State Consumer Disputes Redressal Commission
Sabiha Hamid vs Dr M Khan Hospital on 30 September, 2021
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. C/2013/32 ( Date of Filing : 07 Mar 2013 ) 1. Sabiha Hamid a ...........Complainant(s) Versus 1. Dr M Khan Hospital a ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 30 Sep 2021 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint Case No.32 of 2013 1- Smt. Sabiha Hamid major w/o Sri Naved Uddin Siddiqui, R/o Qila Jama Maszid, Bagh Moti Miyan Police Station, Qila, District Bareilly U.P. ...Complainant. Versus 1- Dr. M. Khan Hospital Stadium Road, Bareilly, through its Manager. 2- Dr. Mohd. Javed Khan, R/o Dr. M. Khan Hospital, Stadium Road, Bareilly. 3- Dr. Yasmin Kham w/o Dr. Mohd. Javed Khan, R/o Dr. M. Khan Hospital, Stadium Road, Bareilly. 4- Dr. Rajiv Gupta, r/o Near Harthala Police Chowky and Dainik Jagran Press, Kanth Road, Moradabad. 5- Sanjay Gandhi Post Graduate Institute of Medical Sciences, Rae Bareli Road, Lucknow through its Director. 6- United India Insurance Co. Ltd. B.O. II, 35-D, Laxmi Niwas, Rampur Garden, Bareilly. 7- The New India Assurance Co. Ltd. DO 195, Sotiganj, Meerut. ...Opposite parties. Present:- 1- Hon'ble Sri Rajendra Singh, Member. 2- Hon'ble Sri Sushil Kumar, Member Sri Nitin Khanna, Advocate for the complainant. Sri Sushil Kumar Sharma, Advocate for the OPs No.1, 2 & 3. None for the OPs No.4 & 5. Sri Ashok Mehrotra, Advocate for the OP No.6. Sri Neeraj Paliwal, Advocate for the OP No.7. Date 6.10.2021 JUDGMENT
Sri Rajendra Singh, Member- In brief, the facts of the complaint case is that, that the complainant is a respectable citizen of India and is housewife, who is aggrieved by the illegal and unwanted (2) acts of the opposite parties by which the complainant has suffered pain in her stomach after the delivery of the child who was born by the operation conducted by opposite parties no 2& 3 . Opposite party no.1 is the nursing home and opposite parties no 2 & 3 are doctors of the said nursing home. Opposite parties no.1 to 3 provide medical services to the patients on consideration.
In the year 2010, the complainant became pregnant and was under the treatment of opposite party no.3. After completing the full period of pregnancy, the complainant was advised by opposite party to get herself admitted for the delivery of the child in the nursing home , OP 1 . She was informed that she will get the best medical facilities in Bareilly and her delivery will be comfortable. She was convinced by OP no 3 and got herself admitted in Dr MA Khan Hospital on 1st November 2010. The condition of the complainant was normal except some pain in the stomach. At about 3 PM the opposite party no 3 came to her for checkup and advised her to go cesarean operation for the childbirth. But for cesarean operation, her family members and her husband did not give consent.
At about 3 PM the OP no 3 took her in the labor room and after few seconds shifted her to the operation theatre. The complainant was not aware of the intention of the opposite party no. 3. Later on some injections were given to the complainant and she became unconscious. Thereafter she was operated by OP no.2 & 3. The complainant has already paid fees to opposite party no.3 during her routine checkup in pregnancy time and also paid a sum of ₹ 6000/for her treatment and operation from 01.11.2020 to 04.11.2010 as the complainant was discharged on 04.11.2010. After discharge from the hospital, the complainant did not feel good and she had regular pain in her abdomen and she was in regular touch with the opposite parties for her treatment of pain in abdomen. Each time she was informed and advised by opposite party no 3 that she has been operated therefore the pain may continue for some time. The pain did not stop and the complainant got admitted herself in the Dr. M. Khan Hospital from (3) 16.02.2011 to 23.02.2011. Even then the problem of pain in abdomen could not be cured.
When the opposite parties no.2 & 3 failed to cure the pain in her abdomen, she was advised by them to contact Dr Rajeev Gupta at Moradabad. It is pertinent to mention here that Dr Rajeev Gupta never advised for any other operation and said that the pain shall be stopped by medication. Many X-rays and ultrasound tests have been done but he could not be able to diagnose the problem. Thereafter the complainant again contacted opposite parties no 2 & 3 in the premises of OP 1 but again she was advised to wait for some more time to take the medicines prescribed by them but the opposite parties no 2 & 3 could not diagnose the real cause of the pain. The complainant was in very bad condition as she was continuously suffering from pain in her abdomen region, so she came to Lucknow and got herself admitted in SGPGI, where after investigation it was found that a bundle of cotton was present in her abdomen which was the main cause of continuous pain.
On 22.06.2011 the complainant was operated by the doctors of SGPGI MS and the bundle of cotton has been removed. The doctors informed her that the track by which the stool of the body passes have been infected badly as such the whole track cannot be used by the body naturally and the doctors will have to make another artificial track for the discharge of the stool by another operation. It was not possible for the complainant to get herself operated immediately. For the time being, by way of second operation the doctors of the SGPGI inserted another pipe in the body of the complainant which was connected with a bag. As such the complainant was forced to hang the bag with her body so that the stool of the body may be collected in the bag. The condition of the complainant remained SUCH till 6 January 2012, when the complainant was operated for the third time again and the doctors of the Institute installed a side track in the body of the complainant by which the stool of the body can pass.
(4)It is crystal clear that opposite parties no 1 to 3 were totally deficient in providing medical services during the time of cesarean operation as opposite parties no.2 & 3 have left a piece of cotton in the stomach of the complainant which caused so much pain and she suffered a lot by undergoing three operations during the said period and she expended a lot of money and suffered acute depression and mental agony by such negligent act of the opposite parties no.2 & 3. It is worth to mention here that due to her serious condition she was not able to take her newly born child in her lap and was not able to provide her milk and thus the child could not get the total love and affection from mother. This period which started from 01.11.2010 till 06.01.2012 was the worst time of her life as she suffered a lot due to the illegal, unwanted, negligent work of the opposite parties no 2 & 3 . Moreover the complainant was jobless and was giving tuition to mall children before her above-mentioned operations and delivery by which she was able to earn about ₹ 6000 per month. The complainant lost her source of earning as she was not able to give tuitions to small children and as such the complainant also suffered a monetary loss amounting to ₹ 84,000.
The complainant had paid Rs 37000/- to opposite parties no 1 to 3, ₹ 1800/- to Dr Rajeev Gupta and Dr. Sadhna Gupta at Moradabad and further paid ₹ 62,307.28/- to SGPGI. The complainant also paid ₹ 110,000/- for the medicines purchased and for the required tests like ultrasound, X-ray , blood tests et cetera et cetera. The complainant also spent about ₹ 141,000/- for going to Moradabad from Bareilly and from Bareilly to Lucknow. As the complainant was not able to walk so the complainant had to travel with her own family in four wheeler only. The family members of the complainant spent about ₹ 32,000/- for their stay at Lucknow who were accompanying her for taking care of her and her son. So the complainant spent about ₹ 390,107.28/- from 01.11.2010 till her discharge from SGPGI, Lucknow. This amount is liable to be paid to the complainant by opposite parties no.1 to 3. The opposite parties no.1 to 3 are also liable to pay ₹ 80 lakhs as (5) compensation to the complainant for their deficient acts by which the life of the complainant was at high risk during the said period. The illegal and deficient acts of the opposite parties no.1 to 3 have caused the complainant to file the present complaint petition.
The opposite parties no 1 to 3 have stated in their written statement that the complaint is based on wrong, concocted facts and afterthought it has been manufactured just to harass the opposite parties and extort money by blackmailing them. The true and correct facts are that the complainant was advised cesarean operation by OP no 3 who is well qualified gynaecologist and after thoroughly and properly examining the complainant and after taking due consent of the complainant and her family members to save the life of complainant and the child, operated the complainant on 01.11.2010 successfully. By the cesarean operation the complainant gave birth to a healthy male child and both the child and the mother was discharged from the hospital hale and hearty. It is wrong to say that the complainant came for treatment to OP 3 since she became pregnant, the facts are that the complainant came for consultation with OP 3 just before the date of admission in the hospital and before this she was not in consultation with the OP 3 . It is important to mention here that the operation is done by op 3 & OP 2 has no concern in any way with the operation and it is wrongly mentioned in para one of the complaint for the reason best known to complainant. Its object may be to harass the opposite parties.
It is also important to mention that the complainant made a complaint to Mahila Adhikar Ayog/District Magistrate, Bareilly. A panel of government doctors was formed for enquiry regarding the complaint of the complainant Smt. Sabiha Hamid. The panel of doctors submitted report after deep enquiry into the matter and in the report the panel reported that Dr. Mohd. Javed Khan, the opposite party no.2 has no concern with the operation. Further FIR was also lodged in the PS Baradari, Bareilly against the opposite party no.2 & 3 in the matter and an investigation was done by the police and in the (6) police investigation it was also found that OP no.2 had not been involved in the operation in any manner and his name was expunged from the FIR, therefore OP 2 has been made unnecessary party. Further as there is no lacuna in the services of the OP 1 nor there is any complaint regarding any deficiency in the services by the OP 1 so OP 1 is also made unnecessary party and the complaint is bad for misjoinder of parties and is liable to be set aside on this very ground.
After a few months of discharge from the hospital, the complainant approached OP 2 for pain in abdomen (some gastro problem) for which proper treatment was given to her and she was further referred to a super specialist Dr Rajeev Gupta, OP 4, with a view that the super specialist Dr. could only diagnose the cause of ailment and after this the complainant never contacted the OP 2 or OP 3. It is important to mention here that the complainant had undergone a cesarean operation at Dr. Amit Child Care Center, Bareilly by Dr Sofia Haroon prior to the operation done by the OP 3 Dr. Yasmeen Khan. Both the operations have been done within a span of one year. The doctor Dr. Deepa Kapoor who treated the complainant at SGPGI, Lucknow, has observed that the complainant had undergone to cesarean operation within the span of one year and it is not possible to ascertain that in which of the two operations the mop/sponge was left. Also in the investigation report given by Medical Board had clearly mentioned the mop taken out at SGPGI Lucknow is not left in operation done by OP 3. Further the complainant again moved an application to the District Magistrate, Bareilly for a re-enquiry in the matter and the District Magistrate on application of the complainant formed an enquiry committee of government doctors and Additional District Magistrate City, Bareilly and the enquiry committee after in-depth investigation gave report with detailed reasons that OP 3, Dr. Yasmeen Khan was not guilty in the matter and so there is no reason left for the present complaint.
Smt. Sabiha Hamid and husband Sri Naved Uddin Siddiqui wanted to defame the name and reputation of OP 1, 2 & 3 as such the (7) farce and fabricated allegations were levied against them to extort the illegal demand and when the illegal demand was not fulfilled by the OP 2 & 3, the complainant lodged FIR and moved many other complaints to various authorities. The complainant and her newly born baby was discharged from the hospital hale and hearty and even now both are well hale and hearty. The motive of the complainant is clear by demanding such a huge amount of compensation arbitrarily from OP 2 & 3 without any fault on their part. The present complaint is barred by time. There is no deficiency in the services on the part of the OP's 1, 2 & 3 and the present complaint is filed on farce and fabricated grounds so in the interest of justice the present complaint is liable to be dismissed with special costs.
The opposite party no 5 has stated in his written statement that in the complaint not a single averment has been made against the answering opposite party 5 i.e., SGPGI. Therefore the present petition is not maintainable against the opposite party 5 and is liable to be dismissed. The complainant is not entitled to any relief/compensation as claimed by her specially against the opposite party 5. It is respectfully submitted that the institution imply the best medical experts in their relevant field and the experts do their level best to cure the disease but in no way, they should be dragged into frivolous litigation , as this will not only lead to harassment and insecurity in the doctors but also create disturbance in the Institute. The doctors will not be able to serve the patients with their hundred percent ability. It is the duty of everybody to provide free and fearless atmosphere for the doctors so that they may fully apply themselves. In view of the above, it is most respectfully prayed that this Hon'ble commission may kindly be pleased to dismiss the present complaint so far as its relates to opposite party 5.
The opposite party number six has stated in his written statement that the opposite party no 2 Dr MohdJaved Khan had obtained one Professional Indemnity Policy number 080502/46/10/ 35/00000080 valid from 10.07.2010 to 09.07.11 from United India (8) Insurance Company Limited which has been impleaded as OP 6 in August 2013. Unless and until it is proved that opposite party2 is liable for committing professional negligence, the liability does not arise and the liability to indemnify the insured under the terms and condition of the policy of insurance is only for ₹ 5 lakhs. The complainant has neither submitted any proof of medical negligence by the said Dr nor she has filed any expert report of the doctors suggestive of medical negligence. The complainant has preferred the present complaint on totally false, frivolous grounds and is liable to be dismissed with costs. The main ingredients of professional indemnity policy implies that the relief of indemnity activates as soon as professional negligence of the concerned doctor is established who has been insured by the company and till such time, the company has no role to play. In the instant case, the complaint has been filed demanding ₹ 80 lakhs and there is no averment to the effect that opposite party 2 was in any manner professionally negligent in her duty or even the fact that he was in any manner involved in the alleged deficiencies which have been stated by the complainant against opposite party 2. In fact, no relief has been claimed in the prayer against opposite party 6 because impleadment of opposite party 6 was effected in August 2013 but relief clause has not been amended by the complainant.
The opposite party 7 has stated in his written statement that the opposite party 3 has taken Director Composite Package Insurance Policy from answering opposite party on 05.02.2010 effective from 5 February 2010 to 4 February 2011 covering professional indemnity to the extent of ₹ 5 lakhs in one event. It is further submitted that unless and until it is proved that the opposite party 1 is liable for professional negligence the liability for indemnify her is limited under the terms and conditions of the policy of insurance which is not more than ₹ 5 lakhs. The complainant has neither submitted any proof of medical negligence by the treating doctors nor have she filed any expert report of the doctors which could suggest the medical negligence of the (9) opposite party 3 . The present complaint is totally false, frivolous and is liable to be dismissed with costs.
We have heard the learned counsel of the complainant Mr. Nitin Khanna, ld. Counsel for the OPs no.1, 2 & 3 Sri Sushil Kumar Sharma, Ld. Counsel for the OP no.6 Sri Ashok Mehrotra and ld. Counsel for the OP no.7 Sri Neeraj Paliwal.
The Counsels for the opposite parties number 4 and 5 did not appear. Counsel for the opposite party 5 has already been present on 25th August 2017 but today he did not appear to argue. We have perused the pleadings, evidence and documents on record.
Various documents have been filed showing that complainant was admitted in Dr. M. Khan hospital. It is admitted by the opposite parties that she was operated for the delivery of a child and the operation was Cesarean one. The written statement filed jointly by opposite parties 1,2 & 3 has specifically mentioned that the operation was done by OP 3 and op 2 had no concern in anyway with the operation. It is clearly mentioned in this statement that the complainant got herself operated on 01.11.2010 by OP 3 , Dr Yasmin Khan. Therefore it is the admission of opposite parties 1 to 3 that the operation has been done by OP 3.
Now let us see the oath taken be a doctor before entering the nobel profession of the Medical World. As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.(10)
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has (11) displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that 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 cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an 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 counter productive. 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 loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC (12) 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. SanthaIII(1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC (13) 513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent.
(14)This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
Essentials of Res Ipsa Loquitur Maxim The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In AchutraoHaribhauKhodwa and Others vs State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
(15)Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
(16)As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent.
Top of Form Bottom of Form The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.(17)
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.(18)
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence (19) cases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. { MarkLuney and Ken Opliphant , Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 } In A.S. Mittal &Anr Vs State Of UP &Ors , AIR 1979 SC 1570 , the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth ₹ 12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not have occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence (20) leads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being (21) left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.(22)
Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
Toxic Epidermal Necrolysis ( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of (23) U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, (24) Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there (25) is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No. 1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Honble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos. 1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Honble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.KaushikNandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation.(26)
We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult (27) was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and (28) deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- ( roundedofto Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr.Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
The above amount shall be paid by opposite parties no. 1 to 4 to the complainant in the following manner:
(i). Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation] .
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation] (29)
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default.
Now we see the circumstances of the present case. The complainant got herself admitted in the hospital for delivery of a child. Opposite party 3 perform the cesarean operation and thereafter post operation care has been taken as alleged by the opposite party. Due to regular pain in the abdomen the complainant went to SGPGI where she was operated and a cotton mass has been found in the stomach of the patient. Many complaints were made by the aggrieved person. An enquiry was conducted by UP Medical Council and after thorough enquiry, the medical Council That has submitted its report dated 1 May 2013. We have seen the report and it will be better to be produced that report here.
" Sub : Enquiry against Dr Yasmeen Khan ( UPMC Reg no 41657 ), Dr M Khan Hospital , Stadium Road, Bareilly. As alleged by Mrs Sabina Hamid w/o MrNaweduddin Siddiqui , a resident of Mohalla - Zakira Quila , Jama Masjid , Bagh Miyan , PS Quila , Bareilly for conducting an enquiry against complainants treatment. Attendant of the patient had complained that the patient went to Dr Yasmeen Khan for cesarean that was her second pregnancy. Where she was operated on 01.11.2012 and after few days she started having problem.
During the course of investigation Dr Yasmeen Khan and her husband Dr MohdJaved Khan has attended meetings of Ethical Committee And Governing Body also. Patients attendant too was present in meeting of Ethical Committee . After perusing the matter Ethical Committee came to a conclusion that mop (piece of cloth) has (30) been left during surgery (cesarean) by Dr. Yasmeen Khan. The matter was kept in Governing Body of the Uttar Pradesh Medical Council dated 06.03.2012. Till then the patient Mrs. Sabiha Hamid could not attend the Ethical Committee meeting. Instead her husband used to attend the same.
After taking treatment from Dr Yasmeen Khan and the wrapping problems, the complainant approached SGPGIMS Lucknow were Dr. Deepak Kapoor, gynaecologist, found a piece of cloth/mop hanging from pouch of Douglas during vaginal investigation. After pulling mop came out which was laden with faecal matter. Patient alleged that Dr. Yasmeen Khan had left the mop during surgery.
Governing body of Uttar Pradesh medical Council decided that Mrs. Sabiha Hamid should also be seen and cross-examined especially by Dr SP Jaiswar , Prof, Gynaecology, KGMC, Lucknow before coming to a conclusion. On 19.03.2013,Mrs. Sabiha Hamid attended the Ethical Committee meeting and was particularly examined and interrogated by Dr. Jaiswal, Ethical Committee decided that it is beyond doubt that mop was left negligently by Dr. Yasmeen Khan in the abdomen during surgery.
DECISION Ethics Committee and later governing body UP Medical Council have approved the leveled the charges of lackadaisical/negligent performance of surgery and carelessly leaving the mop. On 18.04.2013 Governing Body of Uttar Pradesh medical Council Cabinet discussed the matter at length and decided, keeping in mind, professional conduct. Etiquette And Ethics Regulations-2002 has to suspend the registration of Dr Yasmeen Khan for six months from 01.05.2013 to 31.10.2013 , and her name to be struck off from the register of UP Medical Council. She will not be authorised to work As Surgeon/Physician/Clinician during this period.
Dated; 29.04.2013 Registrar"(31)
The opposite party no 3 filed an appeal before the Medical Council of India. The Medical Council of India vide its order dated 20.10.14 , has said , "the Ethics Committee noted that both the parties i.e, Smt. Sabiha Hamid, Dr. Yasmeen Khan ( treating doctor) and Dr Mohd. Javed Khan have appeared before the Ethics Committee for herring.
The Ethics Committee heard the deposition of both the parties in detail and after going through the clinical records and due deliberation on the issue, the Ethics Committee decided to uphold the decision of UP Medical Council. So, though the appeals mentioned below were disposed off-
Appeal dated 23.05.2013 file by SmtSabiha Hamid against order dated 29.04.13 passed by Uttar Pradesh Medical Council.
Appeal dated 07.07.13 file by Dr Yasmeen Khan against order dated29.04.13 passed by Uttar Pradesh Medical Council .
The recommendation of the Ethics Committee was approved by the Executive Committee at its meeting held on 21st August 2014. "
So it has become clear that the appeal filed against the order of the Uttar Pradesh Medical Council has been dismissed and The Medical Council of India upheld the order of the Uttar Pradesh Medical Council.
We have also seen the enquiry report submitted by three doctors committee headed by Dr. S.P. Gautam, Additional Chief Medical Officer, Prashashan, Bareilly. What they have held in the report is ridiculous. They said that the mop recovered from the private part of the patient is different from the mop used by OP 3. Hence it has not been said that this mop has been used by the said Dr . By going through this report we are of the opinion that this report has been submitted to favour the OP 3 . After the decision of Medical Council of India there is nothing to presume or nothing to say except that the said Dr is guilty of showing negligence, deficiency in services and professional misconduct.
(32)During course of argument it has been admitted by the Counsel of opposite party 3 that she did not practice for six months as directed by UP Medical Council. So it is clear that against the said enquiry report of UP Medical Council, the aggrieved doctor filed appeal before Medical Council of India which has been dismissed by the Medical Council of India . So by the enquiry of UP Medical Council which has been approved by Medical Council of India the opposite party no 3 has been held guilty of leaving the mop in the body of the complainant which was later on removed in SGPGI . During the course of argument the Counsel argued that the complainant was operated before one year and it may happen that this mop might be left at that time. If for the sake of argument it is presumed that this mop was left during first cesarean, during second cesarean the concern Dr was unable to detect it and if she detected it , she left unattended it. It is no argument because the complainant did not complain of any pain after the first cesarean and after the second cesarean she continuously suffered from pain and visited various doctors.
The opposite party no 1 is the hospital where the agreed person was admitted and operated. What are the basic needs of such a hospital dealing with Maternity Care.
Healthcare set-ups are constantly evolving and providing advanced services and medical care. You may be spoilt for choice, but to give you a general idea, we've listed out five essential facilities that you should look out for when choosing a maternity hospital or nursing home.
1. A neonatal intensive care unit (NICU) If your baby is premature, or unwell after she is born, she might need special medical care. To handle such situations, the hospital or nursing home of your choice should have a neonatal intensive care unit (NICU).
The NICU should have special medical equipment such as ventilators, incubators, feeding tubes, phototherapy lights, respiratory monitors, cardiac monitors and so on.
Babies in the neonatal intensive care unit need constant monitoring and 24-hour care from different healthcare professionals. There are also medical staff members whose role is to help you with specific concerns. They'll be valuable sources of information in the days or weeks your baby stays in the NICU.
Also, every NICU is not the same. Some hospitals are equipped to take care of the tiniest babies while others can only care for those 32 weeks and beyond and will need to transfer those more premature.
(33)2. In-house blood bank, laboratory services and pharmacy Blood bank Having access to a blood bank is vital. If you bleed excessively after the birth, you may need a blood transfusion. Make sure well in advance that the hospital or nursing home has access to your blood type. Most hospitals only release blood from their blood bank if the equivalent amount is donated. It's a good idea to have some blood donors ready in case the need arises.
Laboratory services Having an accredited in-house lab can help with timely tests and reports. This can be convenient for both patients and doctors, especially when urgent diagnosis is needed.
Pharmacy A well-stocked pharmacy in the hospital premises will save you the bother of running around if you need any prescription medication. Most in-hospital pharmacies also stock up on toiletries and baby care items. This can be a great time-saver!
3. Good hospital hygiene and healthcare practices The quality of a hospital or nursing home can be gauged from the level of hygiene of the building, staff, equipment, rooms, corridors, waiting areas and bathrooms.
Strict adherence to hygiene and healthcare practices is vital for preventing the transmission of infections. The hospital environment must be safe for patients, doctors, healthcare workers and visitors.
So, always look out for these things when you take a tour of a nursing home or hospital. If possible, get feedback about the hospital wards, rooms, NICU, and operation theatres.
4. Dedicated round-the-clock ambulance service It's best to go with a hospital or nursing home that has its own ambulance service.
If there are complications when you're in labour, you may need to be transferred to a better-equipped hospital. Having an ambulance on call can help make the transfer quicker and seamless.
Some hospitals also have dedicated, specialised transport to handle critical care cases and premature baby transfers.
5. Emergency back-up power system As power cuts are quite common, ensure that your maternity hospital has a 100 per cent power back-up.
It's not just lifts, lights, air-conditioning and fans that will not work if the power is out. Critical care equipment, incubators, and ventilators all need uninterrupted power supply. If these stop working, even a delay of a few seconds can be fatal.
A power outage can also affect round-the-clock water supply, refrigeration, sterilisation technology, communications and access to electronic medical records and data, among other things.
(34)Reputation and quality care are paramount, and some hospitals and clinics do a better job than others. It's a good idea to research and get feedback from friends and family. You could also speak to other parents and parents-to-be in our helpful community.
It was the duty of the hospital to provide all the basic facilities and emergency facilities in case of any untoward happenings. It is the duty of the Dr that she should stay all the time opposite the bed of the patient unless and until the operation is over and the patient has been allowed to go to ICU or Ward. In this case the hospital is also negligent because they want to make money and they have four gotten their oath which was taken before entering into the medical profession. All the above mentioned facilities should be there and if anyone lacks, it will come under the deficiency of service and negligence. It is not clear that whether in addition to a surgeon, there was any Cardiologist, Anaesthesist, and life-saving equipments. It is clear by the averments made that there was Anaesthesist managing the situation and Dr was not there.
We have seen the oath which has been prescribed for the doctors entering into the medical profession. They have to take oath to maintain respect for human life and to practice the profession with cautious and dignity and the health of their patient will their first consideration. Now in this case these three points of the oath has been violated because the concerned doctor did not pay full attention towards her patient and she left a bundle of cotton in the abdomen of the patient showing that she was totally negligent at the time of operation.
This is a case where the maxim res ipsa loquitur is applicable in full strength and as per the various judgment of the Hon'ble courts it is clear that it comes under medical negligent without any exception. The guilt has already been admitted during the enquiry as the opposite party accepted the enquiry report. So in the brain case the complainant has succeeded in proving his case. No doubt the complainant has been admitted in opposite party no1 nephew home where she was operated (35) by opposite party no.3. As far as no.4 and 5 and also 6 and 7 are concerned, they are not liable for the medical evidence. Opposite parties 6 & 7 or only liable to indemnify opposite party to the extent as entered by them with insurance companies. Opposite party no 2 did not perform any role in the cesarean operation so he is not liable to pay any compensation. It is the hospital and opposite party no 3 who were responsible for the said operation. After considering all the facts and circumstances of the case and after going through the various case law is as discussed above, we have the view that the opposite party no 1 and 3 are liable jointly as well as severally to honour the judgment of this commission. This negligence is very serious but we will see the relief claimed by the complainant in the present case. In this case, the complainant has demanded Rs.80 lakhs as compensation. No doubt she has suffered a lot and undergone 3 or 4 operations, one at Bareilly and thereafter at SGPGI. Keeping in view all the circumstances and sufferings, we are of the view that compensation of Rs.50 lakhs will be genuine in this case. The opposite parties no. 1 and 3 are liable for the medical negligence while the opposite parties no.6 and 7 will indemnify their respective insured persons to the extent for which they have been insured. They directed as follows-
The Opposite Parties no.1 and 3 are jointly and severally liable to pay ₹50 lakhs as compensation with interest at a rate of 12% from 01.11.2010 till the date of actual payment. They are also jointly and severally liable to pay ₹ 390,107.28/- to the complainant for various charges received by them during operation and also incurred by the complainant after discharge for her travelling, check up and medication. They are also jointly and severally liable to pay ₹ 84,004 mental agony in addition to ₹ 1 lakh as cost of the proceedings. All these amount will carry interest at the rate of 12% from 01.11.2010 till the date of payment. This order shall be complied with within 30 days from the date of judgment otherwise the rate of interest will be 15% per annum. The opposite parties shall be indemnified to the extent they were insured by the opposite parties no.6 and 7.
(36)ORDER The Complaint Case is allowed with cost. The opposite parties no.1 and 3 are jointly and severally liable to pay ₹ 50 lakhs as compensation with interest at the rate of 12% from 01.11.2010 till the date of actual payment. They are also jointly and severally liable to pay ₹3,90,107.28 to the complainant for various charges received by them during operation and also incurred by the complainant after discharge for her travelling, check up and medication. They are also jointly and severally liable to pay ₹84,000.00 for mental agony in addition to ₹ 1 lakh as cost of the proceedings. All these amount will carry interest at the rate of 12% from 01.11.2010 till the date of payment. This order shall be complied with within 30 days from the date of judgment otherwise the rate of interest will be 15% per annum. The opposite parties shall be indemnified to the extent they were insured by the opposite parties no.6 and 7. If the order is not complied with in 30 days, the complainant will be free to move an application for execution at the cost of the opposite parties no. 1 and 3.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Rajendra Singh) (Sushil Kumar) Member Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Rajendra Singh) (Sushil Kumar) Member Member Jafri, PA II Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER