007 Date of decision : 04.06.2010 1. Des Raj Singla husband of Saroj Singla (deceased); 2. Raman Deep Singla (son); 3. Gagan Deep Singla (son); All residents of 1-S, Sant Nagar, Patiala. ..Complainants Versus 1. Dayanand Medical College and Hospital, Ludhiana through its Director. 2. Dr.Baldev Singh Aulakh, Head Department of Urology, Dayanand Medical College and Hospital, Ludhiana. 3. Dr.Sandeep Puri; 4. Dr.Arvind Goyal; Both c/o Dayanand Medical College and Hospital, Ludhiana. 5. United India Insurance Company Limited, Savitri Complex No.-I, First Floor, G.T.Road, Ludhiana. ..Respondents Consumer Complaint under the Consumer Protection Act, 1986. Before:- Honble Mr.Justice S.N.Aggarwal, President Mrs.Amarpreet Sharma, Member
Present:-
For the complainant : Sh.Amit Jaiswal, Advocate For respondents No.1 to 4 : Sh.D.B.S.Sobti, Advocate For respondent No.5 : Sh.Munish Goel, Advocate JUSTICE S.N.AGGARWAL, PRESIDENT The complaint originally was filed by Saroj Singla (in short the patient). She died during the pendency of the complaint and her legal heirs namely her husband Des Raj Singla, her sons Raman Deep Singla and Gagan Deep Singla were impleaded as complainants.
2. The patient had alleged that she was admitted in the Hero Heart Branch of the Dayanand Medical College and Hospital, Ludhiana (in short the DMC) respondent No.1 on 18.3.2007 for medical treatment of infection in urinary tract and for treatment of pus which had collected in her Renal Pelvis. She was operated on 25/26.03.2007 and the right PCNL was done. She was shifted to the DMC on 27.03.2007. The nephrostomy drain was also put in her kidney which had its opening outside the body at the right lower back. The patient had made the payment of Rs.65000/- in Hero Heart branch of the DMC.
3. It was further pleaded that after the admission in the DMC, her platelet count had gone down. She was given 2-3 bottles of platelets concentrate (PC) by way of transfusion in her blood for making up the deficiency in platelet count. However, her condition remained critical for many days. After her condition became stable to some extent, she was discharged on 21.04.2007 with the nephrostomy drain still in the body of the patient.
4. It was further pleaded that the problem of platelet count of the patient continued even after she was discharged. Therefore, she had visited the DMC many times. Weekly visits were also made. She was also referred to PGI, Chandigarh.
The patient spent about Rs.3 lakhs on transportation and in transfusion alone but the treatment was still continuing. Before her admission in the DMC, the patient had no problem of declining platelets count which she developed either because of improper handling of her surgery/operation or due to lack of required post operative precaution/care.
5. It was further pleaded that on 12.6.2007, the patient was taken to the DMC for removal of nephrostomy drain where she was attended by Dr.Arvind Goyal respondent No.4. He removed the Nephrostomy drain and planted the stent. The patient was discharged on the same day and she went back home in Patiala.
After reaching her home, the patient felt severe pain in the lower back on right hand side and her husband immediately contacted the doctors of the DMC. He was told that the pain might be due to operation and the patient was advised to take nimesulide tablet. The patient complied with it but the pain recurred after 4-5 hours only. The patient continued taking nimesulide tablet. She was also taken to the DMC twice but the problem of the patient was not taken seriously by the doctors of the DMC who had medically treated her.
6. It was further pleaded that even the problem of platelet count became worse and the fresh bottles of platelets had to be infused in the blood of the patient. This process had to be continued fortnightly or even weekly and the patient had to spend lakhs of rupees on it. The patient had also burning sensation while passing the urine. She had pain in the right lower back. She had become totally bed ridden. She was taken to Amar Hospital on 27.6.2007 and on the advice of the doctor, she got done the X-ray and ultrasound from Alpha Radiological Hospital behind Rajindra Hospital, Patiala.
7. It was also pleaded that the patient was shocked to see from the X-ray film that the small rubber/synthetic tube was in her body. This was the piece which was left in the body due to the negligence of the doctors in the DMC. It was left in her body either at the time when PCNL was done or at the time when the nephrostomy drain was removed and the stenting was done by respondent No.3 on 12.6.2007. The doctors in Amar Hospital, Patiala also looked at the X-ray film and informed the patient that the doctors of the DMC have committed medical negligence. This piece of rubber/synthetic tube could be taken out only by open surgery. The doctors in Amar Hospital refused to go ahead and advised the patient to proceed to the DMC as the presence of the tube in the body could give rise to many complications and could even pose a threat to her life.
8. It was further pleaded that the husband and the son of the patient took her to the DMC on the same day i.e. on 27.06.2007 where she was attended by Dr.Arvind Goyal respondent No.4. He also saw the X-ray film. Respondent No.4 tried to create a new file to cover up the issue. The husband and sons of the patient brought it to the notice of Dr.B.S.Aulakh respondent No.2, Head of the Department, Urology Department in the DMC who took over the case himself. The patient was admitted in the DMC on 27.6.2007 with the piece of PCN.
9. It was further pleaded that the piece of tube as well as the stent were removed on 5.7.2007 and again the PCNL was done. The patient did not know how the piece of tube was removed from her body either by open surgery or by any other procedure. This time the operation had taken about 3 hours which took double of the time when the first PCNL was done. No explanation was given as to why second time PCNL was done which only indicated that the initial PCNL was not properly done. The problem of platelet count worsened and many bottles of platelet were transfused in her body. She was discharged on 10.07.2007. The patient again visited the DMC for follow up treatment and finally nephrostomy pipe/PCNL was removed from her body on 29.07.2007 by Dr.Aulakh respondent No.2 but the patient never recovered after the second operation.
10. It was further pleaded that the patient had also consulted the Local doctors in Patiala and also remained under medical treatment of Sadbhavna Hospital. She also took medical treatment from PGI and she had to spend about Rs.50,000/- per week. Alleging medical negligence on the part of the respondents, the patient filed a complaint against them for Rs.10 lakhs (towards costs of treatment, medicines, transportation etc.), Rs.5 lakhs for physical pain and mental agony, Rs.10 lakhs for loss of future income and Rs.10 lakhs for future medical expenses. Interest and costs of litigation were also prayed.
11. Respondents No.1 to 4 filed the joint written statement. It was admitted that the patient aged about 58 years was admitted in Hero Heart Branch of the DMC in the emergency ward on 17.03.2007. She had come with acute pain in the abdomen. She was the old case of hypertension, diabetes and CVA (in lay language called brain stroke). On clinical examination, it was found that the patient was drowsy. She had altered sensorium and was in shock. She had low blood pressure 70 by pulse. She was having cold extremities and dry tongue. She was also having tachycardia as her pulse rate was 160 per minute.
12. The patient was subjected to the following investigation : -
(i) Routine Urine and Culture
(ii) Electrolytes/liver function test
(iii) Haemogram/counts/Bld group.
(iv) Renal Function Test, Arterial Blood gas.
(v) Ultrasound Abdomen/ECHO.
(vi) Serum amylase/lipase
(vii) Coaglution Profile.
13. On the basis of clinical examination and on the basis of the past history, the patient was diagnosed to be : (i) Septicaemia shock (ii) acute renal failure with severe metabolic acidosis. Seeing the overall condition of the patient, she was provisionally diagnosed to have pancreatitis with peritonitis. The possibility of pyonephrosis/emphysematous pyelonephritis was also kept in mind subject to awaiting the result of the investigation. The patient was immediately put on life saving treatment which included (i) lonotropic drugs (Nor epinerphrine and dopamine infusion) and Effcorlin
(ii) Soda Bicarbonate 4 ampules (iii) Inj Tazobactun 2 grams, Inj Augment in 2 gms (iv) Injection Claxane, (v) Injection Lasix and (vi) Injection Deriphyline.
