State Consumer Disputes Redressal Commission
Dr Nutan Jain vs Nirmala on 11 March, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2008/1346 ( Date of Filing : 16 Jul 2008 ) (Arisen out of Order Dated in Case No. of District State Commission) 1. Dr Nutan Jain a ...........Appellant(s) Versus 1. Nirmala A ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 11 Mar 2022 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Appeal No. 1346 of 2008 Dr. Nutan Jain, Vardhman Trauma & Infertility Pvt. Ltd, A-36, South Civil Lines, Mahavir Chowk, Muzaffarnagar. ...Appellant. 1- Smt. Nirmala w/o Mukesh Kumar, R/o Vill. Bhamela, PS, Titavi, PO, Jasoi, Distt. Muzaffarnagar. 2- The Oriental Insurance Co. Ltd., Prakash Chowk, Muzaffarnagar through the Branch Manager. .......Respondents. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri Alok Kumar Singh , Advocate for appellant. Sri S.P. Singh, Advocate for the respondent no 1. None for the respondent no 2. Date : 1.4.2022 JUDGMENT
Per Mr. Rajendra Singh, Member: This appeal has been filed under section 15 of the Consumer Protection Act, 1986 against the judgment and order dated 13.06.2008 passed by the Learned District Forum, Muzaffarnagar passed in the complaint case no.121 of 2003, Smt. Nirmala Vs. Dr. Nutan Jain by which the learned Forum awarded Rs.1 lakh as compensation for negligence in the treatment of the complainant's child and Rs.20,000 as compensation for the expenses of treatment, mental and physical suffering and Rs.5,000 towards costs of the case.
The brief facts of the appeal are that, that the complainant had not disclosed any cause of action. It was (2) neither pleaded nor proved by the complainant as to what was the negligence committed by the appellant and in what manner she was supposed to act and how she failed to act in that expected manner. In the absence of pleading or proof of negligence, the learned District Forum erred in allowing the claim. The learned District Consumer Forum has itself manufactured a ground to give the finding of negligence against the appellant. It was not at all mentioned in the complaint or in the supporting affidavit that the appellant had committed negligence by not using fetal MRI in order to assess brain anatomy and to verify fetal biometry when the complainant had microcephaly history. The learned Forum gave the finding that the Appellant had committed negligence by non-user of fetal MRI in the internal examination of the complainant. The learned District Forum grossly erred in holding appellant negligent on account of non-user of fetal MRI in respect of the treatment of complainant done at Muzaffarnagar in the year 2000, when the facility for the fetal MRI was not available in our country. The learned Forum ordered holding the appellant negligent even though there was nothing in the report of PGI, Chandigarh against the method of internal examination adopted by the appellant. In the absence of any contrary medical opinion in the report of the PGI, the learned Forum erred in holding the appellant negligent on the basis of opinion expressed at seventh page of the medical literature attached with the report of the PGI, Chandigarh.
(3)The learned Forum erred in directing PGI, Chandigarh by order dated 26.09.06 to submit medical opinion regarding Sonographic Test by the appellant during the treatment of the complainant. Section 13 (c) of The Consumer Protection Act, 1986 is specifically empowers the District Consumer Forum to send the sample of the defective to appropriate laboratory for proper analysis or test of the goods. The learned District Forum has not been authorised to seek opinion of the expert in respect of the point of determination before it. It is a function of the parties to support the case by order, documentary or opinion evidence. The learned Forum erred in entering the arena of dispute by itself directing PGI, Chandigarh to submit its opinion. Such opinion therefore, cannot be used as evidence in the case. The learned District Forum has acted without jurisdiction. The appellant had conducted sonographic test upon the complainant as per standard procedure for assessing the development of the child in the womb and for assessing the onset, if any, of microcephaly. She can not be held guilty of negligence even if the body of medical men holds a different opinion regarding conclusions drawn by her on the basis of the tests. There was no deficiency of service in the treatment of the complainant. The complainant itself discloses that the affliction of microcephaly was detected in the daughter of the complainant for the first time when she had attained the age of eight months. Since microcephaly could develop even after birth, the complainant cannot be accused that (4) microcephaly had developed in a child under pregnancy but the appellant had failed to detect it. The appellant had not acted negligently in the treatment of the complainant and there is no evidence on record to prove it.
Therefore, it is humbly prayed that this Hon'ble Commission may be pleased to allow the appeal and the impugned judgment and order dated 13.06.08 passed by the Learned District Consumer Forum, Muzaffarnagar passed in the complaint case no 121 of 2003, Smt. Nirmala Vs. Dr. Nutan Jain be set aside.
We have heard the learned counsel for the appellant Mr. Alok Kumar Singh , learned counsel for the respondent no.1 Mr. S.P. Singh and perused the pleadings, evidence and documents on record. We have also perused the impugned judgment of the Learned District Forum.
In this case, the daughter the complainant aged about two and half years, was suffering from any ailment and she could neither sit not speak. When the complainant was pregnant, she was under the treatment of Dr. Renu. At the time she came to know by way of ultrasound examination that the child in womb is not perfect and the child had small head. In the circumstances the complainant, on the advice of some of the person, started her treatment from opposite party no.1. The opposite party no.1 examined the complainant and also ultrasound was done and after perusing all the reports she told the complainant that the child is perfect. When the complainant after eight months of pregnancy, went to opposite party for checkup, the oppsite party no.1 told the complainant that delivery should (5) be done while there was 15 days remaining in nine months. But on the advice of opposite party no.1, she got herself admitted in the hospital of the opposite party. On 25 August 2000, she gave birth a daughter and opposite party no.1 told that the child is normal. When eight months passed and the child did not show any action, as the other children do, the complainant went to Dr. Gangal to show child who on the examination of child told that she is mentally handicapped meaning thereby her head is small and advised her to go to Meerut or Delhi for CT scan.
The complainant took her child to AIMS on 05.06.2001. CT scan was done on 03.07.2001 and the report revealed the left ventricle dilated. She has been referred to doctor expert in brain disease, who told that there is no proper growth of the brain and the child has a small head. She was again referred to advisor doctor who told that the child could not be cured. This disease can be diagnosed during child in womb. The child of the complainant is like a living dead body. All this happened due to negligence and for not giving right advice.
The complainant no.1 has stated that complainant was treated with proper care and caution and no negligence has been shown in the treatment. She was treated according to the guidelines of medical science and she was given proper advice from time to time. The head of the child at 37th week should be 286 MM while it was more than this prescribed measure. The child of the complainant does not come in the category of microcephaly hence there was no deficiency in service attended by the opposite parties.
(6)World Health Organisation working on microcephaly innovation to Zeika virus has published an article on 16.02.2018 which is as follows (Microcephaly - WHO - World Health Operation.
https://www.who.int › Newsroom › Fact sheets › Detail) Microcephaly is a condition where a baby is born with a small head or the head stops growing after birth.
Microcephaly is a rare condition. One baby in several thousand is born with microcephaly.
The most reliable way to assess whether a baby has microcephaly is to measure head circumference 24 hours after birth, compare the value with WHO growth standards, and continue to measure the rate of head growth in early infancy.
Babies born with microcephaly may develop convulsions and suffer physical and learning disabilities as they grow older.
There are no specific tests to determine if a baby will be born with microcephaly, but ultrasound scans in the third trimester of pregnancy can sometimes identify the problem.
There is no specific treatment for microcephaly.
Microcephaly is a condition where a baby has a head size much smaller compared with other babies of the same age and sex. Head size is an important measurement to monitor a child's brain growth. The severity of microcephaly ranges from mild to severe. Microcephaly (7) can be present at birth (congenital) or may develop postnatally (acquired).
Scope of the problem Microcephaly is a rare condition. Reported estimate incidence of microcephaly has wide variation due to the differences in the definition and target population.
Increased number or clustering of cases of microcephaly have been reported in context of outbreaks of Zika virus infection. The most likely explanation of available evidence is that Zika virus infection during pregnancy is a cause of congenital brain abnormalities including microcephaly.
In addition to microcephaly, a range of manifestations of varying severity has been reported among newborns that were exposed to Zika virus in utero. These include malformations of the head, seizures, swallowing problems, hearing and sight abnormalities. Other outcomes associated with Zika virus infection in utero may involve miscarriages and stillbirths. Together, this spectrum is referred to as 'congenital Zika virus syndrome.' Diagnosis Early diagnosis of microcephaly can sometimes be made by fetal ultrasound. Ultrasounds have the best diagnosis possibility if they are made at the end of the second trimester, around 28 weeks, or in the third trimester of pregnancy. Often diagnosis is made at birth or at a later stage.
Babies should have their head circumference measured in the first 24 hours after birth and compared (8) with WHO growth standards. The result will be interpreted in relation to the gestational age of the baby, and also the baby's weight and length. Suspected cases should be reviewed by a paediatrician, have brain imaging scans, and have their head circumference measured at monthly intervals in early infancy and compared with growth standards. Doctors should also test for known causes of microcephaly.
Causes of microcephaly There are many potential causes of microcephaly, but often the cause remains unknown. The most common causes include:
infections during pregnancy: toxoplasmosis (caused by a parasite found in undercooked meat), Campylobacter pylori, rubella, herpes, syphilis, cytomegalovirus, HIV and Zika;
exposure to toxic chemicals: maternal exposure to heavy metals like arsenic and mercury, alcohol, radiation, and smoking;
pre- and perinatal injuries to the developing brain (hypoxia-ischemia, trauma);
genetic abnormalities such as Down syndrome; and severe malnutrition during fetal life.
Based on a systematic review of the literature up to 30 May 2016, WHO has concluded that Zika virus infection during pregnancy is a cause of congenital brain abnormalities, including microcephaly; and that Zika virus is a trigger of Guillain-Barré syndrome.(9)
Signs and symptoms Many babies born with microcephaly may demonstrate no other symptoms at birth but go on to develop epilepsy, cerebral palsy, learning disabilities, hearing loss and vision problems. In some cases, children with microcephaly develop entirely normally.
Treatment and care There is no specific treatment for microcephaly. A multidisciplinary team is important to assess and care for babies and children with microcephaly. Early intervention with stimulation and play programmes may show positive impacts on development. Family counselling and support for parents is also extremely important.
WHO response WHO has been working closely with countries affected by Zika virus and related complications on the investigation of and response to the outbreak since mid-2015.
The Strategic Response Framework and Joint Operations Plan outlines steps that WHO is taking with partners to respond to Zika and potential complications.
Working closely with affected countries on the Zika outbreak investigation and response and on the unusual increase in microcephaly cases.
Engaging communities to communicate the risks associated with Zika virus disease and how they can protect themselves.(10)
Providing guidance and mitigating the potential impact on women of childbearing age and those who are pregnant, as well as families affected by Zika virus.
Helping affected countries strengthen care for pregnant women and the families of children born with microcephaly.
Investigating the reported increase in microcephaly cases and the possible association with Zika virus infection by bringing together experts and partners.
Describing the full spectrum of congenital Zika virus syndrome, which may evolve, as part of the WHO Zika virus research agenda.
Therefore it is clear that this microcephaly can be investigated during second trimester or third trimester usually during 28th week of pregnancy. So as per guidelines or suggestions by WHO no microcephaly can very well be established during pregnancy particularly in the second or third trimester or within 24 hour is after birth. It shows that there is no need of fetal MRI . It has been argued by the appellant side that there was no fetal MRI in India. What is fetal MRI and when did it come to India?
A fetal MRI is a noninvasive imaging test that offers detailed information about anatomic structures of the fetus, providing clear, high-resolution images. MRI, which stands for magnetic resonance imaging, uses a magnetic field, rather than radiation, to obtain pictures for evaluation. In an (11) ultrafast fetal MRI, images are quickly captured using a "snapshot" technique.
Fetal MRI can supplement the information obtained from your high-resolution fetal ultrasound and can provide additional information regarding your baby's diagnosis. It is performed in the 2nd or 3rd trimester of pregnancy. This type of examination is used to evaluate abnormalities in your baby's brain, spine, and body. MRI may be used to confirm an ultrasound diagnosis or add significant diagnostic information in complex cases.
The ultrafast fetal MRI technique was refined here at Children's Hospital of Philadelphia. Our fetal imaging team performs more than 600 fetal MRIs every year, in addition to the 21,000 MRI's performed annually on children ranging from the first day of life to 18 years and beyond.
A dedicated fetal MRI service was started in 2008, Led by Dr. A.S. Arora in India. We have a 3T Philips scanner and take single shot ultra fast sequences generally without sedating the fetus. High resolution imaging within the established safety parameters is the future of fetal diagnostics and Dr. Arora believes that our protocols match the global standards of care.
We are constantly updating our imaging protocols and exploring new avenues which allow 3D reconstruction and better anatomical delineation.
Fetal MRI is the MRI evaluation of the Fetus during pregnancy for specific clinical indications, without causing any risk to fetus and to the ongoing pregnancy.(12)
Mumbai: Global Hospitals, Mumbai performed its first fetal Magnetic Resonance Imaging (MRI) Scan earlier this week (as per news article of The Hans India 14 number 2014). A woman with a pregnancy of 19 weeks was advised to undergo a fetal MRI. This was because the small brain of the foetus, also called the cerebellum was not clearly visualised on routine ultrasound, thereby raising a concerned on the health of the child at a future stage, as termination of pregnancy is possible only up to 20 weeks.
But from the various articles and from the guidelines of WHO ultrasound is sufficient to detect the microcephaly if done within second or third trimester especially 28 weeks of pregnancy . So to say that in excess of fetal MRI the microcephaly cannot be detected is not correct.
Now we again the facts of present case. In this case and expert opinion has also be summoned from PGI , Chandigarh which also supports the case of the complainant and when we have perused this opinion, the ultrasound was done according to the World Health organization sessions that is second or third trimester. This is the report summoned by the court and presented by a team of the doctors of PGI, Chandigarh. Expert evidence is admissible in evidence as per evidence act. No other expert opinion has been filed by the appellant which may disapprove this report. The appellant has said that learned District Forum was not authorised to seek the opinion of the expert. For the proper adjudication of any matter the court has ample power to seek expert opinion from the well (13) established institution in the country or well-known doctors. There is no bar in the act that the court cannot summon any report.
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.
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.(14)
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 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 (15) 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 (16) 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 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional status and 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 (17) 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) SCC513 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 (18) 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 negligence 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.This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
The thing speaks for itself is the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this maxim .
The injury caused to the plaintiff shall be a result of an act of negligence.(19)
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 Achutrao Haribhau Khodwa 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 (20) 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.
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 (21) 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.
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.(22)
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.
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.(23)
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.
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 (24) 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, (25) 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 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. {Mark Luney 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 (26) operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth Rs.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 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:(27)
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 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 (28) 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.(29)
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.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 (30) 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 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 (31) 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, 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. Kaushik Nandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs.77,07,45,000/-(32)
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 is no substance. The contention (33) 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 Hon'ble 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 Hon'ble 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.(34)
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. 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.(35)
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 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 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 (36) 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 deficiency in service established on the part of different doctors and hospitals.(37)
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/- (rounded of to 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] (38)
(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 .
(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.
Again we come to the present case. The appellant has not submitted the discharge summary of the patient, the various pathological tests performed by him or advised by him to be performed from outside. It was the duty of the doctor as well as the nursing home to take utmost care in all such cases of childbirth from the very beginning till delivery and after delivery. Is there is any percent of doubt regarding the health or conduct of the mother or child, it is the duty to take the best opinion from the best doctor/surgeon. The appellant/opposite party has stated in his written statement that she had no knowledge regarding three previous abortions and treatment given by Dr Renu Gupta . It is really strange that gynaecologist after careful examination of a pregnant lady very well knew that abortion took place earlier. Also on the query with patient or her wards they came to know about the facts regarding prior abortions and evidences so no one can believe that the (39) gynaecologist was unable to know the previous history of the pregnant lady. The appellant/opposite party has said in his written statement that the answering respondent challenges the complainant to produce the expert opinion in support of their complaint which is incumbent upon them to prove the respondent's negligence in adopting line of treatment. The learned District fora called the expert opinion from PGI , Chandigarh which supports the case of the complainant and now in appeal the appellant says that the learned Forum has no authority to call any expert report. The appellant has also admitted in his written statement that the patient was investigated regularly for ultrasound at 8th week, 14th week, 23rd week and 37th week. Why did she fail to diagnose the microcephaly if ultrasound was done during these periods of pregnancy. It is really strange and also astonishing the fact that appellant was negligent in his duty and she did not pay proper attention towards the report of the ultrasound or did not see the images of the ultrasound and also did not compare the size of the head with the prescribed norms of medical sciences.
Thus it is clear that there was no need of any MRI and ultrasound test was sufficient to reach a conclusion regarding microcephaly. So from all the circumstances it has been very well established that there is negligence on the part of the appellant/party during the treatment and delivery of the complainant. Circumstances speak itself which clearly shows that if proper attention, care would have been taken, this exception could have been diagnosed (40) at the second or third trimester of pregnancy. The learned Forum has awarded only Rs.1 lakh as compensation to the complainant though the relief claimed was much higher from this amount and it should have been granted but as the appeal filed by the opposite parties so the judgment and order of the learned District Forum needs no interference from this court. The appeal is liable to dismissed with cost.
ORDER The appeal is dismissed with cost. The judgment and order of the learned District Forum dated3.06.2008 passed in the complaint case no.121 of 2003, Smt. Nirmala vs. Dr. Nutan Jain is confirmed.
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.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Jafri, PA II Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER