State Consumer Disputes Redressal Commission
Dr. Ravi Gupta vs Durgesh Saini on 19 January, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No : 475 of 2014 Date of Institution: 11.06.2014 Date of Decision : 09.01.2015 Dr. Ravi Gupta s/o Sh. B.R. Gupta, Gagan Hospital, Behind Old Bus Stand, Kurukshetra. Appellant-Opposite Party Versus 1. Durgesh Saini w/o late Sh. Gurdial Singh 2. Shikha Saini d/o late Sh. Gurdial Singh 3. Shubham Saini s/o late Sh. Gurdial Singh through her mother Smt. Durgesh Saini as natural guardian 4. Sheetal Saini d/o late Sh. Gurdial Singh All Residents of Mohan Nagar, Thanesar City, District Kurukshetra. Respondents-Complainants CORAM: Honble Mr. Justice Nawab Singh, President. Shri B.M. Bedi, Judicial Member. Shri Diwan Singh Chauhan, Member Present: Dr. Ravi Gupta-appellant in person. Shri Shekhar Thakur, Advocate for respondents. O R D E R
B.M. BEDI, JUDICIAL MEMBER:
Dr. Ravi Gupta-Opposite Party has filed the present appeal against the order dated April 28th, 2014 passed by District Consumer Disputes Redressal Forum (for short District Forum), Kurukshetra, vide which complaint filed by respondents-complainants was allowed.
2. Durgesh Saini-widow, Shikha Saini and Sheetal Saini-daughters and Shubham Saini being son filed complaint under Section 12 of the Consumer Protection Act, 1986 on account of death of Gurdial Singh, alleging medical negligence and deficiency in service on the part of appellant while treating the deceased.
3. Gurdial Singh met with an accident on November 25th, 2000 and was referred to the appellant on December 6th, 2000 on account of injury in left knee. He was operated on December 7th, 2000. After operation, Gurdial Singh died due to Myocardial infarction (heart attack). He was alleged to have died because of over dose of anaesthesia. The respondents got a case registered against the appellant under F.I.R. No.384 dated December 7th, 2000 (Annexure C-X) under Section 304 I.P.C. with Police Station, City Thanesar. The complainants sought compensation of Rs.5.00 lacs from the appellant.
4. Notice being issued, the opposite party contested. It was submitted that Gurdial Singh met with an accident on November 25th, 2000 and was brought to him with fracture in Patella of knee. Operation was conducted on December 7th, 2000 at 9.30 A.M. and was over by 10.45 A.M. It was a successful operation. The patient died at about 12.30 P.M. due to Myocardial infarction (heart attack). Postmortem was got conducted at Post Graduate Institute of Medical Sciences (for short PGIMS), Rohtak on December 8th, 2000 vide report (Exhibit R-2) whereby it was opined that death was due to heart attack. It was stated that only operation or local anaesthesia had no role in heart attack.
5. Vide impugned order, the District Forum allowed the complaint. The operative part of the order is as under:-
we allow the present complaint and direct the OP to pay an amount of Rs.2,00,000/- alongwith interest at the rate of 9% per annum within 30 days to the complainant as compensation from the date of filing of present complaint and failing to make payment within above said period of 30 days by OP, the complainant would be entitled to higher interest at the @ 12% from the date of filing of present complaint till the date of actual realization.
6. The short issue involved is as to whether local anaesthesia given by the appellant was the cause of Myocardial infarction (heart attack) which led to death of Gurdial Singh?
7. It is not in dispute that the deceased met with an accident on November 25th, 2000 and was earlier treated by Dr. Nagpal who referred the patient to the appellant on November 6th, 2000 because of fracture in Patella of knee. Operation Notes in the medical record maintained by the appellant while operating the deceased as indoor patient, shows that the deceased was operated under local anaesthesia by giving injection of Xylocaine. The operation was started at 9.30 A.M. and completed at 10.45 A.M. It was successful and vitals of patient were normal. At 11.30 A.M. he was again examined and his vital were found normal. At 12.30 P.M. the patient died because of Myocardial infarction known as heart attack.
8. It is not in dispute that a criminal case was registered against the appellant vide F.I.R. No.384 (Annexure C-X) on December 7th, 2000 under Section 304 I.P.C. with Police Station, City Thanesar. Postmortem examination (Exhibit R-2) of the deceased was got conducted from PGIMS, Rohtak. The case was referred to Medical Board and a Committee of Doctors consisting of Dr. N.P. Singh, M.O. and Dr. K.K. Chawla, M.O. of LNJP General Hospital, Kurukshetra, whereby it was found that there was no negligence on the part of Dr. Ravi Gupta. Viscera was also sent to Forensic Science Laborary, Madhuban, Karnal and for histopathological study at PGIMS, Rohtak. It was opined by Dr.V. Singh, Director, FSL, Haryana, Madhuban vide report dated July 31st, 2001 that no common poison could be detected in the viscera examination of deceased Gurdial Singh. Dr. Pawan, Medical Officer, Department of Pathology, PGIMS, Rohtak gave his histopathological report dated July 19th, 2001 confirming that the cause of death of deceased was acute myocardial infarction. On the basis of aforesaid evidence, the appellant was discharged by the court of Shri Rajinder Goel, Chief Judicial Magistrate, Kurukshetra on April 22nd, 2005 vide order (Exhibit R-1) before framing charge, as nothing incriminating was found and there being nothing on the file to frame charge to proceed further with the trial. State of Haryana preferred Criminal Revision bearing No.15 of 2005 before learned Sessions Judge, Kurukshetra which was also dismissed vide order dated February 10th, 2006 (Exhibit R-2) affirming the order of Chief Judicial Magistrate, vide which the appellant was discharged.
9. One of the allegations of the respondents is that the appellant before operation gave a list of medicines which they purchased from the chemist and the list included six ampules of Ketamine injections (used for giving anaesthesia) and thus it was a case of overdose of anaesthesia.
10. The appellant has drawn our attention to the list of medicines prescribed by him and bill of chemist. As per list, though four ampules of Ketamine injections were prescribed, however, the list was tampered to make it five and even the bill was tampered to show purchase of six ampules. The appellant has referred to the bill (Annexure-VIII) vide which injections were purchased, showing batch number as 210800. The name of manufacturer is mentioned as Themis Pharmaceuticals and also produced the injection ampules stating that these were never used. Four ampules of Ketamine injections were examined and were found of same batch number as mentioned in bill (Annexure-VIII). The injections have been taken on the file and made part of the file. The contention of appellant that he did not give general anaesthesia, finds support from the postmortem report (Exhibit R-2) as well as the report of histopathologist. As per appellant, he had only given local anaesthesia and as per postmortem there is mention (at page 2 column 5) An injection mark was seen on the front of knee on its upper part. This injection mark found on the left knee further supports the contention of the Doctor of having only given local anaesthesia.
11. There is another aspect that an injection mark was found on the front of chest in left 5th intercostals space in the middancular line, which as per appellant was given after heart attack to revive the patient.
12. As to what constitute Medical Negligence, Honble Supreme Court has laid down the law in Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1 as under:-
1. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
2. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.
3. 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 practices. 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.
4. The test for determining medical negligence as laid down in Bolams case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.
5. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law my not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
6. The word gross has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be gross. The expression rash or negligent act as occurring in Section 304A of the IPC has to be read as qualified by the word grossly.
7. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
8. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsaloquitur has, if at all, a limited application in trial on a charge of criminal negligence.
In Jacob Mathew (supra) the three Judge Bench, elaborating on the degree of skill and care required of a medical practitioner quoted Halsburys Laws of England (4th Edn., Vol.30, para35), as follows:
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 operation in a different way;
13. In MARTIN F. DSOUZA versus MOHD. ISHFAQ, I(2009) CPJ 32 (SC), Honble Supreme Court observed as under:-
From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.
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, 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 submission.
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.
14. In Revision Petition No.1311 of 2013 titled Rajiv Navath Versus Dr. Shajahan Yoosaf Sahib and others (N.C.), it has been observed that:-
12. What constitutes Medical Negligence is now well established by a plethora of Rulings of the Honorable Supreme Court of India and by several orders of this Commission. In the Bolams case (Bolam Vs. Frien Hospital Management Committee (1957)1 WLR 582).
The locus classicus of the test for the standard of care in law, required of a doctor, developed from this landmark case. Mr Justice McNair, in his direction to the jury, said:
[a doctor] is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.
15. Honble National Commission in S.N. SINGH (DR.) versus DEVENDRA SINGH & ANR, III(2011) CPJ 390 (NC), relied upon the judgment rendered by the Honble Supreme Court and held as under:-
17. In C.P. Sreekumar (Dr.) MS (Ortho) v. S. Ramanujam, II(2009) CPJ 48 (SC)=(2009)7 SCC 130, the Supreme Court held that bald statement of the complainant cannot be accepted to reach conclusion that the Doctor lacked expertise. It is observed that too much suspicion about the negligence of the attending Doctors and frequent interference by Courts could be a dangerous proposition as it would prevent Doctors from taking decision which could result in complications and in such a situation the patient will be the ultimate sufferer.
16. Honble National Commission in Mohd. Abrar versus Dr. Ashok Desai and others, 2011 CTJ 613 (CP) (NCDRC) has observed as under:-
The medical practitioners cannot be treated as magicians or demi-Gods. They are fallible human beings. The liability to pay compensation may arise only when the complainant proves that the causation was result of negligence committed by the medical practitioner and there was clear material available to foresee the injury.
17. In the case in hand, there is no evidence on the file, not even remotely, indicating that local anaesthesia was the cause for Myocardial infarction (heart attack). No expert was examined by the respondents in support of their contention that heart attack was on account of any negligence on the part of the appellant in performing surgery of deceased.
The version of appellant finds corroboration from the report of expert committee constituted at General Hospital, Kurukshetra and report of report of histopathologist. The injection mark on the chest indicates that he had made all efforts and tried to save the patient. The appellant is a qualified orthopaedic surgeon having vast experience in his sphere. The appellant completed the surgery with utmost care and professional skill. It is not the case of the respondents that the appellant did not possess the skill of doing operation as was done in the instant case. The authorities referred to above, are fully applicable in the instant case. No case of medical negligence and deficiency in services could be established by the respondent. The District Forum failed to appreciate the evidence available on the record and erred in allowing the complaint.
18. For the reasons recorded above, the appeal is accepted, impugned order is set aside and complaint is dismissed.
19. The statutory amount of Rs.25,000/-
deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.
Announced09.01.2015 (Diwan Singh Chauhan) Member (B.M. Bedi) Judicial Member (Nawab Singh) President CL