14. It was further pleaded that on arrival of the investigation report, these were co-related with the clinical findings. The patient was finally diagnosed to be a case of pyonephrosis (pus in the kidney) right sided with chronic renal failure and septicaemia. The patient was having acute life threatening problem and thus, the entire treatment was focused on saving the life of the patient by giving her the life saving treatment. The same was recorded in the bed head ticket. The patient remained as indoor patient in Hero Heart Branch of the DMC. She was examined, treated and seen by the doctors of the respondent hospital relating to all specialities which were related to the ailment of the patient.
15. It was also pleaded that after seeing the sensitivity of the drug through blood culture examination and urine culture examination, antibiotics as per the sensitivity of the bacteria/growth were added and the patient was maintained on life saving drugs and all over blood spectrum antibiotics to overcome the overwhelming infection were also continued. This treatment gave results. Huge collection of pus seen in the right kidney was also drained by performing ultrasound guided nephrostomy under local Anaesthesia on 21.3.2007 in the Radiology department of the DMC by Urologist. It was safe, feasible and efficient procedure.
16. It was further pleaded that the report of the blood platelets showed that the patient was having 1,01,000 platelets at the initial stage. On the second date when the sample of blood was sent, the count of platelet count had come down to 73000. To bring up the count of platelets, two units of blood were transfused in the patient. The decrease in the count of platelet was on account of Septicaemia suffered by the patient. All efforts were being made to control the Septicaemia by putting the patient on broad spectrum antibiotics and also by draining out the infected material (pus) from right kidney. The platelets counts were also being supplemented by means of blood transfusion. Since the patient was having severe infection at the time of her arrival in the DMC, her TLC count was 26570 which arose to 37100 on the second day of her admission.
17. It was further pleaded that the TLC count started coming down when the infection was controlled with drainage of pus from kidney (PCN) and the appropriate drugs/antibiotics were given to the patient. With these efforts, the vitals of the patient were maintained. It was planned to do Nephrostogram on the patient to see the blockage. Nephrostogram showed the complete blockage at right Uretero Vesical junction with no spill in the bladder. In order to take care of it, the patient was taken up to surgery on 27.3.2007 by shifting her to the DMC. The patient was a high risk patient. Therefore, high risk consent for the surgical procedures inclusive of Anaesthesia and post operative ventilator care were taken and all the risks involved in the entire procedure were fully explained to the patient and her attendants. The surgical intervention was done to clear the said blockage and the procedure done was right sided ureteroscopy. It was found that the blockage was on account of thick pus at uretero-vesical junction and lower ureter. The blockage was cleared and uretric catheter was placed to drain pus. The surgery was well managed and the patient was not required to be put on ventilator post operative. The condition of the patient had improved but the platelet count remained low i.e. within the range of 12000 to 70000 from 27.03.2007 to 21.04.2007 when she was discharged on her request.
18. It was further pleaded that to sort out various medical problems of the patient, consultation was taken from different specialists namely Dr.Naveen Mittal, Consultant in the Endocrinology, Dr.Sandeep Puri, Professor and Head of Medicine Department. The patient had consistent decline in the platelet count and Bone Marrow Aspiration showed Erythroid prominence with normoblastic maturation and meguloblastoid change. Accordingly, Dr.D.S.Sandhu Consultant (Oncologist) was consulted who after examination ordered the bone marrow biopsy of the patient. On his advice, the patient was put on steroid besides other treatment. The biopsy findings were megakaryocytic prominence and erythroid prominence. The patient was well managed. The patient continued to have low count of platelets and indwelling per cutaneous nephrosotomy (PCN). She was discharged on 21.4.2007. The discharge card was given to her indicting the entire procedure and the treatment given to the patient during her stay in the respondent hospital. It was denied if the respondents had refused to treat the patient. Rather she was discharged at her own request which was specifically mentioned in the bed head ticket of the patient on 21.4.2007.
19. It was further pleaded that the patient visited the respondent hospital thereafter on 30.4.2007 on OPD basis. She consulted respondent No.3 (Dr.Sandeep Puri) as well as respondent No.4 (Dr.Arvind Goyal) on two separate OPD cards as both these doctors belonged to different specialization. Respondent No.3 found that the patient was suffering from high blood pressure of 160/70 and advised the patient to take insuline injections and anti hypertension medicines twice daily and other drugs for controlling anxiety, pain in the abdomen, acidity and steroids for the control of main disorder. Respondent No.4 after examination found that the TLC of the patient was 23000 (normal count being less than 11000) and platelets were 23000 which manually came out to be 36000. The patient was advised to continue with nephrostomy drainage i.e. PCN which was intact. The patient was also advised to carry on with the medicines/treatment.
20. It was further pleaded that thereafter, the patient came to the respondent hospital on 29.5.2007 on OPD basis. She brought her blood report dated 11.5.2007 which suggested marginal deficiency in platelets i.e. 1,24,000 but the second report dated 27.5.2007 suggested drop of platelets count which were 56000. She was suggested repeated platelets on 29.5.2007 in the hospital and the report suggested that the platelets had further dropped to only 22000. Respondent No.3 suggested continuance of steroids to enhance the platelets count which had become deficient due to infection. The presence of thick echoes (pus) was also found during the ultrasound that was performed in the respondent hospital on that day.
21. It was further pleaded that the patient again visited the respondent hospital on 6.6.2007 on OPD basis. She was advised PCN change by respondent No.4 (Dr.Arvind Goyal) as the life of PCN tube was about 3 months. The procedure of PCN was done on the patient on 21.3.2007 and for this reason, the change was advised by respondent No.4. All necessary blood tests were done which showed that the TLC was almost normal i.e. 12750 and the platelets count was also 72000 which showed that the patient was recovering and she was fit for PCN change.
22. It was further pleaded that the patient, however, did not go by the advice given by respondent No.4. She left the respondent hospital without getting the PCN change.
23. It was further pleaded that the patient again visited the respondent hospital on 12.6.2007. Necessary blood tests were done. The platelets count was found to be 94000 and the patient was recovering. Respondent No.4 suggested stenting of right ureter which would facilitate drainage of pus from the kidney to the bladder which would finally get discharged through urine. This was done to reduce the dependence of PCN and its removal as despite repeated request of PCN change, the patient had refused to get the same changed. Stenting was done under the Local Anaesthesia. The patient was discharged with PCN intact and functioning. The entire record of the procedure done was proved as Ex.R4. The PCN was retained and was not changed on the request of the patient. Respondent No.4 had categorically explained to the patient that the dependence on PCN would gradually decrease and it would be removed on her subsequent visit if the patient showed improvement. The procedure of removal of PCN was never conducted in the respondent hospital or by respondent No.4. The allegation of removal of PCN by respondent No.4 in the respondent hospital was specifically and repeatedly denied.
24. It was further pleaded that although the removal of PCN by respondent No.4 in the respondent hospital was not admitted but it was still pleaded that sometime the removal of PCN pipe, fracture of pipe does take place owing to texture of the pipe which has small pores/holes on that end of the pipe which is inserted in the kidney to drain the pus. It could not be presumed as medical negligence.
25. It was further pleaded that thereafter, the patient visited the respondent hospital in the emergency unit on 27.6.2007. She had stated that she had got her PCN pipe removed. From the X-ray and ultrasound report, it was found that the rear proximal end which was inserted into the kidney for drainage had broken inside and the patient had come to the respondent hospital for getting the same removed. Respondent No.4 checked the X-ray. As per the policy of the respondent hospital, a new file is made on every visit of the patient on subsequent/indoor admission. Respondent No.4 works in the unit of Urology and Transplant headed by Dr.B.S.Aulakh respondent No.2. The patient was admitted under Dr.B.S.Aulakh on 27.6.2007. Necessary tests were conducted. It was found that the patient was not fit for surgery because she had ITP (Idopathic Thrombocytopenic Purpura) and uncontrolled diabetic status. The ultrasound also revealed hypoechoic areas of varying sizes (2.5 3 cms.) altered in renal parenchyma indicating pus and infection in the kidney including DJ stent and retained broken nephrostomy tube piece. Utmost care was taken in the respondent hospital by respondents No.2 to 4 to stabilise the patient for making her fit for the procedure. The surgery was deferred till the patient had become stable and the medical treatment was started.
26. The patient showed the improvement and the surgery was conducted on 5.7.2007. The procedure done was removal of the stent and ureteroscopy to remove the retained piece of PCN. At the same time, another procedure called Percutoneous Nephroscopy was conducted to remove the thick pus flakes and the dead necrotic tissue from the kidney. The kidney was washed and nephrostomy tube was placed. The surgery took longer time because the PCN was done on 21.3.2007 under local anaesthesia and is an OPD procedure. The procedure on 5.7.2007 was done under general anaesthesia. Both these procedures are entirely different. This procedure was conducted by respondent No.2 with respondent No.4 and other members of the team. The platelet components were also transfused post-operatively in view of persisting decrease in platelets. She was discharged on 10.7.2007 with nephrostomy tube. Thereafter, the patient never visited the respondent hospital. The allegations made in the complaint against the respondent hospital and respondents No.2 to 4 were repeatedly denied as also the removal of PCN tube in the respondent hospital by respondent No.4. It is also denied if there was any medical negligence on the part of the respondent hospital or on the part of respondents No.2 to 4.
27. The respondents filed an application on which United India Insurance Company Limited was impleaded as respondent No.5 as the respondent hospital had taken the professional indemnity insurance policy from respondent No.5.
28. Respondent No.5 also filed the written statement. All the allegations made in the complaint were denied and dismissal of the complaint was prayed.
29. The patient filed her affidavit dated 23.10.2007. She also proved documents Ex.C1 to Ex.C11. On the other hand, the respondents filed the affidavit of Dr.Sandeep Puri respondent No.3 dated 21.10.2008, affidavit of Dr.Arvind Goyal respondent No.4 dated 21.10.2008 and the affidavit of Dr.B.S.Aulakh respondent No.2 dated 21.10.2008. They also placed on the file Annexures R1 to R8. The insurance policy was also placed on the file. Respondent No.5 also filed the affidavit of O.P.Kanave, Deputy Manager dated 17.10.2008.
30. The submission of the learned counsel for the complainants was that the complaint be accepted and the complainants be awarded adequate compensation for the medical negligence on the part of the respondents.
31. On the other hand, the submission of the learned counsel for the respondents was that there was no merit in the present complaint and the same be dismissed.
32. Submissions have been considered and the record of this complaint has been perused.
33. As stated above, during the pendency of the complaint, the patient died on 24.3.2009 and her death certificate was placed on the file. Her husband namely Des Raj Singla and her two sons namely Raman Deep Singla and Gagan Deep Singla were impleaded as complainants in her place. She was a resident of Patiala and she had gone to the respondent hospital at Ludhiana to be in safe hand.
34. The patient herself pleaded in the first paragraph of her complaint that she had gone to the respondent hospital on 18.3.2007 for treatment of infection in urinary tract and for the treatment of pus which had collected in the renal pelvis of the patient. It makes absolutely clear that the patient had not only infection within her body but there was also collection of pus in the kidney. The respondents have explained in the written statement that the patient was subjected to various medical tests to diagnose her disease and the condition of the patient was found to be critical. The medical treatment was started simultaneously.
35. The allegation of the patient was that her platelet count had come down when she was admitted in the respondent hospital. For that purpose, the learned counsel for the complainants made reference to the case summary and the discharge slip Ex.C1 wherein it was mentioned that the patient had developed Thrombocytopenia during the course of hospital stay. This discharge slip related to the period from 27.3.2007 when the patient was admitted in the DMC after her shifting from Hero Heart branch of the DMC till 21.4.2007 when she was discharged.
36. It was submitted that since the patient developed this problem in the hospital itself, therefore, it clearly proves the medical negligence on the part of the respondent hospital and respondents No.2 to 4.
37. This submission has no basis. The patient was in critical condition when she was admitted in the respondent hospital on 18.3.2007. She had already infection and pus in her body which led to decline in the platelet count when she was in the respondent hospital. It speaks about the period when the platelet count was down. It does not speak about the cause of down platelet count. It is the consequence of the medical problem which the patient had prior to her admission in the hospital namely infection and it has to be looked up in the context of the history of her illness which is given in the discharge slip Ex.C1 as under : -
History of present illness :
Known case of
-
Type 2 Diabetes Mellitus x 13-14 yrs
-
Hypertension x 12 yrs
-
Old CVA 2005 with Now admitted with UTI, sepsis, sephaemic shock. On evaluation found to have right pyenephrosis Right PCN done, drain placed in situ Right URS, thick organised pus discharge when ureteric orifice removed Left RGP done showed normal PCS Patient developed thrombocytopenia during the course of hospital stay.
Associated with C/O few episodes of black coloured stools, hematuria.
Shifted under Medical unit for further evaluation.
38. It cannot be attributed to the respondent hospital or to the doctors respondents No.2 to 4 till it is specifically proved.
Respondents No.1 to 4 had also specifically given the details of the investigation conducted by them and the treatment given by them in the hospital. It was specifically mentioned as under : -
HOSPITAL COURSE :
Patient a known case of type 2 Diabetes Mellitus, UTI, sepsis developed thrombocytopenia during hospital stay. A possibility of sepsis induced thrombocytopenia US immune included destruction kept. Bone marrow study indicated peripheral destruction of platelets with megakaryocytic prominence in BM. Patient managed with appropriate antibiotics, blood component therapy, other supportive treatment. Sepsis was controlled but no significant use in platelets counts. Patient empirically started on steroids keeping possibility of immune medicated process. Platelets counts showing or upward trend on serial monitoring. Patient general condition stable. Being discharged.
39. This document, therefore, does not prove medical negligence on their part.
40. The next submission of the learned counsel for the complainants was that the patient had come to the respondent hospital on 12.6.2007 when the PCNL was removed and stenting was done by respondent No.3(Dr.Sandeep Puri) (paragraph 8). However, at other place (paragraph 5), the patient has alleged that the PCNL was removed by Dr.Arvind Goyal respondent No.4 on 12.6.2007.
41. This fact was specifically denied by the respondents in the written statement filed by them.
42. Some pieces of tube were left in her body which were noticed when the patient had got conducted the X-ray on 27.6.2007 from Alpha Radiological hospital on the advice of the doctors of Amar Hospital, Patiala. They had advised the patient to get it removed from the respondent hospital, on which, she had visited the respondent hospital for removal of PCNL pieces.
43. It is not disputed by the respondents that the PCNL pieces were in the body of the respondents as on 27.6.2007 for which she was admitted in the respondent hospital. She was subjected to surgery on 5.7.2007 and was discharged on 10.7.2007. The case summary and the discharge slip was proved by the patient as Ex.C3 in which it is specifically mentioned that the patient had come to the respondent hospital with piece of PCN. She was admitted in the respondent hospital for removal of PCN pieces.
44. However, it was specifically denied if the PCNL was removed in the respondent hospital on 12.6.2007 either by respondent No.3 or respondent No.4. The respondents have proved the prescription slip of 6.6.2007 in which the PCN change was advised to the patient by respondent No.4 in the respondent hospital.
45. The respondents have taken the plea in the written reply that the life of the PCN was 3 months and for this reason, the change of PCN was advised as it was inserted on 21.3.2007 and 3 months were going to expire. The removal of PCN was not advised by respondent No.4 in the respondent hospital. It means, therefore, that if it had been removed by respondent No.4 in the respondent hospital on 12.6.2007 as alleged by the patient then respondent No.4 would have inserted another tube in compliance with the advice given to the patient on 6.6.2007. They would not have removed it altogether and it leads to the conclusion that the PCN was not removed by respondent No.4 in the respondent hospital on 12.6.2007 as alleged by the patient. If they had removed it, they would have inserted the alternative in its place.
46. So far as the treatment given to the patient on 12.6.2007 is concerned, the complainants have not placed on the file any document to show if it was removed by respondent No.4 in the respondent hospital on 12.6.2007. On the other hand, the respondents have placed on the file the OPD slip of 12.6.2007 as Ex.R4. It proves that in order to flow out the pus from the body of the patient, respondent No.4 had also done stenting on 12.6.2007. The OPD slip dated 12.6.2007 Ex.R4 does not indicate, at all, that the PCN was removed by respondent No.4 on that day in the respondent hospital. If it had been done that would have been mentioned in the discharge summary dated 12.6.2007 Ex.R4.
47. The patient herself has pleaded in the complaint that she had been going to other hospitals also. It was reflected in the X-ray report dated 27.6.2007 that the pieces of PCNL tube were found in her body but from where the patient got removed the PCNL between 12.6.2007 to 27.6.2007 it is not proved by her. Instead of feeling obliged to the respondent hospital and doctors respondents No.2 to 4, the complainants thought it fit to slam them with a complaint that they have done medical negligence while treating the patient. The respondent hospital and doctors respondents No.2 to 4 cannot be held negligent merely on presumption basis whereas the law is otherwise. Onus of proof of medical negligence is higher than the onus to prove deficiency in service in cases other than the medical negligence.
48. It was held by the Honble Supreme Court in the judgment reported as MALAY KUMAR GANGULY v. SUKUMAR MUKHERJEE (DR.) & ORS. III(2009) CPJ 17 (SC) as under:-
35. Charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error of judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis.
36. Even under the law of tort a medical practitioner can only be held liable in respect of an erroneous diagnosis if his error is so palpably wrong as to prove by itself that it was negligently arrived at or it was the product of absence of reasonable skill and care on his part regard being had to the ordinary level of skill in the profession. For fastening criminal liability very high degree of such negligence is required to be proved.
37. Death is the ultimate result of all serious ailments and the doctors are there to save the victims from such ailments. Experience and expertise of a doctor are utilized for the recovery.
But it is not expected that in case of all ailments the doctor can give guarantee of cure.
49. In this context, reference can be made to the recent judgment of the Honble Supreme Court reported as Martin F. Dsouza v. Mohd. Ishfaq, 2009 CTJ 352 (Supreme Court) (CP) in which the Honble Supreme Court was pleased to observe as under : -
47. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur.
No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
50. It was also held by the Honble Supreme Court in the aforesaid judgment as under:-
49.When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.
51. It was held by this Commission in the judgment dated 22.1.2008 passed in First Appeal No.1038 of 2000 Partap Singh v. Sahib Nursing Home & Surgical Centre and others that a doctor no doubt can play havoc with the life of another by medical negligence, but the doctor cannot be dubbed as negligent wherever the things go wrong because of Gods will or for other factors. Finding fault with the doctor without any evidence would not only defame the medical profession which is otherwise very noble but the society will also lose the compassion of the saviour i.e. of the doctor who is considered next to God.
52. The complaint deserves to be dismissed with heavy costs but since the complainants have lost the patient, therefore, we refrain from burdening the complainants with costs.
53. No merits. Dismissed.
54. The arguments in this complaint were heard on 01.06.2010 and the order was reserved. Now the order be communicated to the parties.
55. The complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL) PRESIDENT (MRS.AMARPREET SHARMA) MEMBER June 04 , 2010.
Paritosh