State Consumer Disputes Redressal Commission
Sanjay Hospital & Maternity Centre vs Ram Chander on 20 November, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986) Date of Decision: 20.11.2006 Appeal No.A-1487/2000 (Arising from the order dated 31.03.2000 passed by District Forum(South West), Sheikh Sarai, New Delhi in Complaint Case No.56/1999) Sanjay Hospital & Maternity Centre . Appellant RZ-11, Main Road, Palam Colony, New Delhi Versus Sh. Ram Chander .. Respondent RZ-3A/1, C56, Part-II, Palam Colony, New Delhi. CORAM: Justice J.D.Kapoor President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D.Kapoor (Oral)
1. On account of having wrongly diagnosed the disease of the respondent and having performed operation/surgery for (R) Inguinal Hernia, the appellant hospital where the operation was performed has been vide impugned order dated 31.03.2000, found guilty for deficiency in service i.e. medical negligence and directed to pay Rs.20,000/- as compensation for mental agony and trauma undergone by the respondent.
2. Feeling aggrieved the appellant has preferred this appeal.
3. The case of the respondent before District Forum was that he had been suffering from weakness, loss of appetite, abdomen pain and constipation and when he approached Dr. P.K. Gupta, the treatment did not yield the desired results. Thereupon, he approached the appellant who admitted him in the hospital for surgery of (R) Inguinal Hernia and was operated on 28.05.1996. He remained admitted in the hospital upto 03.06.1996. However, inspite of operation his condition did not improve. He then consulted Banwari Lal Charitable Hospital where his hemoglobin was found 7. He then secured treatment of B.D. Sharma Post Graduate Institute at Rohtak where he was operated for C.A. Colon, whereafter he was cured and his hemoglobin had also increased. He alleged that the appellant wrongly and negligently and without due care operated him for Hernia, which was not all required as the appellant did not diagnose the disease properly and the operation performed by the appellant complicated the matter further.
4. It is not disputed that the respondent was admitted in the appellant hospital where he was operated upon for Inguinal Hernia on 28.05.1996. It is also not disputed that the appellant hospital provides para medical services to the patients who choose to be operated and treated by the doctors of their choice in the hospital. The appellant also provides specialist doctors who charges fees from the hospital. Services of one Dr. Kartik Saxena was availed by the appellant hospital who operated the respondent for the aforesaid disease. When respondent did not improve he consulted Banwari Lal Charitable Hospital where his hemoglobin was found 7, thereafter he approached Pt. B.D. Sharma Post Graduate Institute of Medical Sciences, Rohtak where he was operated for C.A. Colon and after this operation he became alright.
5. It was revealed that the appellant was wrongly operated by the respondent for Inguinal Hernia, which was not at all required because the disease was not diagnosed properly.
6. Whenever any Nursing Home or Hospital or medical center avails the services of any doctor by outsourcing it or by keeping him on his panel or on the list of their consultants or treating doctor, the said hospital/nursing home/medical center is liable for the acts of omission and commission and the negligence of the said doctor, as they receive consideration from the patient directly part of which is paid to the treating doctor.
7. In the instant case, the question was whether the treating doctor Dr. Kartik Saxena had committed any negligence in diagnosing the disease wrongly and subsequently carrying operation in wrong manner as after the operation hemoglobin also fell, until he was again operated for C.A. Colon by Pt. B.D. Sharma Post Graduate Institute of Medical Sciences, Rohtak. Doctor at Rohtak noticed the problem in the Colon and concluded that the patient had cancerous development in intestine for which he operated upon him. Initially problem of the respondent was weakness, loss of appetite, abdomen pain and constipation for which he was diagnosed wrongly and operated upon for Inguinal Hernia whereas the problem was in Colon.
8. The criterian for determining the medical negligence of the doctor as evolved by the judicial decisions is a test popularly known as Bolam Test. This test was laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
9.
Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
10. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence.
Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3)A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.(4)
The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
11. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
12. In view of the aforesaid criteria, there is no escape from the conclusion that the appellant was negligent in firstly not diagnosing the disease properly and secondly by performing the operation in a manner which did not provide any relief and rather resulted in the continuous bleeding from his anus and fell in the hemoglobin. Doctors of Rohtak Hospital had to perform another operation as the actual problem was of C.A. Colon whereas appellant operated the respondent for Hernia.
13. Foregoing reasons persuade us to dismiss the appeal being devoid of merit. Payment shall be made within one month.
14. FDR, Bank Guarantee, if any, deposited by the appellant be returned to the appellant forthwith under proper receipt.
15. A copy of this order, as per the statutory requirements be forwarded to the parties, free of charge and also to the concerned District Forum and thereafter the file be consigned to the Record Room.
Announced on 20th day of November, 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri