State Consumer Disputes Redressal Commission
Dr. C. Rahalkar vs Smt. Poornima Pandey & Ors. on 3 March, 2023
Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
AFR / NAFR
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Date of Institution: 29/06/2018
Date of Final Hearing: 06/02/2023
Date of Pronouncement: 03/03/2023
APPEAL No.- FA/18/629
IN THE MATTER OF :
Smt. Purnima Pandey, W/o. Shri Ramkumar Pandey,
R/o. Ward No.3, Sirgitti Basti,
Dist. BILASPUR (C.G.)
Through: Shri O. P. Agrawal, Advocate,
... Appellant.
Vs.
1. Dr. C. Rahalkar, S/o. Dr. G.K. Rahalkar,
R/o. Opp. Oriental Bank of Commerce,
Near Indu Chowk, Magarpara Road, Jarhabhatha,
BILASPUR (C.G.)
Through: Shri Mukesh Sharma, Advocate
... Respondent No.1.
2. Apollo Hospital, Bilaspur,
Through: Manager, Vill. Lingiyadih, Seepat Road,
BILASPUR (C.G.)
Through: Shri Alok Bakshi, Advocate
... Respondent No.2.
3. The Oriental Insurance Company Limited,
Rama Trade Centre, First Floor, Near Old Bus Stand,
Opp. Rajeev Plaza, BILASPUR (C.G.)
Through: Shri R.N. Pusty, Advocate
... Respondent No.3.
Date of Institution: 30/06/2018
Date of Final Hearing: 06/02/2023
Date of Pronouncement: 02/03/2023
APPEAL No.- FA/18/636
IN THE MATTER OF :
Dr. C. Rahalkar,
Endoscopy and Surgical Clinic,
Near Indu Chowk, Magarpara Road, Jarhabhatha,
P.S. Civil Lines, Bilaspur,
Dist.BILASPUR (C.G.)
Through: Shri Mukesh Sharma, Advocate,
... Appellant.
Vs.
1. Smt. Purnima Pandey, W/o. Shri Ramkumar Pandey,
R/o. Ward No.3, Sirgitti Basti, Sirgitti Bilaspur, P.S. Sirgitti,
Dist. BILASPUR (C.G.)
Through: Shri O. P. Agrawal, Advocate
... Respondent No.1.
FA/18/629 - Dismissed Page 1 of 16
FA/18/636 & FA/18/646- Allowed
Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
2. Apollo Hospital, Bilaspur,
Through: Manager, Vill. Lingiyadih, Seepat Road,
BILASPUR (C.G.)
Through: Shri Alok Bakshi, Advocate
... Respondent No.2.
3. The Oriental Insurance Company Limited,
Through: Divisional Manager, Rama Trade Centre,
Opp. Rajeev Plaza, BILASPUR (C.G.)
Through: Shri R. N. Pusty, Advocate
... Respondent No.3.
Date of Institution: 04/07/2018
Date of Final Hearing: 06/02/2023
Date of Pronouncement: 02/03/2023
APPEAL No.- FA/18/646
IN THE MATTER OF :
The Oriental Insurance Company Limited,
Through its Sr. Divisional Manager,
Divisional Office, Rama Trade Centre, First Floor, Near Old Bus Stand,
BILASPUR (C.G.)
Through: Shri R. N. Pusty, Advocate,
... Appellant.
Vs.
1. Smt. Purnima Pandey, W/o. Shri Ramkumar Pandey,
R/o. Ward No.3, Sirgitti Basti, Sirgitti Bilaspur, P.S. Sirgitti,
Dist. BILASPUR (C.G.)
Through: Shri O. P. Agrawal, Advocate
... Respondent No.1.
2. Dr. C. Rahalkar,
R/o. Opp. Oriental Bank of Commerce,
Near Indu Chowk, Magarpara Road, Jarhabhatha,
BILASPUR (C.G.)
Through: Shri O. P. Agrawal, Advocate
... Respondent No.2.
3. Apollo Hospital, Bilaspur,
Through: Manager, Vill. Lingiyadih, Seepat Road,
BILASPUR (C.G.)
Through: Shri Alok Bakshi, Advocate
... Respondent No.3.
CORAM: -
HON'BLE SHRI JUSTICE GAUTAM CHOURDIYA, PRESIDENT
HON'BLE SMT. RUCHI GOEL, MEMBER
PRESENT: -
Shri O. P. Agrawal, Advocate for the complainant.
Shri Mukesh Sharma, Advocate for the opposite party No.1.
Shri Alok Bakshi, Advocate for the opposite party No.2.
Shri R. N. Pusty, Advocate for the opposite party No.3.
JUDGEMENT
PER: - JUSTICE GAUTAM CHOURDIYA, PRESIDENT This order will govern disposal of Appeal Nos.FA/18/629, FA/18/636 & FA/18/646 filed under section 15 of the Consumer FA/18/629 - Dismissed Page 2 of 16 FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
Protection Act 1986 (hereinafter called "the Act" for short) as all these appeals have arisen out of the same order dated 04.06.2018 passed by District Consumer Disputes Redressal Forum, Bilaspur (hereinafter called "District Forum" for short) in Complaint Case No.CC/482/2016 whereby the complaint was allowed and opposite party Nos.1 & 3 were directed to pay jointly and severally Rs.10,00,000/- (Rupees Ten Lacs) with interest @ 9% p.a. from the date of complaint and cost of complaint Rs.5,000/- (Rupees Five Thousand) within one month from the dated of order. Being aggrieved the opposite party Nos.1 & 3 have come up before us by way of Appeal Nos.FA/18/636 & FA/18/646 respectively seeking relief of setting aside the impugned order and the complainant has filed Appeal No.FA/18/629 for enhancement of compensation awarded. Hereinafter in this order, for the purpose of convenience, the parties will be referred as per their original status before the District Forum. Original of this order be kept in the record of Appeal No.FA/18/629 and a copy thereof be placed in the record of Appeal Nos.FA/18/636 & FA/18/646.
2. Briefly stated the facts of the case are that the complainant approached the opposite party No.1 Dr. C. Rahalkar for treatment of her ailment. After necessary examinations the opposite party No.1 informed that there was problem in her uterus. She was advised for operation and for which he assured that appropriate facility is available in his Nursing Home. Believing the assurance the complainant given consent for the operation and on 01.04.2016 the operation of her uterus was done by the opposite party No.1. After the operation the complainant felt some discharge and mild abdominal pain. She informed the opposite party No.1 Doctor but he casually avoided this fact on the saying that it is mere false notion and discharged the complainant on 06.04.2016. All of a sudden on FA/18/629 - Dismissed Page 3 of 16 FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
07/04/2016 bleeding started from the operated area of the complainant and she was admitted in the Nursing Home of the opposite party No.1, where second operation was performed on 12.04.2016 / 14.04.2016. But even then her health condition could not improve and was being worsen with development of other physical problems. When her condition got very serious, the opposite party No.1 on 18.04.2016 referred her to Dr. Pawan Agrawal of Narayani Hospital Bilaspur, where she was kept in oxygen support and when no improvement in the condition of the complainant was seen, she was referred to opposite party No.2 Apollo Hospital Bilaspur. In Apollo Hospital she was kept on life support system and after necessary examinations she was operated upon on 20.04.2016. After the said operation it came into knowledge that due to negligence of the opposite party No.1 her intestine became obstructed and small hole was left at the operated area. She remained there in ICU till 24.04.2016. Due to negligence committed by the opposite party No.1 and because of his unsuccessful operation the complications increased she had to suffer lots of physical, mental and financial problems. Regarding opposite party No.2 she has not made any allegation and stated that for the sake of giving factual information the opposite party No.2 is incorporated as a party but she has no complaint against them. The opposite party No.3 is the insurance company who insured the risks of opposite party No.1 under PROFESSIONAL INDEMNITY - DOCTORS POLICY and thereby is liable jointly and severally with the opposite party No.1 to pay the compensation sought by the complainant. Alleging medical negligence and deficiency in service against the opposite party No.1 and seeking direction for the opposite party No.1 & 3 to pay the complainant jointly and severally compensation for physical and mental agony Rs.15,00,000/- (Fifteen Lacs) and Rs.4,50,000/- (Four Lacs Fifty Thousand) for the FA/18/629 - Dismissed Page 4 of 16 FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
financial loss in her treatment along with interest @ 12% p.a. and cost of litigation the complaint was filed.
3. The opposite party No.1 in its written version has taken preliminary objection that to prove allegation of medical negligence the complainant is required to show as to how the Doctor has not acted as per the standard procedure of practice and if so then the burden of proof is upon the complainant. It was also stated that the decision taken and the procedure adopted by the Doctor was as per the need of the situation and condition which cannot be termed as negligence. In para wise reply it was stated that in fact the complainant was having irregular menses since last one year for which she came to the opposite party No.1 in the month of February 2016 she was advised for blood test. She got her blood tested but did not came for operation. On 29.03.2016 she was admitted and her pre- operative tests were done by Dr. Vijay Kupatkar. He found her fit for the operation then on 01.04.2016 surgery was performed and she was discharged on 08.04.2016. On 14.04.2016 the complainant was again admitted with the complaint of abdominal pain. X-ray was done in which possibility of intestinal obstruction was found and after obtaining consent of husband of the complainant surgery was performed on 15.04.2016, but expected improvement was not seen and looking to the situation that the patient was in need of ventilator support, she was transferred to Narayani Multispeciality Hospital on 18.04.2016 from where she was transferred to Apollo Hospital and there also as per the treatment given by the opposite party No.1, the Doctors of Apollo Hospital treated the complainant. It has been clarified that facility of ICU was not available in the Hospital of the opposite party No.1 and when it was felt that ICU is necessary for the patient, the opposite party No.1 advised to transfer the patient to another FA/18/629 - Dismissed Page 5 of 16 FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
Hospital. On 27.04.2016 on the request of attendant of the complainant, she was again admitted in the Hospital of the opposite party and when condition became stable, she was discharged. With regard to the allegations of negligence in treatment of the complainant and deficiency in service it was stated that even after taking due care and precautions as per the prescribed norms and skill of the Doctor, some complications develops but for that deficiency in service cannot be attributed. He further averred that to indemnify the professional risks the opposite party No.1 obtained insurance cover from the Oriental Insurance Co. Ltd which is necessary party in this case. On the above grounds the opposite party No.1 prayed that the complaint be dismissed.
4. The respondent No.2 has also filed its written version and replied the complaint. But as in the complaint itself it has been stated that opposite party No.2 is impleaded only as a formal party to clarify the facts and no allegation is leveled against them the opposite party No.2 has just to clarify its position and facts of the case has filed a formal reply.
5. The opposite party No.3 The Oriental Insurance Co. Ltd. has also filed its written version and admitted the fact of issuance of insurance policy but has denied the liability in case of any medical negligence committed by the opposite party No.1.
6. Learned District Forum considering the rival contentions of all parties holding the opposite party No.1 negligent in treatment of the complainant and deficient in service has allowed the complaint and directed the opposite party Nos.1 & 3 to jointly and severally pay the amount as aforesaid in paragraph No.1.
FA/18/629 - Dismissed Page 6 of 16 FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
7. We have heard arguments advanced by all parties and perused the record of the District Forum as well as the written arguments filed by the complainant and opposite party No.1.
8. Learned District Forum, in the impugned order as described in paragraph Nos. 12, 13, 14 and 15, for concluding negligence on the part of the opposite party No.1 has based on the ground that only a gynecologist can decide whether uterus of a patient is to be removed or not and there is no any opinion taken by the opposite party No.1 regarding the removal of the uterus from any gynecologist, therefore it is an negligent act on the part of the opposite party No.1. In the opinion of expert committee also it is mentioned that no document of any opinion or any advice of gynecologist regarding the surgery performed by Dr. Rahalkar was submitted before the Committee for consideration therefore the expert committee had specifically mentioned there is no any document submitted of any advice of gynecologist obtained for operation of the complainant. Only on this ground that opinion of gynecologist was not taken negligence on the part of the opposite party No.1 was found and compensation is awarded in favour of the complainant.
9. It is not disputed by learned counsel for the complainant during the argument that when the complainant was admitted for surgery prior to that she was suffering from abdomen pain and irregular menses and prior to that she was also taking treatment of Dr. Mrs. A. Sehgal and this fact is also proved by document B-17 submitted before the District Forum in which patient name is mentioned as Mrs. Purnima Pandey referred by Dr. Mrs. A. Sehgal (DGO) on 22.01.2016 for USG Study of Pelvis (TAS). This document is a report issued by Dr. Mrs. Mamta Sahu, MBBS DMRD FA/18/629 - Dismissed Page 7 of 16 FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
Consulting Radiologist in which it has been mentioned that the patient was referred by Dr. Mrs. A. Sehgal. (DGO) and the impression was found "Bulky Uterus", "Right Bulky Ovary with Follicular Cyst Within" by Dr. Mrs. Mamta Sahu on 22.01.2016. It is a medical paper which shows that on 22.01.2016 and even prior to that the complainant was taking treatment from Dr. A. Sehgal and she referred her for USG Study of Pelvis to Dr. Mrs. Mamta Sahu and thereafter she was continuously suffering from abdomen pain as stated in Para No.1 of the complaint filed by the complainant. Before the operation the complainant was examined by Dr. Vijay Kupatkar also on 28.03.2016 for her pre-operative condition and she was found fit for the operation. Thereafter, she was operated by Dr. C. Rahalkar opposite paty No.1 on 01.04.2016 but after the surgery she was having mild pain in her abdomen and some discharge from the operated part. Thereafter, she was taking medicines as advised by the opposite party No.1. But when we considered the entire case of the complainant we find that she was suffering from uterus problem and cyst within and she was having continuous abdomen pain and also this fact is considered and examined by Dr. Vijay Kupatkar as mentioned in the complaint. The conclusion of the District Forum that she was not examined or treated by any gynecologist is not correct, because as per Document B-17, dated 22.01.2016 and even prior to that the complainant was taking treatment from Dr. A. Sehgal and she referred her for the USG Study of Pelvis (ATS) to Dr. Mrs. Mamta Sahu who found that the complainant was suffering "Bulky Uterus", "Right Bulky Ovary with Follicular Cyst Within". Dr. C. Rehalkar is the Surgeon having degree of M.S., Surgeon, Endoscopist & Oncologist; Ex-President : Jaslok Hospital Bombay; Fellow: Tata Memorial Hospital, Bombay; Surgeon : Cancer Hospital & Research Institute, Gwalior; Surgon: Padhar Hospital, Betul. Regarding the qualification of FA/18/629 - Dismissed Page 8 of 16 FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
the Doctor no any issue was raised by the complainant also in her complaint. Therefore, he cannot be said as incompetent person to perform surgery and he is a qualified Doctor for surgery.
10. As per the expert opinion of the two Doctors submitted before the District Forum only this fact is mentioned in Para No.1 that regarding the advise obtained from any gynecologist for the surgery performed by Dr. Rahalkar no document is enclosed in the provided documents. In Para Nos.02, 03, 04 & 05 the expert opinion was given by both the Doctors Dr. Sangeeta Raman Jogi, HoD Maternity and Gynecology and Dr. Anil Kumar Haripriya, HoD Surgey of Chhattisgarh Institute of Medical Science, Bilaspur (C.G.). On the basis of available documents the experts have specifically opined that as per the documents and treatment, the surgery performed by Dr. Rahalkar on 15.04.2016 is known complication of the surgery performed on 01.04.2016. In case of showing symptoms of ARDS/Leak the patient was in need of intensive care. The patient got relief from the treatment given in Apollo Hospital on 20.04.2016. They have also opined that it is true that in the instant case the known complication suffered by the patient is treated only on showing symptoms, which can be controlled by proper treatment. Thus as per the expert opinion the complication suffered by the complainant in the instant case was due to known complication of surgery. Therefore, no any allegation is leveled against the treating Dr. C. Rahalkar regarding the treatment given by him and procedure adopted by him. In the report of the Committee of Experts there is no any such comment that without report or advise of gynecologist the surgery ought not to have been done or by doing so any negligence has been committed by the opposite party No.1 Dr. C. Rahalkar. Otherwise also looking to the fact that FA/18/629 - Dismissed Page 9 of 16 FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
Dr. A. Sehgal, DGO referred the complainant for the USG Study of Pelvis (ATS) to Dr. Mrs. Mamta Sahu and her report we are satisfied that necessary diagnosis and impression was already there.
11. It is quite pertinent and necessary to mention here the principle laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab & Anr. III (2005) CPJ 9 (SC); and Kusum Sharma Vs. Batra Hospital I (2009) CPJ 29 (SC). The Hon'ble Apex Court in the case of Kusum Sharma (supra) in Para No.94 has settled the principle to determine and decide the medical negligence cases, after scrutiny of leading cases of medical negligence in our country as well as other countries especially United Kingdom as under : -
"94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised 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.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring 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.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.FA/18/629 - Dismissed Page 10 of 16
FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
In the Para No.90 of the above cited judgement, the Hon'ble Supreme Court has also discussed it's previous judgement in the case of the Jacob Mathew's case (supra) as under : -
"90. In Jacob Mathew‟s case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. FA/18/629 - Dismissed Page 11 of 16 FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
Singh) referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: „duty‟, „breach‟ and „resulting damage‟.
(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.
(3) 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.
Hon'ble National Commission in its recent judgement dated 22nd December 2022 in Consumer Case No.361 of 2001, Smt. Mamta Agarwal & Ors. Vs. Bombay Hospital Medical Research Centre & Ors. in the similar circumstance, as in the present case that opinion of experts were available in favour of the Doctors and the complainant did not file any expert opinion or medical literature to support his allegations, citing the recent judgements of Hon'ble Apex Court has held in paragraph No.22 as under : -
"22. The Hon‟ble Supreme Court in the case S. K. Jhunjhunwala vs. Dhanwanti Kaur and Another[8] held that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was FA/18/629 - Dismissed Page 12 of 16 FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
negligent. Recently in the case of Dr. (Mrs.) Chanda Rani Akhouri & Ors. Vs Dr. MA Methusethupathi & Ors.[9]. It was observed that:
"it clearly emerges from the exposition of law that a medical practitioner is not to be held liable 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."
We have also gone through the judgements of Hon'ble Apex Court in the case of S. K. Jhunjhunwala vs. Dhanwanti Kaur and Another, (2019) 2 SCC 282; Dr. (Mrs.)Chanda Rani Akhouri & Ors. Vs Dr. MA Methusethupathi & Ors. 2022 LiveLaw (SC) 391 cited by the Hon'ble National Commission in the above cited judgement and respectfully concur with the principle laid down in those cases.
12. As per Dr. Mrs. Mamta Sahu's diagnostic report the complainant was suffering "Bulky Uterus", "Right Bulky Ovary with Follicular Cyst Within", therefore prior to the operation performed by Dr. C. Rahalkar opposite party No.1, the patient was being treated by medicine also as per Dr. Vijay Kupatkar prescription mentioned in Document B-15, he found the patient fit for surgery. Dr. Vijay Kupatkar is MD (Medicine) Consulting Physician and the qualification of Dr. Vijay Kupatkar is also not under challenge. Looking to the Document Nos.B-15, B-16, B-17 and B-18 the surgery was suggested by the Doctor and considering the cyst and continuous problem from the date prior to 22.01.2016 till the date of her operation. First the complainant was admitted to the opposite party No.1 on 29.03.2016, operation was performed on 01.04.2016 and was discharged on 08.04.2016 as per the Consent Form document No.B-1 in which in Hindi it has clearly been mentioned that the fact that uterus of the complainant will removed was explained to the complainant and her husband, they both have signed the consent form too. For the second FA/18/629 - Dismissed Page 13 of 16 FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
operation the complainant was admitted in the Hospital on 14.04.2016 and her operation was done on 15.04.2016 and was discharged on 18.04.2016. Prior to operation also consent was taken from husband of the complainant Ram Kumar Pandey Document No.B-20. It means the complainant was suffering from continuous abdomen pain since a long time. She was examined first by Dr. A. Sehgal who referred the patient for USG Study of Pelvis (ATS) to Dr. Mrs. Mamta Sahu, in which "Bulky Uterus", "Right Bulky Ovary with Follicular Cyst Within" was found and thereafter was sent to Dr. Vijay Kupatkar for pre-operation fitness test, who found her fit for surgery then surgery was done by opposite party No.1.
13. As per Document A-7 i.e. Discharge Card of the opposite party No.1, Dr. C. Rahalkar is M.S., Surgeon, Endoscopist & Oncologist; Ex- President : Jaslok Hospital Bombay; Fellow: Tata Memorial Hospital, Bombay; Surgeon : Cancer Hospital & Research Institute, Gwalior; Surgon: Padhar Hospital, Betul and the document filed with written arguments also shows that Dr. C. Rahalkar was working with Dr. M. R. Kamat, MS FICS FCPS, Chief, Department of Urology and Gynec Oncology in Tata Memorial Hospital, Bombay. This document is filed during the appeal but in the document No.A-7 also there in record which has mention of the fact that he was Fellow at Tata Memorial Hospital Bombay as certified by Dr. M.R. Kamat also. Therefore, qualification of Dr. C. Rahalkar is neither under challenge by the complainant nor is doubtful that he is an expert and Surgeon who can do any surgery regarding the uterus if required and a M.S. Dr. Rahalkar was competent to do that operation and prior to the operation performed by him document A-7, as referred by Dr. C. Rahalkar.
FA/18/629 - Dismissed Page 14 of 16 FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
14. All the requisite tests were conducted by SRL Diagnostics and report was given which are A-1, A-2, A-3, A-4 and A-5 report of Dr. Vijay Kupatkar and dated 31.03.2016 diagnosis was mentioned on the discharge ticket as FUB, L Ovarian Cyst. The patient was admitted with complaints of USG Bulky Uterus. Looking to the entire document A-7, A-9, A-10 of Narayani Multispeciality Hospital and Apollo Hospital Bilaspur Discharge Summary there is no any reason or fact mentioned regarding any negligence was committed by the opposite party No.1 and looking to the expert opinion also no any medical negligence was committed by the opposite party No.1.
15. No any evidence is adduced by the complainant that unnecessarily uterus was removed by the opposite party No.1. Any negligent on the part of the opposite party No.1 is not proved according to the judgement and principle laid down by the Hon'ble Apex Court in the judgement of Jacob Mathew (supra) & Kusum Sharma (supra) cases. As per the expert opinion the document is not provided regarding the any advice of gynecologist but as per report of Dr. Mrs. Mamta Sahu the complainant was referred by Dr. A. Sehgal, DGO who was treating the complainant prior to the operation in question. Therefore, the conclusion of the District Forum that without any reason uterus was removed is also not correct. Looking to the entire documents the experts of the committee of experts have opined that the problems suffered by the complainant was a known complication of the first surgery and there was no any fault or negligence on the part of the opposite party No.1. Therefore the appeal filed by the complainant for enhancement of compensation is not sustainable because no negligence could be proved by the complainant.
FA/18/629 - Dismissed Page 15 of 16 FA/18/636 & FA/18/646- Allowed Appeal Nos.: Smt. Purnima Pandey Vs. Dr. C. Rahalkar & Ors. Date of Pronouncement:
FA/18/629 03/03/2023
Dr. C. Rahalkar Vs. Smt. Purnima Pandey & Ors.
FA/18/636
FA/18/646 The Oriental Insurance Co. Ltd. Vs. Smt. Purnima Pandey & Ors.
16. Therefore with the foregoing discussion in the light of law laid down by the Hon'ble Apex Court, we are of the considered view that learned District Forum has erroneously held the opposite party No.1 Doctor to have committed medical negligence and deficiency in service, which is liable to be and is hereby set aside. Appeal filed by the opposite party No.1 and 3 is allowed. The complaint and the appeal of the complainant for enhancement of compensation are dismissed accordingly. No order as to cost.
(Justice Gautam Chourdiya) (Smt. Ruchi Goel)
President Member
/03/2023 /03/2023
Pronounced On: 03rd March 2023
FA/18/629 - Dismissed Page 16 of 16
FA/18/636 & FA/18/646- Allowed