State Consumer Disputes Redressal Commission
Dr Victo Wotsa vs Chemkai Konyak & 2 Ors on 22 April, 2023
NAGALAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION
KOHIMA, NAGALAND
First Appeal No 1(K) 2019
Arising out of CFD No 20/16
Dr. Victo Wotsa
Managing Director,
M/S Nikos Hospital + Research Centre,
Dimapur, Nagaland
Appellant
-vs-
1.Shri Chemkai Konyak S/O Yeangkup Konyak R/O Walford Area, Dimapur, Nagaland Respondent
2. The Nagaland Health Care Establishment Authority, represented by the Chairman, the Secretary of Health and Family welfare, Government of Nagaland.
3. District Hospital Dimapur, Nagaland Proforma Respondents Present:
For the Appellant: Mr. Joshua Sheqi (Adv) For the Respondent: Mr. Pakinrichapbo (Adv) Date of Hearing:
Date of Order:
The present appeal petition is filed impugning the order dated 08.08.2019 passed by the Hon'ble District Commission, Dimapur in Complaint Case No. 20 of 2016 wherein the District Commission had ordered for the trial of the Complainant. The main contention of the appellant is that:
1. The Nagaland Medical Council conducted investigation against the Hospital of the Appellant by seeking expert opinion, including lodging complaint against the hospital of the Appellant before the Directorate of Health & Family Welfare. Expert opinions were rendered by Dr. Kezevituo Keditsu and Dr. Abi K. Angami. Both the experts did not find any medical negligence committed by the Appellant Hospital. The Directorate of Health & Family Welfare also sent an Inspection Team to investigate whether there are any negligence committed by the Appellant Hospital. However, the team could not establish any medical negligence nor professional error.
The above being the facts he submits that the Complaint has been filed just to harass the Appellant.
Further, he has submitted that the Respondent has indulged in Forum shopping by filing writ petition before the Hon'ble High Court in W.P.C no. 167(K) 2016, claiming compensation from the Government, refusing to admit the deceased for lack of room in the District Hospital leading to the ultimate demise of the wife of the Respondent.
In addition, the Respondent has sought to bring Complaint Petition against the appellant for negligence and compensation.
1Learned Counsel has argued that Forum shopping should be totally discouraged, and the Complaint Petition along with the impugned order dated 08.08.2019 should be dismissed and set aside.
i. The respondent No. 1/complainant has made several allegations in his complaint case. There is no head and tail in the complaint filed by the respondent before the District Consumer Forum, Dimapur. The respondent alleged that his late wife went medical checkup before the Dimapur District Hospital on 18.05.2015. She further visited the District Hospital Dimapur for checkup on 23.10.2015, 17.12.2015, 21.12.2015, 22.01.2016 and finally on 28.03.2016 for delivery. When she went for delivery on 28.03.2016, there was no bed to accommodate her. It was late at night at about 11:30 p.m. on the night of 28.03.2016 that she came to Nikos Hospital, which is the Hospital of appellant. The allegation against the appellant's hospital is that when the deceased Late Ramiyele Teriang got admitted they were told that she had to undergo cesarean section and she looked healthy. She was shifted to the operation theater at around 1:00 a.m. Three units of blood would be required for the operation. At about 2:15 a.m. the operation was over and she was taken to the recovery room. At about 2:30 a.m., the family of the deceased asked about her well-being, but the nurses only said that the condition of the patient is serious and on peeping, they saw the patient with oxygen mask. It is alleged that oxygen got exhausted in the recovery room and the deceased was taken to ICU where the oxygen was not available even in the ICU and the replacement was brought from outside which took about 10 minutes. At around 5:30 2 a.m. the brother of the deceased further donated 1 (one) unit of blood. At round 6:10 a.m., the family was denied access, but because the change of dress was necessitated, sister of the deceased allowed by the nurses. It is alleged that the navel of the deceased was also stitched and the operation was of vertical incision. The deceased had scratch marks on her face and she was tied to the bed poles, which indicates lack of quality care. The patient died at around 6:30 a.m. It is alleged that except for discharge slip, the Death Certificate was not issued. ii. The record clearly shows otherwise. Late Mrs. Ramyile Teriang was admitted to Nikos Hospital & Research Centre, Dimapur, Nagaland at 11:40 P.M on 28.03.16. As per the age mentioned by Late Ramyile, the deceased, she was 36 years at the time of admission in the Hospital of the Appellant. She was admitted and Initial Assessment was conducted by the Doctor on duty. As per the assessment in the Casualty Assessment Sheet, she was diagnosed to have developed severe complications with Maternal Distress at 1st stage of labor. Her medical history showed that she was pregnant for the first time after attaining 30 years of age. Her pregnancy was 41 weeks, which at her age is known as Elderly Primi. By the time she was admitted, she had already developed Acute Foetal Distress, Maternal Distress with Pregnancy Induced Hypertension and Accidental Hemorrhage/Abruptio Placentae due to severe degree of Retro Placental Clot. She was therefore advised to undergo emergency Lower Segment Caesarian Section (LSCS). Progress Note indicated that examination conducted on her till 12:30 a.m., 29.03.16 that normal delivery was not possible. It was about 12:00 3 to 12:10 midnight that the Appellant was informed by his staffs to immediately come to the Hospital to attend to the emergency condition of Late Mrs. Ramyile Teriang. The documents are annexed with the written statement of the appellant as ANNEXURES- 1, 2, &
3. iii. The patient and family members were also explained and made to sign Patient Counseling Form with all the Dos & Don'ts and the General Consent Form for necessary treatment that includes need based treatment, procedure, treatment plan, risks and alternatives of treatment, which was also signed by the family members of the patient. The documents are annexed with the written statement of the appellant as ANNEXURES- 4 & 5.
iv. The Consent Form for surgery shows that the present complainant had given his consent for surgery by appending his signature. Consent was also taken for Anesthesia Service. Every procedure was followed. Surgical Safety Checklist in the operation theatre was also examined including Steps for Safety in Surgical Patients. Records show that the operation began at about 12:40 a.m. and finished at about 1:20 a.m., which is about 40 minutes the same is reported in the Operation Note. The documents are annexed with the written statement of the appellant as ANNEXURES- 6, 7, 8, 9 & 10.
v. The Medicine order and Administration Sheet shows the list of Medicines induced/used for the patient. The Delivery Note shows that the child was born at 12:55 a.m. on 29.03.16. The child was a female weighing 4.35 kilos, live. This clearly shows that for a 36 years old female giving birth for the first time, even from a layman's understanding is that a child weighing 4.35 kilos could not have 4 been born normally. Records show that Pre-Anesthetic check-up was also conducted and Progress Note was also maintained. Formalities of Nursing Assessment is also entered in the Nursing Initial Assessment Form. Graphic T.P.R Chart was also maintained. Late Mrs. Ramyile was under constant care on a timely basis. The Nurses Notes clearly indicate that timings were also maintained to show that at every progress the patient was under constant observation. It was about 4:45 a.m. that the necessity for shifting her to I.C.U. arose which is reflected in the Nurses Notes as per the advice of the doctor. The I.V. Infusion Record and the Oxygen Records provided for the patient was also maintained. The documents are annexed with the written statement of the appellant as ANNEXURES- 11, 12, 13, 14, 15, 16, 17, 18, 19 & 20.
vi. Before the patient was shifted to the Intensive Care Unit, consent was taken from the family members at 6:10 a.m. and the same is reflected in the Form for Consent of Critical Care Patients. At about 6:50 a.m., due to seizure suffered by the patient, equipments of restraint has to be used as reflected in the Restraint Monitoring Chart. The restraint equipments were removed at 7:40 a.m. dated 29.03.16. The condition of the patient became critical, therefore, Code Blue was initiated at about 7:05 a.m. and the same is recorded in the Code Blue Recording Form. Records show that preventive measures to control infection control which is also recorded in the Cauti. Prevention Procedural Checklist. Consent was also taken for Blood Transfusion, which is shown in the form for Consent for Blood Transfusion and signed by family member. Blood Transfusion and Adverse Reaction Form shows that the same was initiated at about 5 6:30 a.m. while the Blood Transfusion was underway, the patient Late Mrs. Ramyile passed away at about 7:30 a.m. dated 29.03.16. After the patient passed away the End Report was prepared after preservative formalities. These documents are annexed with the written statement of the appellant as ANNEXURES - 21, 22, 23, 24, 25, 26 & 27.
vii. Under the normal form format used by the Government Hospitals, Medical Certificate of Cause of Death was issued to the family members on 29.03.16. The same has been questioned by the complainant's family. The Intensive Care Unit Flow Chart was also maintained. The documents are annexed with the written statement of the appellant as ANNEXURES - 28 & 29.
viii. The Nagaland Medical Council wrote to the Commissioner & Secretary, Department of Health and Family Welfare, who is also the Chairman of Nagaland Healthcare Establishment Authority, vide letter Ref. No. NMC/16/Court/2016-17/342-344, dated 08.12.16, in an effort to find fault on the Hospital of the Appellant. The Nagaland Medical Council also wrote to Dr. Kezevituo Keditsu vide letter Ref No. NMC/19/Confidential/2016-17/421, dated 05.04.17 seeking expert opinion on whether the wife of the Complainant died due to Medical Negligence of the Appellant. In his reply, Dr. Kezevituo Keditsu stated that the Congestive Cardiac Failure is itself an indication for caesarean section. He observed that Pulmonary Embolism is one of the leading causes of maternal mortality. He also stated that patients with such condition cannot go for normal labor and the delivery itself may be complicated by additional hemorrhage. The expert opinion clearly dispels medical negligence 6 as alleged. The documents are annexed with written statement of the appellant as ANNEXURES - 30, 31 & 32.
ix. The Nagaland Medical Council also sought expert opinion from Dr. Abi K Angami vide letter dated 28.04.17 to establish on whether there was a medical negligence on the part of the Appellant. In the reply letter dated 05.05.17, Dr. Abi stated that Ultrasound scanning may be able to detect Abruptio Placentae in case of moderate and severe degree depending on the presence of Retro Placentae Clot. Dr. Abi further stated that there can be post-partum haemorrhage after delivery in patient with accidental haemorrhage/Abruptio Placentae. The expert opinion clearly ruled out Medical Negligence. The documents are annexed with the written statement of the appellant as ANNEXURES - 33 & 34.
x. Vide order No. DHFW-8/Health Bill/NMC/2016/3566-59, dated 20.06.17, District Inspection Team was directed to inspect the establishment of the Appellant based on complaint from Nagaland Medical Council. The documents are annexed with the written statement of the appellant as ANNEXURES - 35.
xi. A circular was also issued vide Circular No. CMOO-
1/NHCE/46/2017/418-419, dated Dimapur the 17th July, 2017 by the Chief Medical officer, Dimapur to inspect the establishment of the Appellant on the 21st July, 2017 from 1:00 p.m. onwards. The documents are annexed with the written statement of the appellant as ANNEXURE - 36.
xii. On the day of inspection of the Hospital of the Appellant, the Appellant also prepared a reply to the queries vide letter dated 21.07.17 addressed to the Chief Medical officer, Dimapur who led 7 the team for investigation. The Appellant also gave a full picture of the facilities available in a chart with regard to the Department of Gynae and Obstetrics Department. No negative comment has been received from the Inspecting Team. It clearly points to show that the Hospital of the Appellant has up to date facilities. The documents are annexed with the written statement of the appellant as ANNEXURE - 37.
xiii. The record of the patient maintained by the hospital of the Appellant, the Expert Opinion rendered by the independent Doctors, Dr. Kezevituo Keditsu and Dr. Abi K. Angami, as sought by the Nagaland Medical Council and the District Inspection Team report as directed by the Directorate of Health & Family Welfare on the complaint by the Nagaland Medical Council clearly proves that the allegation of the respondent no. 1/complainant is nothing but emotional frustration due to the loss of his dear beloved wife. xiv. The present case is that the allegations of the respondent no 1/complainant has no head and tail, but a general allegation which is a result of frustration. While it is understood that losing a near and dear one is natural to spark uncontrollable emotion to point fingers, the harrowing experience the appellant had to go through cannot be overlooked. The NMC not only sought for expert opinions, but also wrote a complaint against the hospital of the appellant before the Directorate of Health & Family Welfare for which the District Inspection Team was also sent to inspect the entire records and facilities in the hospital, but no fault could be established against the hospital of the appellant. The record clearly shows that the claims and allegations of the respondent no. 1/complainant are 8 plain allegation without any cogent material support. While it is painful to lose a near and dear one, the judicial forum is not for addressing the emotional outburst of any litigant.
3. While there are several grounds, the appellant begs to raise the following grounds against the order dated 08.08.2019 with authorities:
i. The complaint petition before the DCF, Dimapur is directionless. The allegations are not supported by any expert's opinion or cogent materials. The complaint petition is not a case where the patient was a wrong patient, wrong diagnosis, wrong medication, wrong procedure of operation/ surgery or no consent taken for medical procedure of surgery which involves risk. In the absence of such element/allegation, no case is made out against the Hospital of the Appellant. It has become a universal fact to allege medical negligence, the stated facts have to be stated and proven to proceed with the case alleging medical negligence.
ii. The learned DCF, Dimapur erred in law for not appreciating the order of the Hon'ble High Court. Vide order dated 14.06.2018, the Hon'ble High Court while dismissing the writ petition observed at paragraph 10 of the order; "Under such circumstances, this writ petition is not maintainable. It is reiterated that further that the Consumer Forum has already in seisin with the dispute and as per the requirement of law, the Consumer Forum is competent to decide each and every issues arising before it and while doing so, the 9 Consumer Forum shall not be influenced by any finding or observation made in this writ petition. The Consumer Forum is at liberty to call for expert opinion while deciding the issues before it. Accordingly, this writ petition stands dismissed on the issue of maintainability". It is a fact that even without the DCF, Dimapur asking for expert opinion, the expert opinion of 2 (two) Doctors and the District Inspection Team report under the initiative of the NMC were placed before it. However, without considering the impeccable records and the expert opinions and report placed before it, the Forum directed for trial. The case which will naturally lead to dismissal being directed for trial is an abuse of the process of the Court and an undue harassment to the hospital of the appellant.
iii. The law is settled on the grounds on what grounds medical negligence can be alleged, whether it is criminal complaint or tort or in civil law. In medical negligence the principle to be applied is res ipsa loquitur. The record will speak for itself or the thing will speak for itself. On the basis of imaginary, made up, blunt allegations, the complaint cannot survive the preliminary objections. The learned DCF, Dimapur's failure to appreciate the basic settled principle of law has erred in law. If on the basis of emotional outburst and imaginary allegations, the complaint is allowed to go on trial, the same shall open a Pandora box for all sort of frivolous litigation setting a bad precedence.10
4. The Hon'ble Supreme Court in a catena of decisions have laid down the principles of law on how case of medical negligence is to be tried. In Jacob Mathew -Vs- State of Punjab and Another reported in (2005) 6 SCC 1, it is held:
20. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and well condensed one. After a review of various authorities Bingham L.J. in his speech in Eckersley v. Binnie, [1988] 18 Con.L.R. 1 summarised the Bolam test in the following words: -
"From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon 11 combining the qualities of polymath and prophet." (Charles worth & Percy, ibid, Para 8.04)
25. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
26. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may 12 cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counterproductive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
28. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
48. We sum up our conclusions 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act 13 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. 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. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not 14 generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(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 Bolam's case [1957] 1 W.L.R. 582 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 may 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 15 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 ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
5. In INS. Malhotra (Ms) -Vs- Dr. A. Kriplani & Others reported in (2009) 4 SCC 705, it is held:
1618. In support of his submission reliance is placed upon a decision of this Court in Civil Appeal No. 3541 of 2002 titled Martin F. D'Souza Vs. Mohd. Ishfaq, decided on 17.02.2009. In the said case, the Division Bench of this Court has passed some directions, which read as under:
We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Forum (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action.
48. Negligence in the context of the 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 17 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. The classical statement of law in Bolam's case, (1957) 2 AII ER 118, at p. 121 D-
F [set out in para 19 herein] has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular, and holds good in its applicability in India. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. Three things are pertinent to be noted. Firstly, the standard of Care, when 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. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time (that is, the time of the incident) on which it is suggested as should have been used. Thirdly, 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 18 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.
6. In Martin F. D'Souza -Vs- Mohd. Ishfaq reported in (2009) AIR (SC) 2049, Paragraphs 41, 47, 48, 49, 53 & 54 (i) & 106
- A Division Bench of Mr. Justice Markandey Katju & Mr. Justice G.S. Singhvi 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.
A private complaint should not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
7. In S.k. Jhunwala -Vs- Dhanwanti Kaur And Another reported in (2019) 2 SCC 282, it is held:
21. So far as this Court is concerned, a three-judge Bench in Jacob Mathew v. State of Punjab examined this issue. R.C. Lahoti, C.J. (as he then was) speaking for the Bench extensively referred to the law laid down in Bolam case and in Eckersley case and placing reliance on these two decisions observed in his distinctive style of writing that the classical statement of law in Bolam case has been Widely accepted as decisive of the standard of care required by both of 19 professional men generally and medical practitioner in particular and it is invariably Cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence.
22. It was held in Jacob Mathew case that a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is what the entire person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one or 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 not possess.
23. It was further observed in Jacob Mathew case that the fact that a defendant charged with negligence who acted in accord with the general and approved practice is enough to clear him of the charge.
It was held that the standard of care, when 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. It was held that the standard to be applied for judging whether the person charged has been negligent or not would be that of an ordinary competent 20 person exercising ordinary skill in the profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. His Lordship quoted with approval the subtle observations of Lord Denning made in Hucks v. Cole, namely, "a medical practitioner was not to be held liable Simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference of another. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field".
38. It is not in dispute that Respondent 1 failed to prove any specific kind of negligence of the appellant while performing the operation or/and thereafter. Indeed, even the National Commission in para 18 held this issue in favor of the appellant in the following words:
"18. Yet another grievance of the complainant is that she was not treated with care during her hospitalization from 7- 8- 1996 to 18-8-1996. No specific instances which can amount to carelessness or negligence on the part of the surgeon or the nursing home have been brought on record and, therefore, we are unable to hold that there was any lack of care amounting to negligence during her stay in the nursing home for which either the surgeon or nursing home can be made liable."21
40. Had it been so, the appellant could be held liable for failure on his part to remove the stones and allowed them to remain in the gall bladder for such a long time. There was no medical evidence adduced by Respondent 1 to prove this fact.
42. In our opinion, there has to be a direct nexus with these two factors to sue a doctor for his negligence. Suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering of any such ailment as a result of improper performance of the surgery that too with the degree of negligence on the part of the doctor is another thing. To prove the case of negligence of a doctor, the medical evidence of experts in the field to prove the latter is required. Simply proving the former is not sufficient.
47. It is apt to remember the words of the then Chief Justice of India when he said in Jacob Mathew case, which reads as under: (SCC pp.7e-8a) "The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a 22 medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer Chance may have combined to produce a result in Which the doctor's contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or in action of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability. "
238. In Bijoy Sinha Roy vs. Biswanath Das & Ors. Reported in (2018) 13 SCC 224, it is held:
Test to determine medical negligence
11. Negligence is breach of duty caused by omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do. Negligence in the context of medical profession calls for a treatment with a difference. Error of judgment or an accident is not proof of negligence. So long as doctor follows a practice acceptable to the medical profession of the day, he cannot be held liable for negligence merely because a better alternative course was available. A professional may be held liable for negligence if he does not possess the requisite skill which he claims or if he fails to exercise reasonable competence. Every professional may not have highest skill. The test of skill expected is not of the highest skilled person. concept of negligence differs in Civil and criminal law. What may be negligence in civil law may not be so in criminal. In criminal law, element of mens rea may be required. Degree of negligence has to be much higher. Res ipsa loquitur operates in domain of Civil law but has limited application on a charge of criminal negligence.
12. These principles have been laid down by a Bench of three-judges and continue to hold the field. This Court has also held that safeguards were necessary against initiation of criminal proceedings against medical professionals and till such safeguards are incorporated by the State, direction of this Court will operate to the effect that the 1 Jacob Mathew versus State of Punjab (2005) 6 SCC 24 1, para 48 private complaint will not be entertained unless credible opinion of another competent doctor in Support of the charge of rashness was produced. The Investigating officer must obtain independent and competent medical opinion preferably from a doctor in Government service, qualified in the concerned field in the light of judgment in Jacob Mathew (supra). A medical professional may not be arrested in a routine manner.
13. In Martin F. D'Souza versus Mohd. Ishfaq, this Court observed that uncalled for proceedings for medical negligence can have adverse impact on access to health. While action for negligence can certainly be maintained, there should be no harassment of doctors merely because their treatment was unsuccessful. This Court directed that the consumer fora must proceed with any complaint only after another competent doctor or Committee of doctors refers that there was a prima facie case. In V. Krishan Rao versus Nikhil Super Speciality Hospital, this direction was however, held to be inconsistent with the binding judgment in Jacob Mathew (supra). It was held that there were obvious jurisprudential and conceptual differences between the cases of negligence of civil and criminal matters. Protection of the medical professionals on the one hand and protection of the consumer on the other are required to be balanced.
14. In view of the legal position discussed above, we are of the view that the National Commission was justified in holding that decision to perform surgery may not by itself be held to be medical negligence.25
15. We however, find that neither the State Commission nor the National Commission have examined the plea of the appellant that the operation should not have been performed at a nursing home which did not have the ICU when it could be reasonably foreseen that without ICU there was post-operative risk to the life of the patient. There was no serious contest to this claim by the opposite parties. Having regard to the fact that the matter has been pending for the last 23 years, instead of remanding the matter for fresh adjudication on this issue, we consider it appropriate in the interests of justice to direct the opposite party No.1 to pay a sum of Rs.5 lakhs to the heirs of the appellant without any interest. The amount be deposited with the state commission Within 3 months for being disbursed to the appellants. If deposit is beyond 3 months, the amount will carry interest @ 12% p.a.
9. In (ARUN KUMAR MANGLIK vs CHIRAYU HEALTH AND MEDICARE PRIVATE LTD. & ANR reported in (2019) 7 SCC, 401, it was held:
31. In Bolam v Friern Hospital Management Committee, the defendant doctor treating a patient suffering from mental illness was held not guilty of medical negligence by the Queens Bench for failure to administer muscle- relaxant drugs and using physical restraint in the course of electro-convulsive therapy. Justice McNair, in his directions to the jury, laid down the following standard of care:
"...I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is 26 just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice,
37. A two judge Bench of this Court in Kusum Sharma (supra) laid down guidelines to govern cases of medical negligence. Justice Dalveer Bhandari, speaking for the Court, held:
"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the 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 is 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 27 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.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the 8 (2005) 7 SCC 1 9 (2009) 6 SCC 1 16 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.28
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 unnecessarily 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 pressurising the medical professionals/hospitals, particularly private 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.
90. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able 29 to perform their professional duties with free mind."
10. As submitted, the Hon'ble High court in W.P.C. NO.167(K) of 2016, while dismissing the petition vide order dated 14.06.2018 gave liberty to the DCF, Dimapur to seek expert opinion. This Hon'ble Commission may appreciate that though the DCF, Dimapur did not seek for expert opinion and the respondent No. 1/complainant also did not produce any expert opinion, the NMC (Nagaland Medical Council) initiated against the appellant in taking expert opinions including approaching the DHFW to initiate action against the hospital of the appellant. However, the expert opinions and the District Inspection Team could not find any fault on the hospital of the appellant. The record of the hospital will speak for itself. The case of medical negligence is a case governed by the principle of res ipsa loquitor. Given the settled principles of law, the appeal petition deserves the consideration of this Hon'ble Commission.
11. In (2010) 5 SCC 513, V. Kishan Rao vs. Nikhil super Speciality Hospital & Anr. A Division Bench comprising of Mr. Justice G. S. Singhvi and Mr. Justice A. K. Ganguly heard the matter. The judgment is singularly drafted by Mr. Justice A. K. Ganguly. This Judgment has been heavily relied upon by the Counsel for the respondent No. 1/complainant. It was claimed by the respondent counsel that this judgment overruled the Judgment of Jacob Mathews supra. The reading of the judgment V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr supra from para 31 to 33 shows that the legal proposition in the case of Jacob Mathews supra has been reaffirmed and the general directions laid down in para 106 in the case of Martin F. DSouza is 30 deprecated. According to the opinion of Mr. Justice A. K. Ganguly, the emphasis made in the case of Jacob Mathews supra is confined to criminal proceedings and not before the consumer fora.
12. A clear distinction can be drawn from the reading of the case of Jacob Mathews supra, Martin F. D'Souza and V. Kishan Rao supra that the Judgment in Jacob Mathews supra is that of a 3 Judges Bench, which is a larger Bench. The Judgment in both Martin F. D'Souza supra and V. Kishan Rao supra are rendered by 2 Judges Division Bench. In V. Kishan Rao Supra, Mr. Justice A. K. Ganguly expressed his personal opinion which does not overrule the Judgment rendered in Martin F. D'Souza supra; both being a 2 Judges coordinate Division Bench. At best, the circumstance of the present case is to be appreciated independently to ascertain which principle will best apply to the circumstance of the present case.
13. The principles laid down in Jacob Mathews supra and Martin F. D'Souza supra has been reiterated and reaffirmed in catena of decisions by the Hon'ble Supreme Court. The principle laid down in Martin F. D'Souza supra has also been reiterated in (2009) 4 SCC 705, INS. Malhotra (Ms)
-Vs- Dr. A. Kriplani & Others. A simple lack of care, an error of judgment or an accident is not proof of medical negligence.
14. For the reasons afore stated circumstances based on the settled principle of law, the appeal petition deserves to be allowed by quashing and setting aside the order dated 08.08.2019 and the pending Complaint Case No.20 of 2016 before the District Consumer Forum, Dimapur deserves to be dismissed.
31Appearing for the Respondent no 1, Mr. Pakinrichapbo (adv) submits as follows:
1. Deficiency of service in the service provided by the Appellant Hospital:
According to Section 2 (11) Deficiency means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of contract or otherwise in relation to any service and includes--
(i). any act of negligence or omission or commission by such person which causes loss or injury to the consumer, and
(ii) deliberate withholding of relevant information by such person to the consumer. The instant case fulfills the ingredients of negligent and deficiency in service as per the given definition of deficiency provided in the CP Act. The deceased wife of the complainant died of wrongful death due to the careless act of the doctor and staffs of the appellant hospital where cesarean section was quickly resorted to without detail examination on the deceased despite her previous doctor assurance that she and her child were in healthy state, the deceased lying unattended in the maternity ward and even after the operation, lack of oxygen in the ICU and as alleged in the main complaint by the complainant that after the deceased Was taken in to operation theater for performing caesarean section on her, the appellant hospital despite the complainant repeated queries regarding the condition of his wife had repeatedly refuse to provide information regarding the status of the treatment to the complainant and other family members of the 32 deceased until her demise. This fact clearly shows that there was shortcoming in the quality of the service provided by the Appellant hospital having no regard to the rights of the consumer and on this very ground of withholding relevant information to the complainant who has suffered irreparable loss at the hand of the appellant hospital, the instant appeal ought to be dismissed.
2. Lack of Jurisdiction of the State Consumer Disputes Redressal Commission:
That it is my humble submission that the State Commission intervening on the direction of the Hon'ble High Court will result in violation of Article 227 of the Constitution. According to Article 227 (1), every High Court has the power of superintendence over all courts and tribunals within its territorial jurisdiction except those which are constituted by or under a law relating to armed forces. It is settled law that that the power of judicial superintendence is to be exercised to keep the courts and tribunal within the bounds of their authority and jurisdiction and not for correcting mere errors of law or facts. It is further respectfully submitted that the State commission in the event of interfering with direction of Hon'ble High Court by quashing or setting aside the order of the Consumer Forum would amount to exceeding its jurisdiction and would result in flagrant violation Article 227 of the Constitution. Further the Hon'ble Gauhati High Court while dismissing the W.P. (C) No. 167 (K)/16 has held that the Consumer Forum is competent to decide each and every issues arising before it and while doing so, the Consumer Forum shall not be influenced by any finding or observation made in this writ petition and liberty was given to the Dimapur Consumer Forum to call for expert opinion while deciding the issues 33 before it. Therefore, it is prayed that the Hon'ble State Commission comply with the direction given by the said Hon'ble High Court and allows the Consumer Commission to proceed with the trial to determine the real issues raised in the CFD No.20/16 pending before the Consumer Commission Dimapur.
That countering the submission made by the learned counsel for the appellant by relying on the ruling passed in Jacob's Mathew Case (2005) 6 SCC and Martin D'Souza v. Mohd. Ishfaq (2009) AOIR (SC) 2049, that the CFD NO.20/16 ought to be dismissed for not providing expert opinion in the complaint. It is respectfully submitted that the Apex Court in 2010 SCC 513 Kishan Rao v. Nikhil Super Specialty Hospital and Another have overturn the direction passed in the above mentioned two case as not binding precedent.
The rulings are hereby reproduced below:
Para 30, in the concluding part of the judgment in Mathew in SCC para 48, sub paras (5) and (6) the learned Chief Justice summed up as follows (SCC P-33) "48. (5) the jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may 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.34
(6) the word 'gross' has not been used in Section 304-A 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 304-A IPC has to be read as qualified by the word 'grossly'."
After laying down the law, as above, the learned Chief Justice opined that in cases of criminal negligence where a private complaint of negligence against a doctor is filed and before the investigating officer proceeds against the doctor accused of rash and negligent act, the investigating officer must obtain independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice. Such a doctor is expected to give an impartial and unbiased opinion applying the primary test to the facts collected in the course of investigation. The Hon'ble Chief Justice suggested that some statutory rules and statutory instructions incorporating certain guidelines should be issued by the Government of India in consultation with the Medical Council of India in this regard. Till that is done, the aforesaid course should be followed. But that those directions in Para 52 of Mathew were certainly not given in respect of complaints filed before the Consumer Forum under the said Act Where medical negligence is treated as civil liability for payment of damages.
Para 31. This fundamental distinction pointed out by the learned Chief Justice in the unanimous three-Judge bench decision in Mathew was unfortunately not followed in the subsequent two bench judge of this Court in Martin F.D. Souza v. Mohd. Ishfaq. From the facts noted in paras 17-18 of the Judgment in D'Souza, it is clear in D'Souza complaint was 35 filed before the National Consumer Disputes Redressal Commission and no criminal complaint was filed.
In para 32. The Bench in D'Souza noted the previous three-Judge Bench judgment in Mathew (para 41 at pp. 17-18 of the report) but in para 106 of its judgment, D'Souza equated a criminal complaint against a doctor or hospital with a complaint against a doctor before the Consumer Fora and gave the following directions covering cases before both. Those directions are set out below: (D'Souza case, SCC pp.33-34, para 106) "106. We, therefore, direct that whenever a is received against a doctor or hospital by the Consumer Fora (whether District, State or national) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action.
Para 33. We are of the view that the aforesaid directions in D'Souza are not consistent with the law laid down by the larger bench in Mathew. In Mathew the direction for consulting the opinion of another doctor before proceeding with criminal investigation was confined only in cases of criminal complaint and not in respect of cases before the Consumer Fora.
36The reason why the larger Bench in Mathew did not equate the two is obvious in view of the jurisprudential and conceptual difference between cases of negligence in civil and criminal matter. This has been elaborately discussed in Mathew. This distinction has been accepted in the judgment of this court in Malay Kumar Ganguly. (paras 133 & 180).
Para 34. Therefore, the general directions in para 106 in D'souza, quoted above are, with great respect, inconsistent with directions given in para 52 in Mathew which is a larger Bench decision.
Para 36. About the requirement of the expert evidence, this Court made it clear in Indian Medical Assn. that before the Fora under the Act both simple and complicated cases may come. In complicated cases which require recording of evidence of an expert, the complainant may be asked to approach the civil court for appropriate relief. This Court opined that section 3 of the Act provides that the provisions of the Act shall in addition to and not in derogation of the provisions of the Act of any other law for the time being in force. Thus the Act preserves the right of the consumer to approach the civil court in complicated cases of medical negligence for necessary relief. But this Court held that cases in which complicated questions do not arise the Forum can give redressal to an aggrieved consumer on the basis of a summary trial on affidavits.
Para 39. The decision in Indian Medical Assn. has been further explained and reiterated in another three-Judge Bench decision in J.J. Merchant (Dr) v. Shrinath Chaturvedi. The three-judge Bench in J.D. Merchant (Dr) accepted the position that it has to be left to the discretion of Commission.
37" to examine the experts if required in an appropriate matters. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly." (emphasis supplied) (SCC p.645 para 19) Para 40. It is, therefore, clear that the larger Bench in J.J. Merchant (Dr) held that only in appropriate cases examination of expert may be made and the matter is left to the discretion of the Commission. Therefore, the general direction given in para 106 in D'Souza to have expert evidence in all cases of medical negligence is not consistent with the principle laid down by the larger Bench in para 19 in J.J. Merchant (Dr.).
Para 41. In view of the aforesaid clear formulation of principles on the requirement of expert evidence only in complicated cases, and where in its discretion, the consumer for a feels it is required, the direction in para 106 quoted above in D'Souza for referring all cases of medical negligence to a competent doctor or committee of doctors specialized in the field is a direction which is contrary to the principles laid down by the larger Bench of his court on this point. In D'Souza the earlier larger Bench decision in JJ Merchant (Dr.) has not been noticed.
Para 45. It is clear from the Statement of Objects and Reasons of the Act that it is to provide a forum for speedy and simple redressal of consumer disputes. Such avowed legislative purpose cannot be either defeated or diluted by superimposing a requirement of having expert evidence in all cases of medical negligence regardless of factual requirement of the case.38
If that is done the efficacy of remedy under the Act will be substantially curtailed and many cases the remedy will become illusory to the common man.
Para 50. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the (res) prove itself. In such a case it is for the respondent to prove that he has taken due care and done his duty to repel the charge of negligence. It is humbly submitted that there was a gross medical negligence on the part of the Appellant hospital and onus shall lie on the Appellant hospital to prove otherwise.
Para 52. In view of the discussions aforesaid this Court is constrained to take the view that the general elections given in para 106 in D'Souza cannot be treated as binding precedent and those directions must be confines to the particular facts of that case.
Para 58. In most cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or other. Based on the above consideration of the Hon'ble Apex Court in said case, it is further submitted that the case laws cited by the counsel for the appellant have no relevance in the instant case and as such the appeal rightly deserved to be dismissed.
On the Appellant contention that two medical doctors have ruled out medical negligence on the death of the complainant's wife, it is 39 respectfully submitted that in the said expert opinions given by the two doctors, it does not indicate anywhere that complainant's wife did not die from medical negligence. The said opinions without investigation only gave a general answer to the query whether Accidental Hemorrhage can happen post-delivery to which the two medical experts say it can happen, which is incomplete to decide the issues raised in the complaint. Whereas the President Nagaland Medical Council has stated in para-5 of his letter bearing Ref. NO.MNC/16/Court/2016-17/342-344 dated 08.12.16 addressed to the Commissioner & Secretary, Health and family Welfare Department and Chairman, Nagaland Healthcare Establishment Authority stated that causes of death as Accidental Hemorrhage as very strange, adding it must be specific from where and how. However, the said expert opinions do not give specific answer as to how and where in went wrong causing the wrongful death of the deceased. Therefore, the expert opinions relied by the Appellant is not credible enough to conclude that the deceased had not suffered any medical negligence. And to decide controversy new expert opinion based on proper investigation is required as the complainant deserved to know what went wrong while administering the treatment as tie Managing Director of the Appellant Hospital himself operated on the deceased.
It is therefore humbly prayed that considering the above humble submissions, the Hon'ble State Commission may be graciously kind enough to dismiss the appeal in the interest of justice with direction to Consumer Commission Dimapur to proceed with the trial in CFD No. 20/16.40
We have heard the arguments forwarded by the counsels for the Appellant and the Respondent.
On hearing the learned counsels for the opposing parties the main issue has revolved around the issue whether "Expert opinion suggesting there has been medical negligence committed by the doctor/hospital is pre-requisite for initiating a criminal complaint/criminal negligence against the offender."
We have heard the learned counsels cite several decisions by the Apex Court on the subject with divergent views. The largest bench and the latest on the subject as relied upon by the parties is the case of Jacob Mathew -vs- State of Punjab and another decided on 05.08.2005 presided by Justice CJI R. C. Lahoti, P. K. Balasubramanyan and G. P. Mathur.
Unfortunately, the matter relates to criminal negligence u/s 304A IPC which is not the case in the instant appeal. The Complainant/Respondent has clearly stated that it is not a criminal complaint and the complaint is for civil negligence for the purpose of claiming compensation. Therefore, the case of Jacob Mathews which deals with criminal negligence is not appropriate to be applied for the instant case.
The difference in the two is basically the higher degree of negligence coupled with element of mens rea in criminal negligence while the degree of negligence may not be high in civil negligence.
The general accepted view in all the judgements is that the medical profession must be treated differently when the issue of negligence is in question. The reason being that the medical field has so many unpredictable occurrences which maybe beyond the control of the medical 41 practitioners for which they cannot be put to trial. Doing so would bring unhealthy results in the society. Therefore, the standard accepted by the courts are that:
1. The concerned doctor must have the desired qualification to treat the patient for particular ailment in question.
2. He/she must have the standard skill to treat the patient.
3. He/she should have adopted the method and procedure which should have been adopted in the normal course.
4. He/she cannot be blamed because there are better treatment available, it is sufficed if the standard and normal discharge of his/her duty has been performed.
In the facts and circumstances of the present case at hand we are unable to identify anything which maybe attributed as negligent by the appellant hospital.
The history of the incident narrates that the deceased came to the hospital of the appellant at midnight when the pain was severe and expectancy of birth was post-dated. They came to the hospital of the appellant only after they could not get a seat in Civil Hospital, Dimapur.
The history of the deceased shows that all the indications she had could only be treated by Lower Segment Caesarean Section (LSCS). When she was admitted to the appellant's hospital at 11:40 p.m. on 28.03.2016 and initial assessment was conducted. She has to be operated as normal delivery was not possible.
1. She was diagnosed to have developed severe complications with maternal distress at 1st stage labor.
422. By the time she was admitted she had already developed Acute Foetal Distress, Foetal Heart pound was read as 160/minute.
3. She was elderly primi, she was aged 36 when she was admitted.
4. Her expected date of delivery was 23.08.2016 but she came to the appellant's hospital on 28.03.2016 which is clearly post-dated.
5. The baby was also overweight measuring 4.35 kg.
6. She further developed pregnancy induced hypertension.
The medical report also shows that the consent for surgery as well as consent of the anaesthesia were obtained which are contained as page 133 and page 134 of the appeal memo.
From the above facts and circumstances, we are unable to come to a finding that there was any negligence on the part of the appellant. All steps required by normal standards were taken as can be seen from the records.
To support the case of the appellant the records reveal that complaint was filed by the Nagaland Medical Council which is produced in page 164 of the paper book. Two leading gynaecologists were chosen by the Nagaland Medical Council, who are Dr. Kezevituo Keditsu and Dr. Abi K. Angami, Senior Specialist, Obst & Gynae Dept., Naga Hospital Kohima. The opinion of both the specialist have been annexed in the paper book at page 166 marked as annexure-22 and at page 168. Their opinion on the possibilities in patients of the deceased condition is equivocal, there are no two opinions.
We also find that the Investigating Team was sent to enquire into whether the Nikos Hospital had the requisite registration and other 43 necessary paraphernalia for a standard hospital. We have not found any negative report of the team on record.
The complaints with respect to non-issue and refusal to issue Death Certificate, Patient Pre-Operative assessment not being doing, complaint with respect to non-availability of oxygen etc. have been satisfactorily replied. For the sake of brevity, we reproduce the reply of the Managing Director of Nikos Hospital to the CMO Dimapur.
44 45From the above reply which was addressed to the Chief Medical Officer, Dimapur, Nagaland it can be ascertained that the complaints with respect to non-issue of death certificate, pre-operative assessment not been done, and the lack of oxygen and anaesthetic chart have been answered. The xerox copy of the patient's case sheet has also been submitted to the Naga Medical Council on 21.12.2016.
Thus, many of the complaints are basically not in conformity with the records placed for scrutiny.
Leave aside the issue whether the expert opinion is a pre-requisite for initiating an enquiry be it civil or criminal in nature. We must also confront ourselves with the issue whether complaint deserves to be admitted in the face of records placed at hand before the Consumer Commission. When all expected line of enquiry has been placed before the Commission with a view that there is no negligence by none less than two senior most among gynaecologist of the state and investigated by the medical team who did not find anything negative. We are unable to consider the prayer of the Complainant/Respondent that fresh experts from outside be employed to establish negligence.
We are also not in argument with the learned counsel for the Complainant/Respondent that this Commission has no authority to entertain appeal or revision petition in the face of the Hon'ble High Courts superintending powers over Consumer Commissions in a given state. The Hon'ble High Court would not take away the statutory powers vested with the Commissions as contended by the learned counsel. The only directive was to decide the matter on merit and issues. Therefore, there is no hindrance in entertaining appeal or revision petition by this Commission.
46As discussed above, we find no substantial grounds to allow the enquiry to go on when all answers have been placed before the Commission in a documented form. It would be a futile exercise wasting the time of the Commission to delve into the matter again after two experts have rendered their opinion and investigating team have already cleared the name of the appellant.
The appeal is allowed. Order dated 08.08.2019 passed by the learned District Consumer Commission is quashed and set aside. There shall be no order as to cost. Appeal stands disposed with the directions as indicated above.
President Member Member
47