State Consumer Disputes Redressal Commission
Dr. H.R. Nayyar Memorial Hospital vs Gurbachan Singh Bhatia on 5 October, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.821 of 2004
Date of institution : 16.7.2004
Date of decision : 05.10.2010
1. Dr. H.R. Nayyar Memorial Hospital, 3, Dasondna Singh Road, Amritsar
through its Proprietor M/s Nayyar Medical Centre Private Limited through
its Managing Director/Director/Principal Officer Dr. Nayyar.
2. Dr. J.P. Singh Chhina c/o Dr. H.R. Nayyar Memorial Hospital, 3,
Dasondna Singh Road, Amritsar.
.......Appellants
Versus
1. Gurbachan Singh Bhatia (since deceased) now represented through his
legal heirs:-
(a) Smt. Surinder Kanta (widow), resident of House No.61/9, Gali No.2,
Gate Bhagtanwala Amritsar.
(b) Jatinder Kumar (son), resident of House No.61/9, Gali No.2, Gate
Bhagtanwala Amritsar.
(c) Gulshan Kumar (son), resident of House No.61/9, Gali No.2, Gate
Bhagtanwala Amritsar.
(d) Rajiv Kumar (son), resident of House No.61/9, Gali No.2, Gate
Bhagtanwala Amritsar.
(e) Sangeeta Vermani (daughter), resident of House No.61/9, Gali No.2,
Gate Bhagtanwala Amritsar.
2. Dr. Arvind Sharma c/o Dr. H.R. Nayyar Memorial Hospital, 3, Dasonda
Singh Road, Amritsar.
3. Dr. Haman Chatrath, c/o Dr. H.R. Nayyar Memorial Hospital, 3, Dasonda
Singh Road, Amritsar.
First Appeal No.821 of 2004. 2
4. Dr. Preeti, c/o Dr. H.R. Nayyar Memorial Hospital, 3, Dasonda Singh
Road, Amritsar.
5. United India Insurance Company Ltd., 26, Dharam Singh Market, IInd
Floor, Amritsar.
......Respondents
First Appeal against the order dated 2.6.2004 of the
District Consumer Disputes Redressal Forum,
Amritsar.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Lt. Col. Darshan Singh (Retd.), Member.
Mrs. Amarpreet Sharma, Member.
Present :-
For the appellants : Dr. Balram Gupta, Senior Advocate with Shri Shireesh Gupta, Advocate.
For respondent No.1(a) to 1(e) : Shri V.P. Singh, Advocate.
For respondent No.2 to 4 : Ex parte.
For respondent No.5 : Shri R.K. Bashamboo, Advocate.
JUSTICE S.N. AGGARWAL, PRESIDENT:
The point to be decided in this appeal is whether the appellants had committed medical negligence while treating Gurbachan Singh Bhatia (now deceased) [now represented through his legal heirs i.e. respondent No.1(a) to respondent No.1(e)] (in short "the complainant")?
2. It was pleaded in the complaint filed by the complainant that he was having pain in the right knee while moving and walking. The complainant went to appellant No.1 who was the proprietor of Dr. H.R. Nayyar Memorial Hospital appellant No.1. The appellants advised the complainant that his right knee needed replacement. The complainant was assured that after knee replacement, he would be relieved from pain and there would be no difficulty in moving and walking. He would be able to lead a normal life. The complainant believed these assurances given by the appellants and agreed to get the knee replacement done from the appellants. Accordingly the complainant was admitted in the appellant Hospital on 10.6.2002.
First Appeal No.821 of 2004. 3
3. It was further pleaded that on the advice of the appellants, the complainant purchased PFC SIGMA FEMORAL COMP SZ 2 R, TIBIAL TRAY SZ 2.5 MM, TIBIA INSERT 2.5 X 8 MM, BONE CEMENT from M/s Arya Muni & Co. (Surgical), 77, Hall Bazar, Amritsar for a sum of Rs.78,499.20P. The complainant was 70 years old. The appellants did not bother to get the pre- operative medical tests done on the complainant before the performance of the surgical operation. However minor observation was recorded by the appellants on 10.6.2002 to the effect 'Heart size top normal. B.V. markings prominent both lungs. Both hiter roots prominent. CPLs clear.' The consent of the complainant was not taken before operating him.
4. It was further pleaded that the complainant was subjected to operation in a haphazardous manner by which the complainant had become crippled altogether. The complainant had deposited a sum of Rs.29,000/- with the appellants as demanded vide cash memo dated 19.6.2002. The complainant spent an amount of Rs.1.5 lacs approximately in the appellant hospital. Instead of getting recovered, the complainant faced worst condition because of the medical negligence committed by the appellants while medically treating and operating the complainant. Although Dr. J.P.S. Chhina appellant No.2 was required to pay personal attention to the complainant after the surgery but he also failed to provide necessary supervision post operation. Respondents No.2 to 4 also did not attend the complainant.
5. It was further pleaded that as a result of the medical negligence committed by the appellants and by respondents No.2 to 4, the complainant was suffering from severe pain in his body. There was swelling in his right leg. The knee was not set right by a skillful operation. The complainant was at the mercy of his son and other attendants even for answering the call of nature. The sole responsibility of this pathetic condition of the complainant vested on the shoulders of the appellants. The condition of the complainant had become miserable. First Appeal No.821 of 2004. 4
6. It was further pleaded that after his discharge from the appellant Hospital, the complainant remained complaining about the acute pain but appellant No.1 expressed his helplessness in this regard. The complainant had to consult another doctor in Amandeep Hospital, Amritsar. The complainant was advised complete scanning from Advanced Diagnostic Centre. The complainant went to the said Centre on 4.12.2002 and Dr. Atul Kapur of that Diagnostic Centre made adverse comments on the medical treatment given to the complainant by the appellants.
7. It was further pleaded that after getting the report from Advanced Diagnostic Centre, the complainant was referred to Christian Medical College and Hospital, Ludhiana (in short "CMC") on 21.12.2002. He was attended by Dr. Bobby John who advised medical tests of DLC, ESR, HB, TLC, Blood Sugar, Blood Urea, Bone Chemistry and CRP. The tests were got done by the complainant on 21.12.2002 itself. After examining the medical test reports, the doctor of CMC opined that medical negligence was committed by the appellants while conducting the knee replacement of the complainant. It was done in a careless and unskilled manner. As a result, the knee had not been set right at its proper place and for that reason the complainant could not be relieved of his pain. The complainant was also informed that he could not be relieved of his pain unless and until further surgical investigation was undertaken.
8. It was further pleaded that the appellants had robbed the complainant of his money and his life was made meaningless and miserable. The complainant was undergoing mental torture because of acute pain and inability to move. Hence the complaint for compensation to the tune of Rs.3 lacs and reimbursement of Rs.1.5 lacs spent on medical treatment. Interest and costs were also prayed.
9. The appellants and respondents No.2 to 4 filed a joint written statement. It was pleaded that the complainant had come to the appellants with pain in the right knee. He was diagnosed to be a case of Osteo Arthritis Right Knee. The complainant had already shortening and deformity of the left lower limb and was unable to bear weight on left side. The complainant was advised total knee First Appeal No.821 of 2004. 5 replacement. All the complications were duly explained to him. Since the complainant had problem of the left leg he was also warned for following post operative instructions religiously.
10. It was, however, denied if appellant no.1 had given any assurance to the complainant that after operation, he would lead a normal life or if he would be able to stand erect or if he would move like a penguin. There was already shortening and deformity of the left lower limb of the complainant. Therefore no such assurance could be given to him. It was pleaded that the complainant was informed about the advantages and complications of the total knee replacement. He was explained all plus and minus points of total knee replacement. It was the personal decision of the complainant to go in for total knee replacement.
11. It was not denied that the complainant was admitted in the appellant hospital by appellant no.1 on 10.6.2002 but it was denied if the complainant was operated by him negligently or carelessly. The operation was performed in one of the best set ups in the city with all due care and by taking all possible precautions. It was denied if the complainant was asked to purchase the implant from a particular dealer or shop. On the asking of the complainant that he wanted the best piece, appellant no.2 had recommended to purchase the implant which was manufactured by Orthopaedics Inc. a subsidiary of Johnson and Johnson as it was enjoying the best reputation. It was available only with M/s Arya Muni & Co. (Surgical), 77, Hall Bazar, Amritsar as this firm was the only dealer of that Company in the town. The complainant could purchase this implant from anywhere else. It was denied if the appellants had directed the complainant to purchase the implant from M/s Arya Muni and Company. They had no mala fide intention to recommend to the complainant for the purchase of implant from M/s Arya Muni and Company, Amritsar.
12. It was further pleaded that appellant No.2 had observed all the formalities and the complainant was subjected to all those medical tests which were required before surgery. Appellant No.2 had satisfied himself that the complainant was fit First Appeal No.821 of 2004. 6 for surgery. Appellant No.2 was in no hurry to perform the operation. Before the complainant was operated, he was medically examined by a medical expert and by an anaesthetist who declared the complainant fit for surgery. Only thereafter the surgery was performed on the complainant.
13. It was further pleaded that the observations made on 10.6.2002 relating to B.V. markings were radiological findings given by x-ray specialist. The complainant was clinically examined by Dr. Arvind Sharma respondent No.2 who was the medical specialist and by Dr. Raman Chatrath respondent No.3 who was specialist in anaesthesia. It was done before surgery and the complainant was declared fit for surgery. The ECG of the complainant was normal. There was no contra-indication for surgery of knee replacement. It was denied if Dr. Arvind Sharma, Dr. Raman Chatrath and Dr. Preeti respondents No.2 to 4 had not attended the complainant properly during the period of his admission in the hospital for the period from 10.6.2002 to 19.6.2002. It was also denied if appellant No.2 had not attended the complainant properly after surgery or if he had failed to provide necessary supervision after the operation. It was denied if the operation was performed in haphazardous manner or if the complainant had become crippled. It was pleaded that a sum of Rs.29,000/- was charged from the complainant which was inclusive of surgeon fee.
14. It was denied if the condition of the complainant had worsened due to the alleged medical negligence committed by appellant No.2 in the appellant hospital. It was also denied if the complainant was suffering from severe pain or if there was swelling on his right leg or if his right knee was not set right by skillful operation. Dr. Chhina appellant no.2 was the most experienced specialist for knee replacement. It was denied if the appellants or respondents No.2 to 4 were responsible for the bad condition of the complainant.
15. It was further pleaded that the complainant had never come to appellant No.2 with the complaint of acute pain after the operation or if appellant No.2 had expressed his helplessness in this regard. Rather the complainant had come to First Appeal No.821 of 2004. 7 appellant No.2 only once and that too with a complaint of breathlessness for which he (complainant) was already having treatment from various doctors even before his surgery/knee replacement. He had no pain in his knee at that time. Rather he had come walking.
16. It was further pleaded that radio lucency was not an indication of clinical lucency. Partial lucency could get filled up with bone growth with weight bearing. Radiological loosening mild or early was not an indication of clinical loosening or revision. There was nothing in the scan report which pointed out to any negligence or incompetency on the part of the appellants.
17. It was further pleaded that the complainant had not placed on the file any expert opinion of the doctor of CMC if the operation was done in a negligent or careless manner or if the knee was not set right at its proper place. It was also denied if the complainant was suffering from pain after the operation as much as he had before the operation or if the pain needed further surgical intervention. It was also denied if the complainant was robbed of his money or if his life had become meaningless due to alleged negligence of the appellants. It was also denied if surgery had caused physical pain, mental torture or agony to the complainant or if the complainant was entitled to compensation, interest and costs. Dismissal of the complaint was prayed.
18. The United India Insurance Company Ltd. was also impleaded as respondent No.6. The appellants had taken the Professional Indemnity Insurance policy from the said Insurance Company for the period from 21.5.2002 to 20.5.2003. In the written statement filed by the Insurance Company it was admitted that the appellant Hospital was insured with the respondent Insurance Company but it was denied if the complainant was entitled to any compensation. Dismissal of the complaint was prayed.
19. The complainant filed his affidavit Ex.C-1. He also proved documents Ex.C-2 to Ex.C-16. The complainant also appeared in the witness box as his own witness.
First Appeal No.821 of 2004. 8
20. On the other hand, the appellants proved documents Ex.R-1 and Ex.R-2. Dr. Joginder Pal Singh Chhina appellant No.2 filed his affidavit Ex.R-3. Dr. J.P.S. Chhina also appeared in the witness box. The appellants also proved the insurance policy as Ex.R-3 (doubly marked). The Insurance Company proved the copy of the insurance policy Ex.R-4.
21. The complainant was subjected to cross-examination and was cross- examined at length. Dr. J.P.S. Chhina appellant no.2 was also subjected to cross- examination and he was cross-examined at length.
22. Learned District Forum partly accepted the complaint with costs of Rs.1,000/- vide impugned judgment dated 2.6.2004. The appellants were directed to refund the amount of Rs.1,07,499/- to the complainant with interest at the rate of 9% per annum. The complainant was granted compensation to the tune of Rs.2,00,000/- with interest at the rate of 9% per annum.
23. Hence this appeal.
24. The submission of the learned counsel for the appellants was that the appeal be accepted and the impugned judgment dated 2.6.2004 be set aside.
25. On the other hand, the submission of the learned counsel for respondents No.1(a) to 1(e) was that there was no merit in the present appeal and the same be dismissed.
26. The submission of learned counsel for respondent No.5 was also that the appeal be accepted and the impugned judgment dated 2.6.2004 be set aside.
27. Record has been perused. Submissions have been considered.
28. The admitted facts are that the complainant had come to the appellant hospital with the complaint of pain in the right knee. He was advised total knee replacement of his right knee. The complainant was admitted in the appellant hospital on 10.6.2002 for this purpose.
29. The complainant had also placed on the file the report of ultra-sound and x- ray dated 10.6.2002 as Ex.C-8 to the effect that heart size of the complainant was top normal, B.V. markings were prominent of both the lungs. Both hiter roots First Appeal No.821 of 2004. 9 were prominent and CLPs were clear. This reveals therefore that the complainant was subjected to ultra-sound and x-ray.
30. It is also proved that the complainant had deposited a sum of Rs.29,000/- with the appellants on 19.6.2002 for which receipt Ex.C-3 has been proved by the complainant.
31. The complainant had purchased the knee implant from M/s Arya Muni & Co. (Surgical), Amritsar for a sum of Rs.78,499.20P for which receipt Ex.C-9 has been proved. The appellants have admitted that on the enquiry by the complainant that he wanted to purchase the best knee implant, appellant no.2 had advised him to purchase the implant manufactured by Orthopaedics Inc. which was a subsidiary of Johnson and Johnson. It was available only with M/s Arya Muni & Company (Surgical), Amritsar. This, therefore, reveals that since the complainant wanted to have the best implant only, then it was told to him by the appellants that the implant of Johnson and Johnson was the best and that was available only with M/s Muni Arya and Company (Surgical), Amritsar.
32. The bed head ticket/treatment chart of the complainant in the appellant hospital has been placed on the file by the appellants as Ex.R-1 in which the age of the complainant was recorded as 70 years. It reveals that Gulshan Kumar respondent son of the complainant had given the consent for the medical tests/medical treatment of the complainant on 10.6.2002. The complainant was also subjected to medical tests. This medical record also reveals that the findings on the person of the complainant were recorded before starting the operation. It also reveals that the complainant was attended from time to time on every day and a number of times a day.
33. In the cross-examination of the complainant dated 9.1.2004 which was recorded through the local commissioner, the complainant had admitted that he had voluntarily agreed for total knee replacement from Dr. J.P.S. Chhina appellant No.2. He also admitted that Gulshan Kumar was his son and he admitted the signatures of his son Gulshan Kumar in the history record Ex.R-1. It First Appeal No.821 of 2004. 10 means, therefore, that the complainant had voluntarily taken admission in the appellant hospital and had voluntarily agreed for total knee replacement of his right knee.
34. The submission of the learned counsel for respondents No.1(a) to 1(e) was that the complainant had got himself subjected to various tests on 4.12.2002 from the Advanced Diagnostics and the report given by Dr. Atul Kapur has been placed on the file as Ex.C-2. It reads as under:-
"STUDY: Plain Volume scan of the right knee done using neutral and medial and lateral dynamic stress spiral sections. OBSERVATIONS:
The right knee joint shows presence of normal visualization of the femoral the tibial components of the knee prosthesis with the post stress images showing presence of mild loosening of the stem of the tibial component with a peri-prosthetic lucency of 9 mm on the lateral side on the lateral stress views. This on the medial stress views increases & measures as 17 mm.
No other collection or bony erosion is seen. CONCLUSION: MILD/ERLY LOOSENING OF THE TIBIAL COMPONENT OF KNEE PROSTHESIS ON THE LATERAL ASPECT."
35. It was submitted that this report was sufficient to prove that there was mild loosening of the tibial component of knee prosthesis on the lateral aspect which means that the knee replacement done by appellant no.2 was not proper and it suffered from medical negligence.
36. This submission has been considered.
37. This ultrafast report dated 4.12.2002 Ex.C-2 produced by the complainant nowhere indicates the mild loosening was for the reason that the knee replacement was not done properly. There can be various reasons why the mild loosening was noticed on 4.12.2002. It can be because of the low healing power in old age of First Appeal No.821 of 2004. 11 the complainant or because he had not carried out proper exercises of his knee. The knee replacement does not in itself provide the remedy for the pain but it has also to be followed by the routine exercises by the person who has got done the knee replacement of his knee. Therefore medical negligence on the part of the appellants cannot be presumed on the basis of report Ex.C-2. Dr. J.P.S. Chhina respondent No.2 has filed his affidavit Ex.R-3. He has deposed in para 4 of his affidavit as under:-
"In so far as report of the scanning is concerned, it may be submitted that Radio Lucency can get filled up with bone growth with weight bearing. Radiological loosening mild/early is not an indication of clinical loosening or for revision. Radio Lucency has to be progressive over a period of time and only then it is of any importance. Thus, there is nothing in the report of the scan which points out to any negligence or incompetency on the part of surgeon or other replying parties."
38. It means, therefore, that the mild loosening was not because of any medical negligence.
39. The next submission of the learned counsel for respondents No.1(a) to 1(e) was that the complainant had got himself subjected to scintigraphy test and the report dated 23.5.2003 has been proved as Ex.C-14. It reads as under:-
" SCINTIGRAPHY REPORT STUDY:- 3 phase bone scan was performed after iv injection of 15 Mci of TC-99m-MDP.
Dynamic vascular flow images were obtained immediate post injn. And 5 min. later a blood pool image was obtained for knees. Whole body imaging was performed in ant. And posterior views 3 hours later.
FINDINGS:- The vascular flow images show mildly increased blood flow to the region around right knee joint more so at the tibial end. First Appeal No.821 of 2004. 12 Blood pool images also increased tracer concentration in the above region.
Delayed static images of the knees also shows similar increased tracer uptake esp. at the tibial end.
IMPRESSION: 3 Phase bond scan findings are suggestive of mild infective pathology around the right knee."
40. This medical test was got conducted by the complainant after about 11 months. The mild loosening of the tibial component which was noticed by the diagnostic report on 4.12.2002 Ex.C2 was not reported in the medical test report dated 23.5.2003 Ex.C-14. It means, therefore, that the mild tibial loosening was not attributable to the medical negligence. If it had been because of that reason then the mild loosening could not have disappeared in the diagnostic report dated 23.5.2003 (Ex.C-14).
41. This report dated 23.5.2003 Ex.C-14 reveals that there was mild ineffective pathology around the right knee. This report, therefore, also does not prove medical negligence because the mild infection was not there when the complainant had got himself subjected to medical tests on 4.12.2002 Ex.C-2.
42. Dr. J.P.S. Chhina appellant no.2 in para 5 of his affidavit Ex.R-3 has deposed as under:-
"5. That the alleged complaint of the complainant in this complaint falls within the known complications of Total Knee Replacement as per authentic books on the subject which were duly explained to the complainant before surgery. It is documented that amongst the complications of Total Knee Replacement (TKR) there may be loosening of implant in 7% to 13% of the patients, infection may occur in 3% of the cases, septic loosening may be there in 3% cases. Flexion deformity may occur in 5 to 11% of cases and Revision TKR is indicated in 13% of cases in the first 5 years, and in 18% of cases in first 10 years and in 30% cases in the first 15 years. First Appeal No.821 of 2004. 13 The problems stated to have arisen in case of complainant falls within these known complications which are documented and complainant having consented for the surgery/treatment after knowing well (as these were duly explained to the complainant before surgery) these complications, cannot blame me or the replying parties for any deficiency in service or negligence which was not there."
43. Therefore these developments noticed in the report dated 4.12.2002 (Ex.C2) and in the report dated 23.5.2003 (Ex.C-14) were subsequent developments after the knee replacement and not because of any negligence committed at the time of knee replacement. Therefore none of these reports proves the medical negligence on the part of appellant no.2 at the time of knee replacement which had taken place on 10.6.2002.
44. In this context reference can be made to the cross-examination of the complainant dated 9.1.2004 which was recorded through the local commissioner. The complainant had admitted in the cross-examination that he had undergone surgery of his left leg about 27/28 years ago from Dr. Hardas Singh. It was also admitted that due to the surgery there was shortening in size of his left leg. It means, therefore, that at the time when the right knee of the complainant was replaced on 10.6.2002 the left leg of the complainant was already shortened and, therefore, he was not in a position to walk properly. Although he had denied originally if there was shortening of the left leg prior to the treatment of his right leg or if he used to walk with a limp in his left leg yet later on he admitted it. In one paragraph he had denied the shortening of his left leg and in the other he had admitted. Dr. J.P.S. Chhina in para 6 of his affidavit Ex.R-3 deposed as under:-
"6. That the complainant when he came for treatment to the replying parties, already had shortening and deformity of the left lower limb and was unable to bear weight on the left side. He did not go in for physiotherapy despite advice and also did not adhere to First Appeal No.821 of 2004. 14 my instructions as regards weight bearing in so far as post operative care is concerned. Accordingly, he (the complainant himself) is responsible for the trouble, if any, that he is having."
45. It means, therefore, that the shortening of left leg which was already in existence prior to knee replacement was also one of the reasons for the complainant for his miserable life. The pain in his right leg after knee replacement could also be because of the reason that the complainant did not carry out the exercises. The exercises were necessary for the restoration of normalcy of his right leg.
46. Moreover the complainant in his cross-examination has also admitted that he started feeling pain in his right leg in the month of April 2003 and prior to that he was alright. He further said that he had no pain in his joints except in his right knee joint. It was a mild pain. It means, therefore, that the complainant was not having pain in his right leg immediately after the knee replacement on 10.6.2002. He developed pain only in April 2003 but the complaint was filed by the complainant against the appellants in January 2003. It means, therefore, that the complaint was filed by the complainant against the appellants even before he had pain in the right leg.
47. The complainant has also admitted in the cross-examination that he had gone to Amandeep Hospital for medical checkup. He was checked by Dr. Avtar Singh and Dr. Parkash Singh Dhillon. Dr. Avtar Singh told him that the knee replacement was not correctly done and it was on the basis of the opinion of Dr. Avtar Singh that the complainant had filed the complaint against the appellants alleging that the knee replacement was not properly done.
48. He also admitted that he cannot say of his own if there was any shortcoming in the performance of surgery of his right knee by appellant no.2 and that he had filed the complaint against the appellants on the opinion of Dr. Avtar Singh. He also admitted in his cross-examination that he had no grouse against the appellants or against respondents No.2 to 4.
First Appeal No.821 of 2004. 15
49. Moreover Dr. J.P.S. Chhina in his affidavit Ex.R-3 deposed about his qualification as under:-
"1. That I am M.B.B.S. M.S. (Orthopaedics). I retired in 1999 as Professor and Head, Department of Orthopaedics S.G.T.B. Hospital/Medical College Amritsar. I have over 39 years of experience in conducting Orthopaedic Surgery. I am doing Total Knee Replacement since 1987. I have so far successfully conducted over 200 TKR operations and have so far trained 71 M.S. Students. I am member American Academy of Orthopaedic Surgeons, Member AFICOT (France), SICOT (Belgium), IGOF (Germany), AOASIF (Switzerland). Besides, I have been President, Indian Orthopaedic Association, Punjab Orthopaedic Association and Founder Member of Indian Orthoplasty Association."
50. This averment, therefore, clearly reveals that Dr. J.P.S. Chhina was a duly qualified doctor. He had a lot of experience and he was competent for surgery of knee replacement.
51. In this context, reference can be made to the recent judgment of the Hon'ble Supreme Court reported as "Martin F. D'souza v. Mohd. Ishfaq", 2009 CTJ 352 (Supreme Court) (CP) in which the Hon'ble Supreme Court was pleased to observe as under : -
"41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.
He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient First Appeal No.821 of 2004. 16 after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade."
52. It was also held by the Hon'ble Supreme Court in the aforesaid judgment as under:-
"47. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
53. It was also held by the Hon'ble Supreme Court in the aforesaid judgment as under:-
"49.When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions." First Appeal No.821 of 2004. 17
54. The onus to prove medical negligence is onerous as it is different from proving deficiency in service which could be presumed even from the document or facts and circumstances of a case.
55. It was held by the Hon'ble Supreme Court in the judgment reported as "MALAY KUMAR GANGULY v. SUKUMAR MUKHERJEE (DR.) & ORS." III(2009) CPJ 17 (SC) as under:-
"35. Charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error of judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis.
36. Even under the law of tort a medical practitioner can only be held liable in respect of an erroneous diagnosis if his error is so palpably wrong as to prove by itself that it was negligently arrived at or it was the product of absence of reasonable skill and care on his part regard being had to the ordinary level of skill in the profession. For fastening criminal liability very high degree of such negligence is required to be proved.
37. Death is the ultimate result of all serious ailments and the doctors are there to save the victims from such ailments. Experience and expertise of a doctor are utilized for the recovery. But it is not First Appeal No.821 of 2004. 18 expected that in case of all ailments the doctor can give guarantee of cure."
56. It was held by this Commission in the judgment dated 22.1.2008 passed in First Appeal No.1038 of 2000 "Partap Singh v. Sahib Nursing Home & Surgical Centre and others" that a doctor no doubt can play havoc with the life of another by medical negligence, but the doctor cannot be dubbed as negligent wherever the things go wrong because of God's will or for other factors. Finding fault with the doctor without any evidence would not only defame the medical profession which is otherwise very noble but the society will also lose the compassion of the saviour i.e. of the doctor who is considered next to God.
57. Thus, it is not proved if there was any medical negligence on the part of the appellants when the replacement of his right knee was done by them on 10.6.2002.
58. Keeping in view the discussion held above, this appeal is accepted and the impugned judgment dated 2.6.2004 is set aside.
59. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 16.7.2004. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days.
60. The arguments in this case were heard on 24.9.2010 and the order was reserved. Now, the order be communicated to the parties.
61. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(LT. COL. DARSHAN SINGH [RETD.])
MEMBER
October 05 , 2010 (MRS. AMARPREET SHARMA)
Bansal MEMBER
First Appeal No.821 of 2004. 19