State Consumer Disputes Redressal Commission
Dr. Sunita Verma vs Smt. Tarini Verma on 3 May, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2014/206
Instituted on : 05.07.2014
Dr. (Mrs.) Sunita Verma, Aged 62 years,
W/o Dr. S.K. Verma,
Gynaecologist,
R/o : Near Anjuman School, Gond Para,
Bilaspur (C.G.) .....Appellant
Vs.
Smt. Tarini Verma, Aged 46 years,
W/o Ram Kumar Verma,
R/o : Village - Khapri,
Tahsil - Nandghat, District Bemetara (C.G.) .....Respondent
PRESENT:-
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES:-
ShriMukesh Sharma, for the appellant.
Shri Rajesh Dubey, for the respondent.
ORDER
Dated: 03/05/2016 PER:- HON'BLE SHRI JUSTICE R.S.SHARMA, PRESIDENT This appeal is directed against the order dated 01.03.2014, passed by the District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth 'District Forum' for short), in Complaint Case No.CC/14/2007. By the impugned order, learned District Forum, has allowed the complaint of the respondent (complainant) and directed the appellant (O.P.) as under :-
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(a) The appellant (O.P.) will pay a sum of Rs.1,00,000/- (Rupees One Lakh) to the respondent (complainant) within a period of one month from the date of order towards medical expenses along with interest @ 9%p.a. from the date of filing of the complaint till realisation.
(b) The appellant (O.P.) will pay a sum of Rs.3,00,000/-(Rupees Three Lakh) to the respondent (complainant) towards compensation for mental agony.
(c) The appellant (O.P.) will pay a sum of Rs.5,000/- (Rupees Five Thousand) to the respondent (complainant) towards cost of litigation.
2. Briefly stated, the facts of the complaint of the respondent (complainant) are that on 15.04.2005 when the respondent (complainant) suffered physical problem, her husband took her with appellant (O.P.). The appellant (O.P.) conducted preliminary test and sent her to Dr. T.C. Gupta for blood, urine test and for sonography she was sent to Lokpriya Colour Sonography and X-ray Centre, Dabripara, Bilaspur. As per instructions given by the appellant (O.P.), the respondent (complainant) got conducted blood, urine and sonography. The report was given to the appellant (O.P.). After perusal of the report, the appellant (O.P.), the appellant (O.P.) prescribed some medicines and told that operation of the uterus is required to be conducted for which a sum of Rs.10,000/- would be incurred. As per // 3 // instructions of the appellant (O.P.), the respondent (complainant) was taking medicines and the appellant (O.P.) told her for conducting operation. As per instructions of the appellant (O.P.), the respondent (complainant) was admitted in the clinic of the appellant (O.P.) on 23.06.2005. The respondent (complainant) paid a sum of Rs.10,000/- to the appellant (O.P.). The appellant (O.P.) conducted operation of the respondent (complainant) and prescribed medicines etc. for which the respondent (complainant) spent money. On 01.07.2005, the appellant (O.P.) opened stitching and after opening the stitching, the flowing of urine started. Regarding flowing of the urine, the appellant (O.P.) told that after opening stitching the water which was stored will gradually come out. Due to above, there is no requirement to worry. The appellant (O.P.) had told that she will discharge the respondent (complainant) on the same day, but looking the problem of the respondent (complainant), the family members did not want her discharge. The respondent (complainant) was suffering from the problem of flowing of urine in entire day. The respondent (complainant) informed regarding the same to the appellant (O.P.), but the appellant (O.P.) assured the respondent (complainant) that problem would be cured by medicines and respondent (complainant) should not bother for flowing of urine, which was completely stopped by medicine. The appellant (O.P.) forcibly discharged the respondent (complainant) with problem regarding flowing of urine and after // 4 // reaching home problem of flowing of urine was continued and was gradually increased. The husband of the respondent (complainant) informed the appellant (O.P.) on 05.07.2005 then the appellant (O.P.) prescribed some medicines and told that if there will no benefit, then come after 2-3 days. There was no improvement in the health of the respondent (complainant) and problem of continuing flowing urine was continued therefore, on 09.07.2005 she came to appellant (O.P.). The appellant (O.P.) examined the respondent (complainant) and prescribed some medicines. The appellant (O.P.) was continuing calling the respondent (complainant). On 17.07.2005 when the respondent (complainant) came to appellant (O.P.) and told the appellant (O.P.) that after taking treatment there is no improvement in her health. The respondent (complainant) contacted with the appellant (O.P.) and the appellant (O.P.) admitted that some mistake was committed by her during operation due to which problem was occurred, but it will gradually disappear. The respondent (complainant) was facing such type of problem continuously, then she went to Samadhan Nursing Home, where she contacted with Dr. Gauri Dutta on 18.07.2005 and Dr. Gauri Dutta advised her to contact with Urologist. Then the respondent (complainant) came to Dr. Sanjeev Jain, Urologist, Jeewan Memorial Hospital, Raipur for check up. After conducting checkup and test Dr. Sanjeev Jain told that operation would be conducted. The operation of the respondent (complainant) // 5 // was conducted by Dr. Sanjeev Jain and thereafter her treatment was continued and on 28.08.2005 she was discharged. Thereafter on 23.09.2005, 05.12.2005 and 07.06.2006 the respondent (complainant) came to Raipur for regular checkup and for treatment. The operation of the uterus of the respondent (complainant) was wrongly done by the appellant (O.P.) due to which operation was conducted by Dr. Sanjeev Jain, Urologist and thereafter treatment was taken for a long time due to which the respondent (complainant) suffered mental agony. The respondent (complainant) had taken treatment from Dr. Sanjeev Jain for continuously six months and thereafter flowing of urine was but till date her physical weakness was not cured because the appellant (O.P.) has negligently treated the respondent (complainant) due to which she is unable to do the domestic work. At present she is unable to perform physical work. Due to mistake committed by the appellant (O.P.) during operation, the respondent (complainant) was suffering from urine problem and she went to the Urologist. After taking treatment from the Urologist, the problem was cured. The appellant (O.P.) committed medical negligence and deficiency in service, therefore, the respondent (complainant) is entitled to get reliefs, as mentioned in the prayer clause of the complaint. Hence, the respondent (complainant) filed consumer complaint before the District Forum and prayed for granting relief as mentioned in the relief clause of the complaint.
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3. The appellant (O.P.) filed her written version and averred that the respondent (complainant) was brought to the clinic of the appellant (O.P.) with complaints of body ache for six months. On examination cervix was hypertrophied and there was cervical erosion. She was advised conservative treatment, her uterus was multiparous and irregular. The appellant (O.P.) diagnosed as pelvic inflammatory diseases and the patient was treated on conservative line, and advised certain investigations. The pathological investigations as advised were done and reports were normal as diagnosed. But the sonography report was bulky uterus, with pelvic inflammatory disease and endocerivicities which confirmed clinical examination of appellant (O.P.). The patient was advised for total abdominal hysterectomy with bilateral salphingo-oophrectomy. The patient was advised for immediate surgery but patient reported to appellant (O.P.) on 23/06/2005 for her surgery, the fees charged from the patient included operation charges, anaesthesia charges, nursing admission charges and inclusive of medicine dispenses during admission of the patient in hospital of appellant (O.P.). The patient was not required to spend for medicine during her admission. No post operative complication were found during admission of the patient at the clinic of the appellant (O.P.) . Sutures were found normal, hence the patient was discharged. If the patient had problems as complained of, the patient ought not to have been discharged by the appellant (O.P.). When the complaint as // 7 // mentioned in the complaint of the respondent (complainant) are required to be dealt after a minimum period of six months, for reasons,
(i) 50% of the patient do not require any surgical correction in course of time. (ii) Healing power of the patient is improved after six months. When the patient reported to appellant (O.P.) on 17.07.2005, the patient was advised for conservative treatment for the reasons mentioned in the foregoing para of the present reply. The patient and her husband did not comply with the advice of the appellant (O.P.) and they consulted other Gynaecologist for removal of their own doubt, who carried sonography made as question mark of diagnosis of VVP which shows that the VVF cannot be confirmed or suspected on sonological examination, it has to be confirmed by a clinical swab test or Intra venous pylogram, which does not appears to be carried out by further treating doctors who attended patient at later stage. The respondent (complainant) has filed the documents which only shows the drugs alleged to have been administered to the patient but the condition of the patient as examined by the treating doctor is not shown on the record which could have revealed the actual position of the patient and expenses charged from the patient were in consonance with the treatment provided to the patient. The appellant (O.P.) is not in a position to comment upon the treatment carried out by Dr. Sanjeev Jain, in lieu of the treatment notes which are presently not available on record. The respondent (complainant) has already completed waiting // 8 // period of six weeks required for healing of such type of complaint. There was no professional deficiency in services by not referring the patient to Urologist immediately. The appellant (O.P.) has taken all precautions required for the patient, as per her own diagnosis. The patient was kept on medicine and wanted to observe their effect in due course of time. The patient did not follow the oral advises of the appellant (O.P.) for carrying out necessary treatment. The contentions of the appellant (O.P.) is supported by notes of Dr. Jain also which appears as "patient had ignored the presence of DJS (L) which should have been removed at six weeks" in patient's discharge report dated 06/02/2005 submitted along with complaint. No cause of action aroused against the appellant (O.P.) on the dates mentioned in the complaint. That fixation of DJ Stent in the ureter and removal of DJ Stent is single day short surgery in the usual course. It appears that the patient stayed in the hospital because of her own whim and indoor ticket requires for justification of her stay in hospital for one month. In the present case there was double ureter and it is a congenital anomaly is diagnosed incidentally, it cannot be predicted before any surgery if such double ureter has an ureteroceal and that is bound to be damaged by any nearby surgery. In the sonography done by G. Dutta there was no retroperitoneal collection of urine, this shows that urgent surgical correction was not required and it could have been healed by itself in due course of time, and in such cases it is but natural procedural // 9 // complication and cannot be blamed as negligence or lack of service. It is curable completely on conservative treatment but the patient did not follow the advice of the appellant (O.P.) The complaint filed by the respondent (complainant) is liable to be dismissed with cost as per provisions of Section 26 of the Consumer Protection Act, 1986.
4. The respondent (complainant) has filed documents. Document No.1 is prescription of Dr. (Smt.) Sunita Verma, document No.2 and document No.3 is Pathology Report of Dr. Gupta Patho Lab, document No.4 is X-ray report of Dr. R.K. Singha, document No.5 is prescription of Dr. (Smt.) Sunita Verma dated 01.07.2005, document No.6 is prescription of Dr. (Smt.) Sunita Verma dated 02/07/2005, document No.7 is Abdomen Report of Dr. Mrs. G. Datta, document No.8 is Pre- operative report of Jeewan Memorial Hospital, document No.9 is Patient Consent, document No.10 are prescriptions of Dr. Sanjeev Jain, document No.11 is treatment papers of Jeewan Memorial Hospital, document No.12 is Inpatient Medical Report of Jeewan Memorial Hospital, document No.13 and 14 are treatment papers of Jeewan Memorial Hospital. The respondent (complainant) has also filed details of expenditure incurred by her in treatment, receipt issued by Neral Pathology Laboratory, Cash Memos of Dau Medical and General Stores, receipt issued by Apollo Diagnostic Centre, Raipur, prescription issued by Dr. Ravindra Thawait, receipt issued by Jeewan Memorial Hospital, receipt issued by Neral Pathology Laboratory, Raipur on // 10 // 30.07.2005, bills issued by Agrawal Travels, Nandghat on various dates, Certificate issued by Dr. Sanjeev Jain on 14.06.2009, Inpatient Medical Report, Pathology Report of Neral Pathology Report, Cross Matching Report, issued by Dr. Ravindra Thawait, Pathology Report of Neral Pathology Report dated 30.07.2005, treatment papers of Jeewan Memorial Hospital.
5. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint of the respondent (complainant) and directed the appellant (O.P.) to pay compensation to the respondent (complainant), as mentioned in para 1 of this order.
6. Shri Mukesh Sharma, learned counsel appearing for the appellant (O.P.) has argued the respondent (complainant) came to the appellant (O.P.) and she had only a complaint regarding body ache for last six months. The appellant (O.P.) advised the respondent (complainant) for conducting sonography and pathology test and the sonograpy was conducted. In the songraphy "USG Image morphology shows bulky uterus and bulky cervix along with pelvic inflammatory disease and endocervicitis" is mentioned. Therefore, conservative treatment was started. The respondent (complainant) remained stayed in the clinic of the appellant (O.P.) in her sweet will. No post operative complications were found. Sutures were found normal, // 11 // therefore, the respondent (complainant) was discharged. If the patient had problems, then the appellant (O.P.) would have never discharged the respondent (complainant). The respondent (complainant) had double ureter, which is a congenital anomaly and found rarely. If such double ureter has an ureteroceal and surgery is conducted of this type of ureter it is bound to be damaged by nearby parts. The respondent (complainant) did not adduce any evidence to prove that any deficiency in service has been committed by the appellant (O.P.). The respondent (complainant) has not obtained any expert opinion. Even the respondent (complainant) has not filed affidavit of Dr. Sanjeev Jain. The questionnaire was sent by the respondent (complainant) to the appellant (O.P.) and the appellant (O.P.) gave her answer in the form of affidavit in which she specifically stated that "she treated the respondent (complainant) in proper manner and advised for conservative treatment. The appellant (O.P.) further stated that she is a qualified Gynecologist, and she was trained in Ultrasonography Studies . The injury to ureter is caused hardly in 1.5% to 2% patient due to various reasons. " Learned District Forum did not consider the above aspects. The impugned order passed by the District Forum is erroneous and is not sustainable in eye of law. The learned District Forum erred in making interpretation of provision of law. It is bounded duty of the District Forum to obtain expert opinion from the expert, but no expert opinion was obtained by the District Forum.
// 12 // Even the respondent (complainant) has not filed any expert opinion. For want of expert opinion and affidavit of Dr. Sanjeev Jain, it cannot be held that the appellant (O.P.) committed medical negligence, therefore, the impugned order passed by the District Forum, is liable to be set aside.
7. Shri Rajesh Dubey, learned counsel appearing for the respondent (complainant) has supported the impugned order passed by the District Forum and has argued that the respondent (complainant) contacted with the appellant (O.P.) on 15.04.2005 and on being instructions given by the appellant (O.P.), the respondent (complainant) got conducted blood and urine test and also sonography test and the above reports were given by the respondent (complainant) to the appellant (O.P.) for perusal. After perusal of the reports, the appellant (O.P.) prescribed medicines, but the medicine had not given response to the respondent (complainant). The respondent (complainant) was admitted in the hospital of the appellant (O.P. on 23.06.2005 and a sum of Rs.10,000/- was paid by the respondent (complainant) to the appellant (O.P.). The appellant (O.P.) conducted operation of the respondent (complainant) on 01.07.2005 and stitching was opened. After opening the stitching, it is found that flowing of urin was started. The respondent (complainant) made complaint in this regard to the appellant (O.P.), then the appellant (O.P.) told that some time the problem is occurred and medicine was given but // 13 // medicine was not responding to the respondent (complainant) and flowing of urine was remained continue. Even then the appellant (O.P.) discharged the respondent (complainant) from her clinic. The respondent (complainant) continuously contacted with the appellant (O.P.) but the problem was remained continued. The respondent (complainant) went to Samadhan Nursing Home, Jarhabhatha, Bilaspur (C.G.). Dr. Gauri Dutta advised the respondent (complainant) to contact with Urologist. Thereafter the respondent (complainant) came to Dr. Sanjeev Jain, Jeewan Memorial Hospital, Raipur for check up. Dr. Sanjeev Jain told the respondent (complainant) that another operation is required to be conducted. The Sajeev Jain conduced operation, then flowing of urine was stopped. The above problem suffered by the respondent (complainant) was due to conducting operation in negligent manner by the appellant (O.P.). The principle of res ipsa lognites is applicable in the present case, therefore, there is no necessity to obtain further expert opinion and Dr. Sanjeev Jain, is an expert Urologist, who gave Certificate and specifically mentioned that injury in urter was occurred due to hysterectomy operation. The impugned order passed by the District Forum, is reasonable and does not call for any interference by this Commission. The appeal is liable to be dismissed. He placed reliance on V. Kishan Rao Vs. Nikhil Super Speciality Hospital, 2010 Legal Search (SC) 184.
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8. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
9. In the Certificate dated 14.06.2005 issued by Dr. Sanjeev Jain, Urologist, it is mentioned thus :-
"This is to certify that Smt. Tarni Verma W/o Shri Ram Kumar Verma, 35 years, was admitted in Jeewan Memorial Hospital, Raipur under my care. She had a history of operative removal of her uterus in June, 2005 following which she had continuous dribbling of urine over which she had no control. She was investigated and diagnosed as a case of Uretero Vaginal Fistula (left) which was likely to have developed as a result of injury to her left ureter during the Hysterectomy operation.
I did a double barrel reimplantation of the involved ureter by passing the damage segment. The anaslomosis healed will and this patient was discharged free of original symptons. This operation infact led to restoration of kidney function which otherwise would have been lost. In my opinion, Smt. Tarni Verma developed the Uretero-vaginal fistula as a result of injury to one of her two ulcers on the left side during her hysterectomy operation.
This injury could have been avoided if due care was taken during operation."
10. The appellant (O.P.) denied that the complications to the respondent (complainant) was occurred during her admission in the hospital of the appellant (O.P.), but the appellant (O.P.) contended that the above complication was occurred to the respondent (complainant) after 15 days of her discharge from the hospital and when the respondent (complainant) came to appellant (O.P.) then the appellant // 15 // (O.P.) advised the respondent (complainant) to take medicines. According to the appellant (O.P.) the complication occurred was normal, if the respondent (complainant) would have followed advice of the appellant (O.P.), she would have alright and there was no requirement for conducting second operation, but the appellant (O.P.) did not file opinion of any doctor in support of above averment and also did not try to make averment of any doctor in his support. In this circumstance, without any supportive evidence, the averment of the appellant that the complication occurred during operation is normal, is not acceptable.
11. Learned counsel for the appellant (O.P.) has contended that the expert opinion was not obtained by the respondent (complainant). The above contention is not acceptable. The respondent (complainant) specifically pleaded that she had gone to Dr. Sanjeev Jain, who is Urologist and Dr. Sanjeev Jain gave Certificate. In Certificate Dr. Sanjeev Jain specifically mentioned that "in his opinion, Smt. Tarni Verma developed the Uretero-vaginal fistula as a result of injury to one of her two ulcers on the left side during her hysterectomy operation. This injury could have been avoided if due care was taken during operation."
12. In the instant case, after opening stitching the respondent (complainant) made complaint regarding flowing of urine, but the // 16 // appellant (O.P.) did not bother about her problem and forcibly discharged the respondent (complainant).
13 In P.B. Desai (Dr.) vs. State of Maharashtra & Anr. IV (2013) CPJ 63 (SC), Hon'ble Supreme Court has held that:
"31. However, a failure to act, by itself does nothing to screen out mere fantasies. It is the actor's failure to act in the light of his capacity to do so that suggests the actor's willingness to go beyond mere fantasizing and to have the harm or evil of the offence occur. Even then however, the screening effect seems weak; "letting something happen"
simply does not carry the same implication of resolute intention that is shown in causing something to happen by affirmative action. While an actor's failure to perform a legal duty provides some evidentiary support for the existence of an intention to have the harm or evil occur, the force of the implication is similarly week. Inaction often carries no implication of intention unless it is shown that the actor knows of his or her duty to act and the opportunity to do so.
32. Liability for an omission requires a legal duty to act; a moral duty to act is not sufficient. The duty may arise either from the offence definition itself or from some other provision of criminal or civil law. A duty arises from the former when an offence is defined in terms of omission. This is the situation where the Legislature has made it an offence. A legal duty to act may also be created by a provision of either criminal or civil separate from the offence charged. For example, a duty under the Maharashtra Medical Council's Code of Ethics and Maharashtra Medical Council Act, 1965.
39. It is not necessary for us to divulge this theoretical approach to the doctor-patient relationship, as that may be based on model foundation. Fact remains that when a physician agrees to attend a patient, there is an unwritten contract between the two. The patient entrusts himself to the doctor and that doctor agrees to do his best, at all times, for the patient. Such doctor-patient contract is almost always an implied contract, except when written informed consent is obtained. While a doctor cannot be forced to teat any person, he/she has certain responsibilities for those whom he/she accepts as patients. Some of these responsibilities may be recapitulated, in brief :
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(a) to continue to treat, except under certain circumstances when doctor can abandon his patient;
(b) to take reasonable care of his patient;
(c) to exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and patient where the patient is told, in effect, "Medicine is not an exact science. I shall use my experience and best judgment and you take the risk that I may be wrong. I guarantee nothing."
(d) Not to undertake any procedure beyond his control:
This depends on his qualifications, special training and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure/treating complicated case.
(e) Professional secrets: A doctor is under a moral and legal obligation not to divulge the information/ knowledge which he comes to learn in confidence from his patient and such a communication is privileged communication.
Conclusion: The formation of a doctor-patient relationship is integral to the formation of a legal relationship and consequent right and duties, forming the basis of liability of a medical practitioner, due to the very nature of the medical profession, the degree of responsibility on the practitioner is higher than that of any other service provider. The concept of a doctor-patient relationship from the foundation of legal obligations between the doctor and the patient.
In the present case, as already held above, doctor-patient relationship stood established, contractually, between the patient and the appellant.
(2) Duty of Care which a doctor owes towards his patient.
40. Once, it is found that there is 'duty to treat' there would be a corresponding 'duty to take care' upon the doctor qua/his patient. In certain context, the duty acquires ethical character and in certain other situations, a legal character. Whenever the // 18 // principle of 'duty to take care' is founded on a contractual relationship, it acquires a legal character. Contextually speaking, legal 'duty to treat' may arise in a contractual relationship or Governmental hospital or hospital located in a public sector undertaking. Ethical 'duty to treat' on the part of doctors is clearly covered by Code of Medical Ethics, 1972. Clause 10 of his Code deals with 'Obligation to the Sick' and Clause 13 cast obligation on the part of the doctors with the captioned "Patient must not be neglected". Whenever there is a breach of the aforesaid Code, the aggrieved patient or the party can file a petition before relevant Disciplinary Committee constituted by the concerned Stated Medical Council."
14. In Malay Kumar Ganguly vs. Dr. Sukumar Mukharjee and others 2009) 9 SCC 221, Hon'ble Supreme Court has observed thus :-
"The standard of duty to care in medical services may also be inferred after factoring in the position and stature of doctors concerned as also the hospital : premium stature of services available to patient certainly raises a legitimate expectation. The Court is not oblivious that source of the said doctrine is in administrative law. A little expansion of the said doctrine having regard to an implied nature of service which is to be rendered, would not be quite out of place. AMRI makes a representation that it is one of the best hospitals in Kolkata and provides very good medical care to its patients. Senior Counsel appearing for the respondents, when confronted with the question in regard to maintenance of the nurses' register, urged that it is not expected that in AMRI regular daily medical check-up would not have been conducted. The Court thought so, but the records suggest otherwise. The deficiency in service emanates therefrom. Even in the matter of determining deficiency in medical services, if representation is made by a doctor that he is a specialist and ultimately it turns out that he is not, deficiency in services would be presumed".
"Patients, by and large are ignorant about disease or side of adverse effect of a medicine. Ordinarily patients are to be informed about // 19 // admitted risk, if any. If some medicine has some adverse effect or some reaction is anticipated, he should be informed thereabout. It was not done in the instant case. Law on medical negligence also has to keep up with advances in medical science as to treatment as also diagnostics. Doctors increasingly must engage with patients during treatment especially when line of treatment is a contested one, and hazards are involved. Standard of care in such cases will involve duty to disclose to patients about risk of serious side effects or about alternative treatments. In the times to come, litigation may be based on theory of lack of informed consent. A significant number of jurisdictions determine existence and scope of doctor's duty to inform based on information a reasonable patient would find material in deciding whether or not to undergo proposed therapy. In this respect, the only reasonable guarantee of a patient's right of bodily integrity and self- determination is for the courts to apply a stringent standard of disclosure in conjunction with a presumption of proximate cause. At the same time, a reasonable measure of autonomy for doctor is also pertinent to be safeguarded from unnecessary interference".
15. In M/s Singhal Maternity and Medical Centre & Anr. vs. Master Nishant Verma & Ors., 2014 (2) CPR 464 (NC), Hon'ble National Commission has observed thus :-
"11. What constitutes medical negligence based on the touchstone of the Bolam's test [Bolam v. Friern Hospital Management Committee [(1957) 1 WLR 582], is well settled through a number of judgments of the Hon'ble Supreme Court, including in Jacob Mathew Vs. State of Punjab & Anr. (supra) and Indian Medical Association vs. V.P. Shantha and Ors. [(1995) 6 SCC 651]. Gleaned from these judgments, the issues pertaining to what constitutes medical negligence, inter alia are (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of // 20 // time; and (ii) Whether the doctor adopted the practice of clinical observation diagnosis - including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field. In this connection, the Hon'ble Supreme Court in Jacob Mathew (supra) elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury's Laws of England (4th Edn., Vol. 30, para 35, as follows :-
"35. The practitioner must bring to his task a reasonable degree of Skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competent, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way...."
16. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good.
// 21 // Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially 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 // 22 // the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.
Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.
// 23 // Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation.
Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
17. In Dr. Laxman Balkrishna Joshi v. Dr. Trimnsk Bapu Godbole and anothert, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed that "The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the // 24 // purpose, such a person when consulted by a patient owes him certain duties, viz.. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires".
18. It appears that the respondent (complainant) suffered problem after conducting operation by the appellant (O.P.) i.e. post operative problem due to conducting operation by the appellant (O.P.) in negligent manner. The respondent (complainant) also specifically pleaded that she continuously contacted with the appellant (O.P.), but flowing of urine was not stopped. Then she went to Samadhan Nursing Home, Jarhabhatha, Bilaspur and on the advice of Dr. Gauri Dutta, she went to Dr. Sanjeev Jain. After treatment given by Dr. Sanjeev the flowing of urine was stopped. The certificate given by Dr. Sanjeev Jain is reliable, therefore on the basis of the certificate it appears that the appellant (O.P.) conducted operation of the respondent (complainant) negligently and during operation the appellant (O.P.) did not take appropriate precautions and skill due to // 25 // which respondent (complainant) suffered complications resulting flowing of urine.
19. The respondent (complainant) also pleaded that discharge summary was not given by the appellant (O.P.). Even discharge summary has not been filed by the appellant (O.P.). The discharge summary is a document in which the details of hospitalization of a patient is mentioned. It is prepared when the patient is released from the hospital and incorporated in her permanent medical record. It should ideally include the explanation for the patient's admission, a record of her complaints, physical findings, laboratory results etc.
20. In the instant case, the Discharge Summary was not given by the appellant (O.P.) to the respondent (complainant) when the respondent (complainant) was discharged from the clinic of the appellant (O.P.). The physical finding, results, follow up care and other details have not been mentioned by the appellant (O.P.) and even the appellant (O.P.) did not produce the same. It is the professional duty of the medical practitioner to issue discharge summary, but the discharge summary was not prepared by the appellant (O.P.), which comes in the category of deficiency in service.
21. Therefore, the respondent (complainant) has been able to prove that the appellant (O.P.) committed medical negligence. The finding recorded by the District Forum, is just and proper. The impugned // 26 // order dated 01.03.2014, passed by learned District Forum, is just and proper and does not suffer from any irregularity or illegality and does not call for any interference.
22. Therefore, the appeal filed by the appellant (O.P.) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S.Sharma) (Ms. Heena Thakkar) (D.K. Poddar)
President Member Member
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