State Consumer Disputes Redressal Commission
Dr. B.R. Gupta vs Nitin Kumar Joshi on 20 February, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2669/2016 ( Date of Filing : 25 Oct 2016 ) (Arisen out of Order Dated 24/09/2016 in Case No. C/136/1997 of District Budaun) 1. Dr. B.R. Gupta Badaun ...........Appellant(s) Versus 1. Nitin Kumar Joshi Badaun ...........Respondent(s) First Appeal No. A/2798/2016 ( Date of Filing : 16 Nov 2016 ) (Arisen out of Order Dated 24/09/2016 in Case No. C/136/1997 of District Budaun) 1. Nitin Kumar Joshi Badaun Badaun ...........Appellant(s) Versus 1. Dr B R Gupta Badaun Badaun ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 20 Feb 2023 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Appeal No. 2669 of 2016 Dr. B.R. Gupta, MBBS, MS (Ortho), Haddi Avam Jod Visheshagya, Mal Godam Road, Near Indira Chowk, Badaun. ...Appellant. Versus Nitin Kumar Joshi s/o Anil Kumar Joshi, R/o Alafkhan Sarai, Nagar, Badaun. ...Respondent. Appeal No. 2798 of 2016 Nitin Kumar Joshi s/o Anil Kumar Joshi, R/o Mohalla Alafkhan Sarai, Police Station. Kotwali, District, Badaun. ...Appellant. Versus Dr. B.R. Gupta, MBBS, MS (Ortho), Mal I Godam Road, Near Indira Chowk, Badaun. ...Respondent. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Vikas Saxena, Member. Sri Nand Kumar, Advocate for appellant/Dr. B.R. Gupta. Sri Rajeev Singh, Advocate for respondent/complainant. Date 9.3.2023 JUDGMENT
Per Sri Rajendra Singh, Member-The above appeals are connected with one another arising out from one judgment, hence these are being decided together.
The facts of the appeal no.2669 of 2016 in brief are that, that the impugned judgment dated 24.9.2016 passed by the ld. District Forum, Badaun is illegal, erroneous and entirely on the wrong facts. The ld. Forum failed to appreciate the facts and law pleaded by the appellant and it only considered the pleadings of the complainant. The ld. forum did not take cognizance of the fact submitted by the appellant. The ld.
(2)forum passed the impugned judgment on 24.9.2016 which is as follow:
"परिवादी का परिवाद विपक्षी के विरूध् स्वीकार किया जाता है। विपक्षी का निर्देशित किया जाता है कि वह परिवउी द्वारा कराए इलाज हेतु मु0 50,000/- परिवादी को अदा करे तथा इसपर निर्णय की तिथि से 9 प्रतिशत ब्याज भी ताअदायगी अदा करे। विपक्षी परिवादी के हाथ खराब होने के एवज में उसे मु 1,50,000/- रू0 क्षतिपूर्ति के रूप में अदा करें एंव मानसिक व शारीरिक क्षति हेतु विपक्षी परिवादी को मु0 25,000/- रू0 अदा करे। आदेश का अनुपालन एक माह में किया जावे।"
The appellant/Dr. B.R. Gupta was working as Primary Health Centyre, Damaura, District Shahjahanpur of Pradeshik Chikitsa Swasth Avam Pariwar Kalyan Vibhag, Uttar Pradesh, a Government Hospital so the complainant case filed against him was not maintainable before a consumer court. The complainant is not a consumer of the services of the appellant a Government Doctor as per the Consumer Protection Act, 1986. The appellant/opposite party did not receive any money as consideration for services given by him to the complainant. No evidence had been adduced by the respondent/complainant regarding receiving of Rs.750.00 by the appellant/opposite party. The appellant/opposite party had categorically submitted that he had never received any amount for the services given by him. Although the respondent/complainant has failed to prove that he had given Rs.750.00 to the appellant/opposite party, despite this ld. Forum had passed the impugned judgment.
It is relevant to submit here that respondent/complainant had actually visited Rama X-ray Centre but since it was closed they consulted the appellant who had refused to give any sort of treatment because he had just returned from (3) Shahjahanpur. Since the complainant came with Shri Pradeep Kumar who had very good relation with doctor and on his request appellant doctor gave some initial first aid treatment free of cost. The appellant doctor gave free of cost first aid treatment to the patient and gave some medicine for pain and swelling and did temporary plaster on his arm and advised the complainant to consult an orthopaedist on the next day because there was fracture. The respondent/ complainant did not file any expert opinion that the initial treatment given by the appellant doctor had any shortcoming on account of which problem arises further.
The ld. forum has given very unreasonable and illogical finding that the appellant doctor did not treat the complainant the next day i.e. 19.10.1996 because of which hand of the son of the complainant became useless though the appellant was out of station on 19.10.1996. The complainant was advised to and should have shown his son to some other doctor on 19.10.1996. The appellant had given free of cost first aid treatment to the patient on 18.10.1996 night, as emergency treatment, as the complainant had visited the appellant doctor with a friend of the appellant and also due to medical ethics and humanitarian consideration. Hence, it is prayed that the appeal be allowed and the judgment and order be set aside.
The brief facts of the appeal no.2798 of 2016 are that, that the complaint was filed in the month of March, 1997 with the claim of Rs.4,95,000.0 and also prayed any other amount whichever deems fit in the interest of complainant, the ld. forum decided the complaint on 24.9.2016 and awarded Rs.50,000.00 for medical treatment at the rate of 9% interest (4) from the date of judgment till the date of actual payment and also awarded Rs.1,50,000.0 for loss of hand and Rs.25,000.00 for mental agony, as the awarded amount is in clear violation of the principles laid down by the Hon'ble Supreme Court in the case of medical negligence. The appellant was aged about 10 years on alleged date of incident and due to negligent treatment of the respondent, the left hand of the complainant lost his potency, as a result, he was declared 40% disabled. The ld. Forum failed to quantify the loss of the complainant as he was outstanding in the academic education but due to medical negligence, he was shocked for the long time, as a result, he was not in position to study with his full potency for future prospects.
The appellant lost his left hand as he was sharp and interested for getting education in mechanical engineering, ultimately he got selection in Diploma in Mechanical Engineering and he completed the same successfully, presently, he is pursuing study of mechanical Engineering from AMIE. The ld. forum failed to consider the prospective future loss of the appellant due to medical negligence of the respondent and also failed to consider the claim of the appellant in relation to the expenses of treatment etc. Therefore, it is most respectfully prayed that this Hon'ble Commission may kindly be pleased to enhance the compensation amount as awarded by the impugned judgment and order dated 24.9.2016 passed by the District Consumer Forum, Badaun the respondent in complaint case no.136 of 1997, Nitin Kumar Joshi vs. Dr. B.R. Gupta and allow the complaint case no.136 of 1997 and make payment of Rs.4,95,000.00 with compound interest from the date of filing (5) of the complaint and also order for quantifying the amount for loss of future prospects, whichever, the Hon'ble Commission deems fit, after summoning the lower court's record, in the interest of justice.
We have heard ld. Counsel for the parties and perused the document, evidence available on record. We has also perused the impugned judgment and orders.
The case of the complainant is that the bone of the left hand of the complainant was fractured on 18.10.1996 which was immediately shown to opposite party. The opposite party took Rs.750.00 as fees and started treatment on 18.10.1996. Some injections were tendered and plaster was administered on his hand. Some medicines were also prescribed and he was advised to go home. The complainant returned him on 18.10.1996 but on 19.10.1996 the hand colour started to change from natural to bluish/blackish and he felt excessive pain. He went to the opposite party but he was not at his home. The servant of the opposite party told that doctor will be available on 24.10.1996. The fingers of the complainant were in movement but on 19.10.1996, the fingers stopped to move. He went to the doctor but he told him that this is due to wrong injections and very tight plastering resulting secretion of poison in hand and now the hand shall be amputated. The complainant went to Delhi on 19.10.1996 and started his treatment at Omkar Clinic who also told that amputation is necessary. On 21.10.1996 at the place of Dr. Vinod Batra (MS, Ortho) his plaster was cut. There was large black boil on his hand. Dr. Batra also told that this is due to wrong injection and tight plastering and he also advised for amputation of the hand. The complainant went to Ram (6) Manohar Lohia Hospital on 23.10.1996 and he was operated on in the same night at 12.30. The complainant was in Ram Manohar Lohia Hospital till 16.12.1996. Before it, from 27.11.1996 he was sent to the exercise department of the hospital. He was told that due to non-setting of the bone of the band and tight plastering, he suffered. From 17.12.1996 to 1.1.1997 he was given an electric shock to treat the dead nerves of the hand and also advised for another operation. His treatment is still going on in Ram Manohar Lohia Hospital, Delhi. His hand become useless for cause of his life. The complainant filed the complaint before the ld. District Forum who after hearing and perusing document on record passed the judgment which is quoted above.
Against this impugned judgment, these two appeals have been filed one for setting aside the impugned judgment and order and other for enhancing the amount of compensation.
The doctor has stated in para-19 of his written statement that the answering opposite party gave the anaesthesia injection not in the hand in which fracture was present but in the other hand and if there was any reason of spreading the version, it should have been spread not in the plaster hand but throughout the body of the complainant. It is really surprising that there was fracture in the left hand of the complainant and the concerned Dr injected the anaesthesia in right-hand of the complainant. It means when the plaster was administered in the left hand it was not numb! How is it possible? We have seen many articles but in no article we find that the anaesthesia is given in the other hand and not in the hand having fracture. Anaesthesia test may be done in the other (7) hand but local anaesthesia is always given in the hand having fractured bone.
The doctor has also stated in his written statement that complainant came to him late night and his wife has actually centre though close but she did the x-ray after opening the centre and gave the report of the doctor. Late-night means latter part of the night that is from 12 in the night till 6 AM. The doctor has said that after x-ray when the complainant4 pressed for plastering of his hand, he asked and to bring all the articles needed for temporary plastering. Whether in the late-night, any medical shop of providing medical equipment and plastering articles was open? Medical shop may be open. The matter relates to District Budayun were it was not possible in 1996 that any medical equipment providing shop should have been opened in late-night.
The concerned Dr has stated that he went to Sahibabad to attend a marriage function in his family in the evening of 19 October 1996. 19 October 1996 was Saturday. From Budayun to Sahibabad one made in about 4.45 hours so it does not seem reasonable that attend a marriage function he went in the evening of 19 October 1996 while the function was scheduled at 11:20 AM on 20 October 1996 . In family function, one goes before one day so the version of the complainant that when he reached on 19th October, the servant of the doctor Dr told him that Dr is out. It is reasonable.
Now why the complications in the left-hand occurred after temporary plaster. We have seen a number of articles were complication middle of due to tight plaster.
(8)Casts are often an important part of the management of broken bones. However, problems can arise when wearing a cast. These issues may go unnoticed and worsen unless you spot the signs and report them to your healthcare provider. It is not just pain you should be concerned about--but also signs of infection, excessive swelling, or an improperly fitted cast that may affect bone healing.
The initial cast may need to be replaced during the treatment period, as it's common for a common for the case to become loose as the initial swelling begins to come down. There may be some itching and aches as the bone starts to heal, but new or worsening pain is a sign that something is wrong.
This article looks at some of the potentially serious problems that can occur while wearing a cast. It also lists the signs and symptoms that warrant an immediate visit to your healthcare provider.
Skin Maceration One of the most challenging aspects of having a cast is keeping it dry. While there are waterproof casts and cast materials made to tolerate moisture, most people are still encouraged to keep the cast dry.
Some casts can become damaged by water, but the more serious problem is the potential for skin maceration, which is when the skin starts to break down.2 Water that's trapped in your cast can lead to skin damage.
Skin maceration can cause itchiness as well as the development of sores and cracks. This, in turn, can lead to skin infections.
(9)If you get water under your cast and it wasn't made to tolerate water, you should let your healthcare provider know--because the cast may need to be replaced.
Signs of infection warrant immediate care. These include a fever, soreness, pain, redness, skin warmth, a foul smell, or pus underneath the cast or extending beyond it.
4 Ways to Keep Your Cast Dry Pressure Sores Another complication of wearing a cast is pressure sores, also known as pressure ulcers.3 These tend to develop over bony areas, such as the ankle or elbow. They are caused by sustained pressure on the skin, often when a cast is poorly fitted.
Pressure sores may cause pain, and can lead to skin infections and bleeding.3 Skin infections can often be recognized by a foul odor and/or the drainage of fluid from underneath the cast. There may also be a visible spot on the cast as the drainage or bleeding seeps through.
If you suspect that you have a pressure sore under your cast, see your healthcare provider. The cast may need to be loosened or replaced.
Compartment Syndrome A rare but more serious cast-related complication is compartment syndrome. This occurs when a cast is too tight, causing pressure within the cast that cannot be released.4 This may compress nerves and blood vessels and can reduce blood flow to tissues.
Symptoms of compartment syndrome are:
Increased and uncontrolled pain Severe pain when passively moving the fingers or toes (10) Increasing numbness or cold Bluish skin discoloration (referred to as cyanosis) due to the deprivation of oxygen in tissues.
If not recognized and treated appropriately, compartment syndrome can cause permanent nerve injury and tissue necrosis (death).
When to Call Your Healthcare Provider If you have any of the following symptoms, it could be a sign of a cast-related complication that needs immediate medical attention:1 Pain that is increasing, severe, and not controlled with pain medications or improved by elevating the injured limb to heart level Swelling Worsening numbness or tingling in the hands or feet Inability to move your fingers or toes Bluish discoloration of the hands or feet Skin that remains white after pressing down on it Foul odors from beneath the cast Drainage of fluids from beneath the cast Fever with chills Loosening, splitting, or broken casts Summary Casts aid in the healing of bones but may cause problems if the cast gets overly soaked or is improperly fitted. This can lead to skin maceration (in which saturated skin starts to break down), pressure sores (typically on bony parts of the body), and compartment syndrome (caused when a tight cast cuts off blood circulation).(11)
If left untreated, these complications can lead to skin infections, permanent nerve injury, and even tissue death. They can be avoided by replacing the cast if it gets damaged or is too tight.
A Word From Verywell You can have fun with your cast, but, for many people, they eventually become extremely annoying and even unbearable. No matter how annoying they become, never attempt to remove a cast on your own. This is true even if a cast is scheduled to be removed.
Orthopedists remove casts with saws specially designed to avoid harming underlying tissues. Attempting to remove a cast with other tools can be dangerous and cause serious injury. If you feel that your cast needs to be removed for any reason, call your healthcare provider.
A pressure ulcer is an area of skin that breaks down when constant pressure is placed against the skin or when there's skin pressure in combination with shear and/or friction. This skin breakdown can result in exposure of the underlying tissue, potentially leading to complications, like a severe infection.
Pressure ulcers usually occur over a bony prominence, such as the sacrum (tail bone), hip bone, elbow, or ischium. They are treated with a variety of wound care methods, and in some severe cases, may require plastic surgery repair.
Prevention of pressure ulcers is one of the goals of nursing care for people who are not active. Alternative names include pressure injury (now the preferred term), pressure sore, decubitus ulcer, decubiti, and bedsore.(12)
The National Pressure Ulcer Advisory Panel (NPUAP) initiated using the term pressure injury rather than pressure ulcer in 2016. This change was made because the injury begins before there is an ulcer (a break in the skin). The staging of pressure injuries was also modified at that time.
Types of Pressure Ulcers Pressure injuries are classified according to stages describing the symptoms and the amount of tissue loss. Different classification systems have been used over the years. The staging system revised in 2016 by NPUAP describes these symptoms and stages:
Stage 1: Intact skin with persistent erythema (redness) of a localized area. When pressed, the area doesn't blanch. Blanching is lightening of the skin with pressure, and then darkening again when the pressure is released. If a person has darkly pigmented skin, redness may be harder to see, but the affected area may differ in color from the surrounding area. Early signs can include erythema, or changes in temperature, firmness, or sensation. If the color change is to purple or maroon, this indicates a severe deep-pressure injury.
Stage 2: Partial-thickness skin loss with exposed dermis. The wound looks like a shallow open ulcer or an intact or ruptured blister. The bed of the wound is still pink, red, and moist, indicating that it is viable (it can heal and survive). You don't see eschar (scab), granulation tissue (growth of healing skin that is pink or red and uneven), or slough (soft, moist tissue that adheres to the wound bed in string or clumps).(13)
Stage 3: Full-thickness skin loss. Subcutaneous fat may be visible, but bone, tendon, or muscle are not exposed. Often you will see granulation tissue and rolled edges of the wound. There may be slough or eschar.
Stage 4: Full-thickness tissue loss with exposed bone, tendon, ligament, fascia, cartilage, or muscle. The wound may have slough, eschar, rolled edges, undermining, or tunneling.
Unstageable pressure injury: A stage 3 or 4 full-thickness injury that is obscured by slough or eschar. Stable eschar should not be removed if it develops on a limb or heel.
Deep tissue pressure injury: Intact or non-intact skin with a localized area of persistent non-blanching deep red, maroon, or purple discoloration or epidermal separation that reveals a dark wound bed or blood-filled blister.
Pressure Ulcer Symptoms Those who are at risk of pressure ulcers need to have their skin checked by their caregivers frequently to look for the symptoms of pressure injury.
Signs to look for include:
Changes in skin color. In people with light skin tones, look for redness that doesn't blanch when you press lightly on it. In people with darker skin tones, look for darker areas of skin that don't lighten when you press lightly on them.
