National Consumer Disputes Redressal
Balbir Sing Makol vs Chairman, Sir Ganga Ram Hospital And ... on 15 December, 2000
ORDER
J.K. Mehra, J. Member
1. The complaint has been filed by the parents for late Manpreet Singh Makol who is alleged to have been the victim of medical blunder committed by Dr. J.S. Makhani, Senior Orthopaedic Consultant, Sir Ganga Ram Hospital. According to the Complainant his son was a patient of Osteosercoma upper end tibia. The malignant tumor was suspected at the very initial stage and radio therapy and open biopsy was advised by the Doctors of PGI, Chandigarh. The Complainant on the advise of Dr. M.P. Singh of General Hospital, Chandigarh, consulted Dr. Makhani, Opposite Party No.2, herein, for second opinion. On the advice of Dr. Makhani, Opposite Party No.2, the Complainant's son was admitted in the Ganga Ram Hospital, Opposite Party No.1 on 27.7.1989 and bone grafting was done on 28.7.1989. The patient was discharged on 2.8.1989 with the biopsy report 'awaited'. The Complainant was pacified when he questioned the Doctors about the doing of bone grafting without the biopsy report. The Complainant was told by the Doctors of the Ganga Ram Hospital, Opposite Party No.1, that there was no such disease, i.e. 'osteoblastoma' as diagnosed by the Doctors of PGI, Chandigarh. According to the Complainant amputation was done on 26.10.1989 and his son succumbed on 3.8.1990. After this unfortunate incident, he had submitted a memorandum to the cancer research review programme held at PGI, Chandigarh and had written to the Tata Cancer Institute, Bombay, according to whom, the only treatment was mid-thigh amputation. According to the Complainant the bone grafting to a patient of osteosarcoma was a criminal act on the part of the part of the doctors who operated upon the patient. The Complainant in his complaint alleges that the Doctors knowingly, deliberately and intentionally gave wrong treatment to make money. According to him, had his son been given proper services, the life of his son would have been saved. According to the Complainant, he had made various representations to the Indian Medical Association, to the Secretary, Medical, Delhi Administration and to the Lt.Governor, Delhi and so far, he had not received any reply to any one of them. Apart from that, he had also sent representations to the Prime Minister and to various Ministers. He alleges that simple leg amputation could have saved his life and unwanted bone grafting and delayed amputations caused the Complainant and his wife a precious life.
2. In view of the above the Complainant has claimed the following reliefs:
(i) a sum of Rs.50 crores for the compensation/damages
(ii) to award costs of this complaint; and
(iii) any other order(s) which this Commission deems fit as per the facts and circumstances of this case.
3. In the complaint the Complainant has not given the details of the aforesaid sum of Rs.50 Crores or the manner in which such a figure has been arrived at.
4. In response to the complaint, the Opposite Parties Nos. 2 to 4 have filed their replies. In the reply filed by the Opposite Party No.2, it was denied that the Manpreet Singh Makol was a victim of the unmatched medical blunder. According to Opposite Party No.2, the report of the PGI, Chandigarh, cannot be treated as confirmation of the patent suffering form Osteo Sarcoma of the upper end of the tibia. This report was based on the Fine Needle Aspiration Cytology. The Opposite Party No.2 states that in the facts and circumstances of the case, it was imperative to first preform a biopsy any remedial measures- surgical or medical could be taken resort to because it was only after the availability of the biopsy report that any medical practitioner could commence treating the afflicted patient. According to the Opposite Party No.2, bone graft are not performed in the absence of due and sufficient reasons. While denying the allegation that the earlier bone grafting done on 28.7.1989 was a mindless,wasteful operation, it is stated by the Opposite Party No.2 that the surgical procedure of 28.7.1989 was essentially for diagnosing the nature of the tumor and for the purposes of a biopsy which necessitated a minor bone graft to pack the cavity which came to light only after opening up of the patient's knee. It is also denied that the mid-thigh amputation done on 26.10.1989 exposed that the surgical procedure of 28.7.1989 was monstrous, mindless and wasteful.
5. According to Opposite Party No.3, he is only a Junior Doctor and his duties as a Junior Consultant essentially involved giving assistance to the Senior Consultant attached to one of he Orthopaedic Units of the Opposite Party No.1, Sir Ganga Ram Hospital and obeying and implementing any instructions given by the Senior Consultant and prayed that the complaint may be dismissed on the ground that the Complainant has failed to make out any case on facts or law. According to the Opposite Party, he saw the patient barely for two hours before the operation. He was not the Doctor who was the take the decision on the line of the treatment or the kind of operation which was to be performed. his job was to merely assist the Senior Doctor in performing the operation
6. In reply to the Complaint filed by the Complainant, Opposite Party No.4 states that he was employed as Medical Officer at the General Hospital, Chandigarh, that on the basis of this learning and experience he bonafidly suggested in the interest of the patient for a second opinion and that impleading the Opposite Party No.4 is unwise, improper and the complaint be dismissed.
7. It is needless to say that the Complainant had filed rejoinder to the replies filed by the Opposite Parties Nos. 2 to 4.
8. The case was taken up for hearing on various dates. On the 9th February, 1999, the cross-examination of the Complainant was conducted by Opposite Parties Nos. 2 to 4. The case was adjourned to 15th April, 1999 for the cross-examination of the Opposite Party No.2, Dr. J.S. Makhani, Opposite Party No.4 Dr. M.P. Singh and the witnesses of Opposite Party No.4, Mr. Harvinder Singh Oberoi. In the meantime the Opposite Party No.4 was directed to file affidavits by way of evidence.
9. On 13th March, 2000, a letter was filed by Mrs. Makhani, stating that Dr. Makhani expired on 11.11.1999 and that in view of the death of Dr. J.S. Makhani, the proceedings before this Commission no longer survive and they may be terminated as right to sue does not survive against legal heirs of late Dr. J.S. Makhani who was the senior doctor who was consulted by the Complainant and who decided upon the time of treatment and who performed the operation on the deceased.
10. In the complaint the main allegation of negligence is against Dr. Makhani who performed the operation at Sir Ganga Ram Hospital who was the Doctor-in-charge in the said case. Before the case could reach its culmination the said Doctor, i.e. Dr. Makahni, died. Thus, the allegations could neither be rebutted nor could he have an opportunity to defend himself. In a tort of medical negligence, the cause of action is personal against the person who has been negligent in discharging his duties and that the cause of action does not survive against his estate or the Legal Representatives. However, in case the trial had been completed and a decree/judgment had been passed against the said deceased, that amount payable under the decree could be recovered form the estate of the deceased and the deceased and in such event the legal representatives of the deceased could be brought on record. But, that did not happen in the present case and even the question whether Dr. Makhani had been negligent in the discharge of his duties as a Surgeon could not be adjudicated upon. In this view of the matter, The maxim actio personalis moritus cum persona, as a general rule is applicable to actions in torts and, therefore, the cause of action against the party against whom an action in tort is brought is extinguished on his death. The maxim means that personal right of action dies with the person in other words death destroys the right of action. The right to sue will be extinguished. In this connection a reference be made to the following, among other, rulings.
11. In G. Jayaprakash v. The State of Andhra Pradesh repored in AIR 1977 A.P.20(22) the Hon'ble Supreme Court held as under:
"The death of the doctor extinguished his liability for damages and the suit against him stood abated. The maxim, "actio personalis meritur cum persona" applied to the case.
In the 8th Edn. Of Winfield on Tort at p.740. the following passage occurs:
In case of a lawful surgical operation in general negatives the liability. But in a case where actionable negligence is committed by the doctor which amounts to a personal wrong done by him, he may be liable of damages. But his death extinguishes his liability in tort and the right to sue also gets extinguished. So, I see no force in the contention that the 3rd defendant's estate was benefited by the wrong done by him."
12. To the same effect is the ruling from a Division Bench of Madras High Court in RM.P. KP. AR. Arunachalam Chettiar v. V.S. @ S.V. V. Subramanian Chettiar (died) and Anr, reported in AIR 1958 Madras 142 and Baboolal Nanhela, v. Ramlal Nandram reported in AIR 1952 Nagpur 408.
13. The Hon'ble Supreme Court while considering the question of bringing on record the legal representatives of the deceased who was sued for damages in a tort of defamation was considered and answered likewise in the case of Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, reported in AIR 1986 SC 411. That was the case where the suit for defamation had been dismissed and the plaintiff had filed an appeal. During the pendency of the appeal, the Defendant who was being sued for defamation had died. The supreme Court held that his legal representatives could not be brought on record as the cause of action stood extinguished.
14. In paragraph 7, the Hon'ble Supreme Court has observed as under:
"Where a suit for defamation is dismissed and the plaintiff has filed an appeal, what the appellant-plaintiff is seeking to enforce in the appeal in his right to sue for damages of defamation and as this right does not survive his death, his legal representative has no right to be brought on the record of the appeal in his place and stead if the appellant dies during the pendency of the appeal. The position, however, is different where a suit for defamation has resulted in a decree in favour of the plaintiff because in such a case the cause of action has merged decree and the decretal debt forms part of his estate and the appeal form the decree by the defendant becomes a question of benefit or deteriment to the estate of the plaintiff-respondent which his legal representatives is entitled to uphold and defend and is, therefore, entitled to be substituted in place of he deceased respondent-plaintiff."
15. In the light of the above legal position, this Commission has no option but to hold that the present complaint cannot proceed any further against Dr. Makhani.
16. Coming to the role of the other Doctors we find that the Opposite Party No.3 was only a Junior Doctor who was called to assist Dr. Makhani and he was in no way responsible for any decision to prescribe the line of treatment and he cannot have any liability independent of Dr. Makhani. Since the case has failed against Dr. Makhani, it cannot proceed any further against Opposite Party No.3 or even Respondent No.1 which is the hospital where operation was carried out because there is no allegation of lack of service or negligence in nursing care etc. by the Hospital staff as such.
17.The Respondent No.4, according to the allegations in the complaint, had merely recommended that a second opinion be obtained before proceedings and further with the treatment at Chandigarh. To suggest that cautious approach requiring the patient to go in for a second opinion also, particularly when there were doubts about the nature of malady in the legs of the deceased cannot be described as a case of medical negligence.
18. It is unfortunate that no relief in the present case can be accorded to the Complainant on account of the death of the Senior. Surgeon who was actually consulted and who took the decision to operate in the manner he did. We have no way to ascertain as to what were the considerations before the deceased at the time he took the decision.
19. The result of the above discussion is that this complaint cannot be proceeded with any further and must fail for the reasons set out hereinabove. The complaint is therefore dismissed with no order as to costs.