National Consumer Disputes Redressal
Dr. Ram Sushil Tripathi And Anr. vs Ghanshayam Khatik on 22 September, 2005
Equivalent citations: II(2006)CPJ218(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. This revision petition has been filed against the order of the State Consumer Disputes Redressal Commission, Madhya Pradesh in Appeal No. 1618 of 2003 dated 18.3.2005 awarding compensation of Rs. 1.00 lakh to the complainant/respondent on account of rendering deficient medical service and consequential death of his wife and still-born child of the complainant/respondent with Rs. 1,000/- as cost + interest at the rate of 9% p.m. from the date of death of the wife of the complainant/respondent i.e. 11.7.1998.
2. On 11.7.1998, the complainant/ respondent took his wife Madhu Khatik to R.S. Tripathi Clinic belonging to the petitioner while his wife was having pain in her abdomen. The petitioner informed that on account of complications, it was essential to undertake abortion. The petitioner demanded Rs. 5,000/-. The complainant/respondent took loan of Rs. 4,000/- from his 'Bua'- Shyam Bai and promised to pay the balance Rs. 1,000/- to the petitioner later on. The deceased was made to lie on the ground. Dr. Ram Lali @ Asha Tripathi put her hand in the abdomen of the deceased and took out the newly born child. Dr. Asha Tripathi said that 'Kanari' (Placenta) has not come out and she again put her hand in the abdomen and took out the 'Kanari'. Immediately thereafter, Madhu Khatik, the wife of the complainant/respondent and the child died. FIR was lodged. Post-mortem of Madhu Khatik and her newly born child was conducted. The challan was also filed. Both the accused were convicted.
3. It has also come on record that the petitioners did not have any Allopathic degree to perform operation. There is concurrent finding of fact against the petitioners in regard to the money.
4. The District Forum as well as the learned State Commission by referring to the judgment of Indian Medical Association v. V.P. Shantha and Ors. III (1995) CPJ 1 (SC), held that the complainant is a consumer. Out of total fee of Rs. 5,000/-, Rs. 4,000/- had already been paid. The petitioners without being competent had undertaken the operation. The post-mortem report indicated that the death of Madhu Khatik had taken place on account of reversal. As per the post-mortem report of the deceased, it appears that it was a case of excessive uterine bleeding and inverted uterus due to mismanagement of third stage of labour.
5. There is virtually no reason for the District Forum or the learned State Commission to disbelieve the complainant for he had no grudge or reason in falsely implicating the petitioners.
6. In Jecob Methew v. State of Punjab and Anr. , the Hon'ble Supreme Court has concluded in para 48(3). It made certain observations in regard to the situation like the situation in the present case :
A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(Emphasis supplied)
7. In this very judgment, the following oft-quoted passage defining negligence by professionals, generally and not necessarily confined to Doctors. In Bolam v. Friern Hospital Management Committee WLR at p. 586 All ER p. 121 D-F, in para 19 was referred to that:
Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill.... It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (Charlesworth and Percy, ibid., para 8.02) The Supreme Court further observed that:
The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well-condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley v. Binnie summarised the Bolam test in the following words (Con LR p. 79)-
From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet" (Charlesworth and Percy, ibid., para 8.04).
The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (4th Edn., Vol. 30, para 35):
35. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed, among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown, (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.
8. In this light, if we see and test, it is evident that the petitioners do not claim to be MBBS any more. As such, they were not qualified and they do not satisfy us that they could perform the operation. It is evident that even ordinary necessary precautions were not taken. It is not claimed that operation was performed by giving local or general anaesthesia. Nor, any injection was administered to facilitate the operation. Thus, it is evident that the petitioners were not adequately qualified to undertake the operation nor they did possess even ordinary skill of a man professing to have the special skill to undertake such operation. From evidence considered by the learned State Commission it is evident that they have performed the operation very crudely, which ultimately led to death of the wife and the child of the complainant. They lagged behind other ordinary assiduous and intelligent members of their profession in the knowledge of new advances, discoveries and developments in their field. Even they neither were alert to the hazards and risks while undertaking the operations nor they adopted competence in performing the said operation.
9. For the aforesaid reasons, we find that the impugned order passed by the learned State Commission is perfectly sound and just in holding the petitioner deficient in rendering medical service. As regards compensation, we feel that the learned State Commission has been too lenient in awarding compensation of just Rs. 1,00,000/- for loss of two lives. Accordingly, we feel that no interference is called for in absence of any jurisdictional error.
10. For the aforesaid reasons, the revision petition is dismissed.