Swelling, pain, or tenderness Areas of skin that feel warmer or cooler than the surrounding areas (14) An open ulcer or blister Pus-like drainage Complications of pressure ulcers may include:
Hematoma Infection Wound dehiscence (the edges of the wounds do not meet) Recurrence Sites A pressure ulcer can occur anywhere prolonged pressure is applied. However, the most common susceptible areas are bony prominences. A report of the California Hospital Patient Safety Organization (CHPSO) found these the most frequent locations for healthcare-acquired pressure injuries, from most to least:3 Coccyx Sacrum Heel Ear Buttocks Ankle Nose Gluteal cleft (butt crack) Causes Skin breakdown is caused by sustained pressure on the skin. The pressure narrows or collapses blood vessels, which reduces blood flow to the skin and underlying tissues. This ultimately leads to tissue death.
Risk factors include:4 Having poor skin hygiene Lying on hard surfaces (15) Use of patient restraints Having poor-fitting prostheses Prolonged immobility Diabetes Smoking Poor nutrition Vascular disease Spinal cord injury Contractures Immunosuppression Pressure injuries may also result from medical devices. These can include bilevel noninvasive positive pressure breathing masks, endotracheal tubes, nasogastric tubes, and nasal oxygen cannula tubing.
High-Risk Populations for Pressure Ulcers The highest incidences of pressure ulcers are found in the following populations:
Elderly Those associated with trauma such as hip fractures and other fractures Quadriplegic Neurologically-impaired young (children with paralysis, spina bifida, brain injury, etc.) Chronically hospitalized Nursing home residents Ricks Factors for Pressure Ulcers Diagnosis When a pressure injury is suspected, a healthcare provider will assess it by location, size, appearance, color (16) changes, the state of the base tissues and edges, pain, odor, and exudate.
The provider will look for signs of infection or edema. They will check the distal pulses, and check for signs of neuropathy.
Diagnostic tests may include ankle-brachial index, pulse volume recording, Doppler waveforms, and ultrasound imaging for venous disease.6 Based on this assessment, the provider can then stage the ulcer and determine appropriate treatment and monitoring.
Treatment Pressure ulcers are managed both medically and/or surgically. When considering treatment, your healthcare provider will also consider your overall health and nutritional status.
Conservative Management Stage 1 and 2 pressure ulcers can be managed without surgery. The wound is cleaned and then kept clean, moist, and covered with an appropriate dressing. Frequent dressing changes are used to keep the wound clean and prevent infection. Sometimes, topical antibiotic medications are used on pressure ulcers as well.
Surgery Stage 3 and 4 pressure ulcers frequently require surgical intervention. The first step is to remove all the dead tissue, in a procedure that's known as debridement. It can be done in several ways. These include the use of ultrasound, irrigation, laser, biosurgery (using maggots), surgery, and topical methods (such as medical-grade honey or enzyme ointments).7 (17) Debridement of the pressure ulcer is followed by flap reconstruction. Flap reconstruction involves using your own tissue to fill the hole/ulcer Prevention Pressure ulcers are preventable. Here are some tips on how you can avoid them.
Minimize moisture to avoid skin maceration and breakdown. Avoid prolonged contact with feces, urine, or sweat.
Use caution when transferring to and from your bed or a chair. This avoids friction and shearing of the skin.
Avoid sitting or lying in one position for a prolonged period of time. Switching positions gives your skin a break and allows the return of blood flow.
In bed, relieve pressure on bony parts of your body by using pillows or foam wedges.
Maintain proper nutrition. Eating a healthy diet keeps your skin healthy and improves its ability to avoid injury and fight infection.
Hospital-acquired pressure injuries have been significantly reduced due to efforts made by the Centers for Medicare and Medicaid Services and the Agency for Healthcare Research and Quality. The rate fell from 40.3 to 30.9 per 1,000 discharges from 2010 to 2014. The more serious stage 3 and 4 injuries dropeed from 11.8 to 0.8 cases per 1,000 patients from 2008 to 2012.
Now we come to see the facts of this case. The first-aid may be given in case of the fractured bone, by placing a supportive wooden piece or wooden scale in the hand and the patient is asked to come on the next day. In this case Dr was (18) efficient to decide whether he should take the case in hand or not. Emergency always remains open in all the government hospitals. So there was no need to take the case in hand that too at late night! It shows that Dr must have taken fees for doing this job at late night otherwise he may very well asked him to go to any government hospital for emergency. We should also keep in mind the oath taken be a doctor when they enter in the noble profession.
Now let us see the oath taken be a doctor before entering the nobel profession of the Medical World . As per guidelines of MCI , Every member should get it framed in his or her office It should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.(19)
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. 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 (20) guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the (21) warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" 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 in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient , the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient .
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha III(1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not (22) be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC 513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and (23) reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995) In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent.This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent.
This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
Essentials of Res Ipsa Loquitur Maxim (24) The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In Achutrao Haribhau Khodwa and Others vs State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act (25) Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.(26)
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a (27) warehouse window, the law will assume that it happened because someone was negligent.
Top of Form Bottom of Form The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of (28) negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the (29) result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence cases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat , the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. { Mark Luney and Ken Opliphant , Tort Law (30) Text And Materials (Oxford University Press, New York, 2000) pp 173-175 } In A.S. Mittal & Anr Vs State Of UP & Ors , AIR 1979 SC 1570 , the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth ₹ 12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not have occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.(31)
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.(32)
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.
Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community.(33)
This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
"Toxic Epidermal Necrolysis ( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%."
"Smt. Anuradha Saha ( in short Anuradha), aged about 36 years wife of Dr.Kunal Saha ( complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a (34) university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998."
"Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions (35) of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary."
"The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr.Sukumar Mukherjee, Dr.B.Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.Kaushik Nandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC."
"The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. (36) Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment."
"Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs."
"Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No. 1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Honble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos. 1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Honble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.Kaushik Nandy has (37) done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation."
"We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed (38) by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others."
"The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission."
"Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity."
" The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue (39) enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court."
" There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals."
"On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- ( rounded of to Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr.Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them."
" In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
The above amount shall be paid by opposite parties no. 1 to 4 to the complainant in the following manner:(40)
(i). Dr.Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation] .
(ii) Dr. B.Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation]
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default."
Now we again come to the facts of this case. Negligence how can be seen? When Dr himself has admitted that he administered anaesthesia not in the fractured hand at in the other hand, what can be said? Again Dr has stated in his written statement that the child due to his childhood action got in the in the plaster hand therefore the swelling in the plaster hand increased. It means that swelling increase in the plaster hand and the reason is only due to tight plaster. Nothing as can be concluded. If the doctor knew that he is going to attend a function on the very next day, he should not (41) have taken this case because post-operative care is very much important in all operation whether minor or major. He is doing private practice therefore he must have charged the patient otherwise at late night there was no need to perform the operation because at that time there must not be any pharmacist or supportive staff. So all these things indicate the negligence performed by the Dr. So after going all the facts and circumstances and also admission of the doctor we are of the view that the appeal no 2669 of 216 Dr BR Gupta Vs Nitin Kumar Joshi is level to dismissed cost.
After going into discussions as mentioned above we are of the firm view that there is clear negligence on the part of the doctor. The learned Forum has awarded Rs.50,000 towards treatment with 9% in pill interest, Rs.150,000 towards defective hand and Rs.25,000 towards mental and physical sufferings. Complainant had specifically said that the nurse become functional as and he was advised for the second operation and still he is treatment at Ram Manohar Hospital Delhi. Keeping this we are of the view that the amount of award should be increased/enhanced and it will serve the purpose by passing following order :
Rs.2 lakhs for the treatment, Rs.250,000 /for the suffering of hand and Rs.40,000 towards mental and physical torture and pain and Rs.20,000 towards cost the suit. So the appeal no 2798/ 16 is decided accordingly.(42)
ORDER The Appeal no.2669 of 2016 Dr. B.R. Gupta Vs. Nitin Kumar Joshi is dismissed with cost.
The Appeal no. 2798 of 2016 Nitin Kumar Joshi Vs. Dr BR Gupta is allowed partially and the judgment/order appeal was in complaint case 136 of 1997 is replaced by the following order.
The opposite party is directed to pay Rs.2 lakhs for the treatment, Rs.250,000 /for the suffering of hand and Rs.40,000 towards mental and physical torture and pain and Rs.20,000 towards cost the suit. All this amount be paid within 60 days from the date of judgment of complaint case with interest at a rate of 10% per annum from 24.09.1996 till passing of 15 days otherwise the rate of interest shall be 15% per annum from 24.09.1996 till the date of actual payment.
The stenographer is requested to upload this order on the Website of this Commission today itself.
A certified copy of this order be placed on the record of Appeal no.2798 of 2016.
Certified copy of this judgment be provided to the parties as per rules.
Let the record be consigned.
(Vikas Saxena) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Vikas Saxena) (Rajendra Singh) Member Presiding Member Dated March 9, 2023 JafRi, PA I Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER