State Consumer Disputes Redressal Commission
Dr. K.P. Singh Hospital & Diagnostic ... vs Surinder Kumar on 21 January, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 476 of 2014
Date of institution: 23.4.2014
Date of Decision:21.1.2016
1. Dr. K.P. Singh Hospital and Diagnostic Centre Pvt. Ltd. situated at
A-1 and A-2, Kitchlu Nagar, Ludhiana through its Administrator/Head
Doctor Dr. K.P. Singh.
2. Dr. K.P. Singh Administrator of the Hospital, Dr. K.P. Singh Hospital
and Diagnostic Centre Pvt. Ltd., situated at A-1 and A-2, Kitchlu
Nagar, Ludhiana.
Appellants/Ops
Versus
Surinder Kumar s/o Sh. Jagan Nath R/o 814, Guru Teg Bahadur Colony,
Malerkotla, District Sangrur at present residing at 28/29 A, Near Sat
Narayan Mandir, Rajpura Town, Rajpura, District Patiala.
Respondent/Complainant
First Appeal against the order dated 21.2.2014
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellants : Sh. Abhinav Gupta, Advocate
For the respondent : Sh. Kuldeep Singh, Advocate
First Appeal No. 476 of 2014 2
2nd Appeal
First Appeal No. 697 of 2014
Date of institution: 10.6.2014
Surinder Kumar s/o Sh. Jagan Nath R/o 814, Guru Teg Bahadur Colony,
Malerkotla, District Sangrur at present residing at 28/29 A, Near Sat
Narayan Mandir, Rajpura Town, Rajpura, District Patiala.
Appellant/Complainant
Versus
1. Dr. K.P. Singh Hospital and Diagnostic Centre Pvt. Ltd., situated at
A-1 and A-2, Kitchlu Nagar, Ludhiana through its Administrator/Head
Doctor Dr. K.P. Singh.
2. Dr. K.P. Singh Administrator of the Hospital Dr. K.P. Singh Hospital
and Diagnostic Centre Pvt. Ltd., situated at A-1 and A-2, Kitchlu
Nagar, Ludhiana.
Respondents/OPs
First Appeal against the order dated 21.2.2014
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Kuldeep Singh, Advocate
For the respondents : Sh. Abhinav Gupta, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
This order will dispose of both the above appeals arising out of the order dated 21.2.2014 passed in Consumer Complaint No. 317 dated 25.11.2011 by the District Consumer Disputes Redressal First Appeal No. 476 of 2014 3 Forum, Ludhiana(in short the "District Forum") vide which the complaint filed by complainant was allowed and Ops were directed to pay Rs. 1,00,000/- as compensation for negligence/deficiency in service with further direction to reimburse the expenses incurred by the complainant and CMC hospital and the expenses incurred during the operation in Op hospital. Ops were further directed to pay Rs. 5,000/- as litigation expenses.
2. Complainant filed the complaint against Ops under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') as husband of late Smt. Kanchan on the averments that deceased Kanchan (hereinafter referred as patient) was having problem in her uterus and was getting treatment from Rajendra Hospital, Patiala. It was further alleged that Rajendra Hospital, Patiala diagnosed that patient was suffering problem in her uterus having bleeding and the Doctor in Rajendra Hospital advised the complainant for removal of the uterus from any specialist Doctor. The complainant and his wife approached Ops alongwith medical reports and Op No. 2 also advised for removal of the uterus and was admitted in Op No. 1 after they deposited Rs. 12,000/- as cost of operation. Complainant requested Op no. 2 that medical reports are 4 months old so fresh medical reports were required. Op No. 2 told the complainant that fresh medical reports of patient were not necessary and operation can be conducted on the basis of reports already with the complainant. Accordingly, uterus of Kanchan was removed. However, after the operation, patient started feeling pain in her body. OP No. 2 told that she was in semi conscious and there was no need to worry First Appeal No. 476 of 2014 4 and as operation was successful and patient would recover soon but she was constantly in pain. She was checked by the Doctor after a gap of 9-10 hours and drop of glucose was inserted in the body but she was not recovering and her condition turned from bad to worse. In the morning of next day, Op No. 2 again checked and stated that everything was fine and under control but the patient was feeling pain continuously. Then Op No. 2 asked him for conducting some medical tests and asked the complainant to deposit the fee for said medical tests. In the meantime, Op No. 2 called his colleague Doctors for discussion and after the discussion, he had advised the complainant to take the patient to any other hospital immediately. Then complainant took her immediately to CMC Hospital. It was disclosed by the concerned Doctors of CMC Hospital that she was not operated properly by the previous Doctors and operation was done with gross negligence as there was bleeding from the suture line as well as injection site and ultimately, she died on 31.3.2011. The complainant visited Op and complained of their negligence but they refused to listen his grievances. He also stated that he spent a sum of more than Rs. 1,50,000/- but Op refused to compensate the complainant. Kanchan was working lady running Beauty Parlour under the name and style of Kanchan Beauty Parlour, situated at 814, Guru Teg Bahadur Colony, Malerkotla, aged 45 years, earning Rs. 15,000/- per month. Apart from that she was running the household affairs and the complainant was also deprived of her love and affection. Above referred act and conduct of Ops amounted to deficiency in service. Hence, the complaint with a direction to Op to pay Rs. 1,50,000/- as First Appeal No. 476 of 2014 5 treatment and medicines, Rs. 1,50,000/- for outdoor medicines, clothing, food, travelling fare and work loss, Rs. 5,00,000/- as compensation and litigation expenses.
3. The complaint was contested by the Ops by taking preliminary objections that case of the patient was referred to Civil Surgeon by the District Forum on which Board consisting of Dr. Neelam Bhatia, Gynecologist, Dr. Suresh Kaushal, Surgeon and Dr. Milli, Gynecologist was constituted, who after going through all the evidence and patient record opined that there was no negligence on the part of Ops by discharging their duties, therefore, the complaint was not maintainable. On merits, it was admitted that the complainant had told that patient was having problem in her uterus or that the doctor of Rajendra Hospital advised the patient to remove her uterus that is why the patient had approached Ops for removal of her uterus. Op No. 2 is holding the degree of FRCS from England and again from Edinburh. He was Ex.-Professor and Head of Department of Surgery of DMC & H, Ludhiana and experience of 50 years in surgery and was running multi speciality hospital under the name and style of K.P. Singh Hospital and Diagnostic Centre, Ludhiana. Since patient was bleeding from her uterus so immediate operation was required. The patient had shown her previous medical record. It was denied that the patient was told that fresh tests were not required in fact fresh medical tests were got done prior to surgery and after the surgery. It was a major operation, which took 3-4 hours during which there was excess bleeding and her blood pressure had gone 80/52 and she had gone in the state of shock and there was acute dilatation of stomach First Appeal No. 476 of 2014 6 and was put to Dopamine drip. In the meantime, large number of persons collected there and insisted Op that they were interested to take the patient to CMC Hospital. Seeing no other alternative, OPs had to discharge the patient from the Hospital and they were also forced to give a reference chit to CMC Hospital, which he did on the asking of the attendants of the patient. During the period she remained under treatment, she was treated properly. There was no negligence or deficiency in their service. It was denied that Op No. 2 had called her colleague Doctors for discussion and after that they advised the complainant to take the patient to some other hospital. It was denied that the Doctors of CMC Hospital had observed that patient was not properly operated or that the operation was done with gross negligence or there was bleeding from the suture line/injection site. It was denied that the Kanchan expired in CMC Hospital on 31.3.2011 due to any negligence or carelessness on the part of Ops. It was denied that the complainant spent a sum of Rs. 1,50,000/- on the operation of the patient. There was no medical negligence or deficiency in service on the part of Op. Complaint was without merit, it be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence summary by Dr. K.P. Singh Hospital Ex. Mark-A, case summary Mark-B, death notification Mark-C, Patient settlement receipt Mark-D, bills of CMC Hospital Mark-E&F, postal receipts Mark-G, legal notice Mark-H, certificate Mark-I, Beauty First Appeal No. 476 of 2014 7 Studio certificate Mark-J, another certificate Mark-K, case history Mark-L, OPD slip Mark-N, treatment details Mark-O, Anaesthesia Notes Mark-P, treatment details Mark-Q&R, certificate Mark-S, photographs Mark-T, U, V, W, envelop copy Mark-X, bills Mark-X1 to X9 and affidavit of Surinder Kumar Ex. CA. On the other hand, Ops had tendered into evidence affidavit of Dr. K.P. Singh Ex. RA, patients admission record Ex. R-1, consent form Ex. R-2, case details Ex. R-3, informed consent Ex. R-4, consultation slip/treatment details Ex. R-5, operation record Ex. R-6, discharge slip Ex. R-7, ultrasound report Ex. R-8, treatment/injection details Ex. R-9, vital signs record Ex. R-10, blood examination report Ex. R-11 to 14.
6. After going through the allegations in the complaint, written version filed by the OP, evidence and documents brought on the record, the complaint was allowed as referred above.
7. Aggrieved with the order passed by the learned District Forum, appellants/OPs have filed Appeal No. 476 of 2014 to set- aside the order passed by the District Forum whereas complainant filed Appeal No. 697 of 2014 for enhancement of the compensation. FIRST APPEAL NO. 476 OF 2014
8. It was contended by the counsel for the appellants that the District Forum has passed the impugned order without correct and proper appreciation of evidence on the record. Before admitting the claim, a report of the Board of Doctors constituted by the Civil Surgeon, Ludhiana was taken, which were submitted to the District Forum vide No. 99 dated 19.3.2012 in which they give the opinion as under:-
First Appeal No. 476 of 2014 8
"As per record, patient Kanchan 45 years female was admitted at Surgeon Hall (Dr. K.P. Singh Hospital & Diagnostic Centre Pvt. Ltd.) on 29.3.2011 with complaint of bleeding per vagina since 10 days, for which patient was examined clinically, radiological and haematologically and was diagnosed as a case of retroverted Bicornuate uterus with average thickness endometrium with right ovary adherent to uterus for which, total abdominal hysterectomy with bilateral salpingo-ophrectomy was done on 29.3.2011. However, post operatively patient remained stable for a while for approx. 3-4 hrs. After that patient started developing hypotension for which patient was put on low dopamine drip. However, patient did not improve haemodynamicaly and was referred to tertiary institute at CMC&H, Ludhiana to department of obstretic and gynae under the supervision of Dr. Kumkum Awasthi on 30.3.2011 patient was again examined haemotolocally and clinically which revealed deranged bleeding profile (Platelet count 39000/Cu mm and TLC 44600/cu mm) and deranged renal function test with serum creatinine 3.6mg % and deranged liver function tests (SGOT-323u/I) and (SGPT-2023u/I) with thrombocytopenia, finally diagnosed as case of bleeding cc agulopathy with DIC. And patient was hepatitis C positive. Hence board of doctors after carefully going through the record made available are of the opinion that total abdominal hysterectomy with bilateral salpingo-ophrectomy was indicated as patient was bleeding profusely for last 10 days supported First Appeal No. 476 of 2014 9 with radiological findings revealing retroverted bicornuate uterus with average thickness endouetrium with adherent right ovary to the uterus but postoperatively patient remained stable hemodynamically only for few hours and then became unstable for which patient was put on ionotropic drugs, and patient had multiple organ involvement and referred in time immediately to a tertiary centre. There patient was immediately examined clinically & haematologically indicating post hysterectomy bleeding coagulopathy (DIC) with septicaemia which is a known complication. Patient was managed at CMC& Hospital with all best medical effort but unfortunately patient could not be saved.) Hence board of doctors are of the opinion there is no negligence on the part of treating doctor Dr. K.P. Singh in discharging his duties as patient was in time immediately referred to tertiary care centre(CMC&H, Ludhiana)."
It was wrongly interpreted by the District Forum. There was no other expert opinion produced by the complainant to prove that it was a case of medical negligence on the part of Ops.
9. As per the reference given by Doctor of Rajendra Hospital, Patiala patient had come to Op and her uterus was to be removed on account of continuous bleeding and this fact has not been denied by the complainant in his complaint. Otherwise, Op No. 2 is holding a degree of MBBS, FRCS from England and FRCS from Edinburgh, Ex.-Professor and Head of Surgery of DMC&H, Ludhiana with an experience of 50 years, therefore, no doubt is about the competency and qualification of Op No. 1 and being an expert in the First Appeal No. 476 of 2014 10 surgery, the patient had approached Op No. 2. Surgery was conducted and uterus was removed. She was under treatment when she was referred to CMC Hospital on 30.3.2011 where she died on 31.3.2011. The cause of death as per the report of CMC was "Cardio- pulmonary arrest due to DIC, Septic Shock, Severe Metabolic acidosis and there was no bleeding per vaginum noted in the operation notes of CMC. Post hysterectomy bleeding coagulopathy (DIC) is a known complication of the surgery. The tests were conducted before conducting the surgery. There was just a marginal difference in the test conducted by Op hospital and in the CMC, which can be due to the different equipments and procedure being followed by the Doctor. The order passed by the District Forum is based upon surmises and conjectures, therefore, the impugned order passed by the District Forum is liable to be set-aside.
10. Whereas on the other hand, counsel for the respondent/complainant Mr. Kuldeep Singh, Advocate has argued that the patient was admitted with OP on 29.3.2011. Surgery was conducted but there was no proper post operative care due to which they shifted the patient to CMC Hospital but before that sufficient time had passed, which had worsened the condition of the patient, which could not be revived by CMC Hospital and ultimately, she died there on account of no proper post operative care for which Ops are liable. The order passed by the District Forum to fix the responsibility of the Ops for medical negligence and deficiency in service is correct on the basis of appreciation of the evidence, rather, the compensation First Appeal No. 476 of 2014 11 allowed by the District Forum is too inadequate for which the complainant has filed the appeal, which will be discussed lateron.
11. We have considered the contentions as raised by the counsel for the parties.
12. As is clear from the pleadings of the parties, the complainant was suffering from bleeding in the uterus and the Doctor in the Rajendra Hospital, Patiala had recommended to remove the uterus. Op No. 2 was Specialist Surgeon, therefore, the complainant approached Op No. 2 on 29.3.2011 and she was admitted in Op No. 1 and surgery was conducted by Op No. 2, but there was no relief of pain to the patient. It has been alleged that during the night, no post operative care was given and when the complainant raised hue and cry, the patient was referred to CMC&H, Ludhiana on 30.3.2011 where she died on 31.3.2011.
13. Now we have to determine whether it is a case of medical negligence or deficiency in service on the part of Op?
14. The first point raised in the complaint is that the complainant had tests of the patient four months old and that Op No. 2 stated that those tests will be sufficient for conducting the operation and no new tests were required. However, this version was contradicted by Ops in their written reply. The inpatient bed head ticket of Rajendra Hospital, Patiala is mark-L. Mark-M are the tests dated 17.9.2010. Patient admission record of Op hospital was produced on the record by Ops is Ex. R-1. Ex. R-2 is the consent given by the complainant to perform the operation. Ex. R-11 is blood examination report in which Haemoglobin has been mentioned as First Appeal No. 476 of 2014 12 9.30 g/dl. Ex. R-12 is another report of tests showing Sr Glucose (Random) 122 mg/dl, Sr Urea 24 mg/dl and Sr Creatinine 1.02 mg/dl. These are dated 29.3.2011, therefore, it could not be said that no test was conducted by Ops before going for the surgery. After the surgery, it has been alleged that there was no relief from the pain and proper medicines were not given to the patient after operation. Whereas Ops in their written reply have stated that operation continued for 3-4 hours, therefore, there was excess bleeding and blood pressure was gone 80/52 and the patient had gone in a state of shock and there was acute dilatation of stomach, therefore, she was put to Dopamine drip. Ex. R-9 further reveals the various injections given by the Ops on 29.3.2011 i.e.:-
"Inj. Gonta, Inj. Zintac (Zantac), Inj. Ciplox, Inj. Metuo, Inj. Morem, Inj. Voveran, Cupluter care BD, Inj. Dopamine etc."
and vital signs record was also maintained as Ex. R-10.
15. Then on 30.3.2011, blood examination report (Ex. R-14) with regard to Sr Glucose (Random), Sr Urea 24 mg/dl and Sr Creatinine was also taken. The patient was in the process of treatment when the attendants stated that they want to shift their patient to CMC whereas the claim of the complainant is that the Doctor after consulting with his colleagues had referred the patient to CMC Hospital. Whatever may be the reason, vide document Ex. R-3 the patient was referred to CMC Hospital in the morning of 30.3.2011, thereafter, the treatment was given by CMC Hospital but the patient could not survive and died there on 31.3.2011. As per the report of the CMC, cause of death was "Cardio-pulmonary arrest due to DIC, First Appeal No. 476 of 2014 13 Septic Shock, Severe Metabolic acidosis" and short summary with relevant details was referred as under:-
"45 years old lady P2+4L2 with previous 2 LSCS status first postoperative day, Total Abdominal Hysterectomy with Bilateral Saplingo oopherectomy at Private Nursing Home, Ludhiana. Patient received a shock on ionotropic support. On admission, patient was restless and not maintaining saturation(saturation approximately .83%) pallor ++, Pulse-155bpm, BP-70mmHg systolic on dopamine drip. Bleeding was present from suture line and injection site. Nasogastric tube showing dark brown liquid and urine output was 5-10 ml in urobag. Abdomen was distended and bowl sounds were absent. No bleeding per vaginum noted. Patient was intubated and shifted to I.C.U. All relevant investigations were sent. Transfusion of Fresh Frozen Plasma/ Platelet Rich Concen(illegible) Packed cells /cryo Precipitate given Ionotropic support up. Broad spectrum antibiotics were started. Dialysis was done in view of oliguria with severe metabolic acidosis. Gastroenterology consult was taken (HCV positive, high liver enzymes), however, her condition deteriorated and Patient had cardiac arrest at 11.55am on 31.3.11. CPR given but could not be revived and declared dead by 12.30 pm on 31.3.2011."
16. The counsel for Op again referred to the report of Board of Doctors in which no negligence on the part of Op has been found by the Board of Doctors and no other expert opinion or other evidence has been brought on the record by the complainant. So far First Appeal No. 476 of 2014 14 as surgery is concerned, hysterectomy was necessary and it was done and no finger has been raised by the complainant that hysterectomy was not required. His grouse is that no proper test was done before conducting the surgery but as referred above requisite tests were done on 29.3.2011 before conducting the surgery, therefore, these allegations of the complainant are without basis. Then there are allegations that no proper medicines were given to the patient in post operative procedure but as referred above in Ex. R-9 number of medicines were given to the patient and the patient was also put to Dopamine drip, which was necessary to maintain the blood pressure. In the complaint, in the course of arguments, counsel for the complainant has not alleged that the medicines given by Ops were not the appropriate medicines or what type of other medicines were required to be given. No doctor has been examined to state so. So far as hysterectomy is concerned, even the Doctors of the CMC in their case summary has found that there was no bleeding per vagina. The District Forum in the impugned order has observed that there was bleeding from the suture line as well as from the injection site and that the Ops delayed the shifting of the patient to the tertiary hospital, in case they were unable to control it. In case cause of death as per the report of the CMC was due to DIC, septic shock, severe metabolic acidosis. It has been stated by the counsel for the Op these are known-complications of the procedure and the doctor cannot be held for medical negligence. DIC has been referred as under:-
"DIC is a condition in which the human body's normal blood coagulation mechanism gets affected, leading to formation of First Appeal No. 476 of 2014 15 number of small blood clots throughout the body's smaller blood vessels which then reduces or chokes off the flow of blood in the blood vessels, causing damage to body's vital organs.
• DIC can be caused by a variety of pathophysiological factors, like some diseases, surgery, traumatic injury like burns, certain serious gynaecological and childbirth related complications, snake bite, etc. (One of the medical textbooks, viz., Wintrobe's CLINICAL HEMATOLOGY, Ninth Edition, Volume 2, Part V, Table 69.4 produced by the Ops also cites intravascular haemolysis (transfusion of incompatible blood) as a cause of DIC).
• DIC can be acute or chronic. Acute DIC, which develops quickly over hours or days, involves excessive blood clotting in the small blood vessels and develops rapidly into serious bleeding. Chronic DIC, on the other hand, which is caused most commonly by diseases (cancer, in particular), develops over weeks/months and though also involving excessive clotting, it does not usually lead to bleeding."
• DIC can cause internal bleeding and external bleeding. Internal bleeding can occur in organs like the kidneys, intestines, and brain. This bleeding can be life threatening. • Signs and symptoms of internal bleeding include:
• Blood in urine from bleeding in kidneys or bladder; • Blood in stools from bleeding in the intestines or stomach; and First Appeal No. 476 of 2014 16 • Headaches, double vision, seizures, and other symptoms from bleeding in the brain.
• In DIC, external bleeding can occur underneath or from the skin, such as at the site of cuts or an intravenous (IV) needle. External bleeding also can occur from the mucosa (the tissue that lines some organs and body cavities, such as the nose and mouth).
• External bleeding may cause purpura or petechiae. Purpura are purple, brown and red bruises. This bruising may happen easily and often. Petechiae are small red or purple dots on the skin. Other signs of external bleeding include prolonged bleeding even from minor cuts; bleeding or oozing from the gums or nose, especially nosebleeds or bleeding from brushing teeth; and heavy or extended menstrual bleeding in women.
• Treatment for DIC involves treating the clotting and bleeding problems and the underlying cause of the condition. • People who have acute DIC may need blood transfusions, medicines, and other life-saving measures. People who have chronic DIC may need medicines to help prevent blood clots from forming in their small blood vessels."
17. Further the Board of Doctors in their opinion have stated that post hysterectomy bleeding coagulopathy (DIC) with septicaemia is a known complication of the procedure. In case it is so then how the Doctor can be medically negligent? In case the version given by the complainant is admitted that OP was not able to control the First Appeal No. 476 of 2014 17 patient then either at their own or request of the complainant referred it to the tertiary hospital then it cannot be said to be a case of medical negligence. A reference can be given to IV (2015) CPJ 507 (NC) "N. Manjunathan v. Anantha Ashram Hospital Mathigiri". In that case, hospital had referred the patient to higher centre, which was correct decision to control PPH due to coagulation failure. Then it cannot be said that there was negligence on the part of the Doctor. With regard to the tests, no doubt that the District Forum has noted some difference in the test reports of the OP Hospital and CMC as referred in their order. Firstly, it was due to lapse of time and sufficient blood had oozed due to surgery and then difference can be due to equipment and the procedure. In this regard, a reference can be made to the judgment of the State Commission, Haryana reported in IV (2015) CPJ (7B) "Vikram v. Jagdamba Medical Centre". It was a case of platelet counts. It was observed that during the treatment platelet go up and down. Little variation does not mean that OP acted negligently or with malafide intention. Another judgment on this point is relevant reported in IV (2015) CPJ 460 "Sukhraj Kaur v. Dr. Balkar Singh". In that hysterectomy operation was conducted. There was frequent bleeding and evidence of the Doctor that bleeding can be due to local infection. It was observed that in case the severe bleeding would have been due to cut of uterine artery, she could not survive more than a month. It was observed that it is not a case of medical negligence. The basic principle of medical negligence has been defined in the celebrated judgment "Bolam v Friern Hospital Management Committee", (1957) 2 ALL ELR 118, which was First Appeal No. 476 of 2014 18 accepted by the Hon'ble Supreme Court as laying down correct tests in cases of medical negligence, in which it was observed that negligence in law means failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do. It was further held that Doctor is not guilty of negligence if he acted in accordance with practice accepted as proper by responsible body of medical man skill in a particular art. Further in "Kusum Sharma & Others versus Batra Hospital & Medical Research Centre & Others", 2010 (3) SCC 480 to determine the medical negligence, following parameters were fixed by the Hon'ble Supreme Court:-
"I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. First Appeal No. 476 of 2014 19 IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
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 First Appeal No. 476 of 2014 20 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 particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
18. In case we go through these judgments, it has been held that a medical professional would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. Further 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. Negligence cannot be attributed to a doctor so long as he performed his duties with reasonable skill and competence.
19. There is no evidence on behalf of the complainant that the conduct of the Op fell below the standard of reasonably competent Doctor. The complainant has further failed to prove what omission Doctor has done or what other thing should have been done First Appeal No. 476 of 2014 21 by the Doctor to save the patient. No Doctor can give 100% guarantee. Complication do arise in the procedure and in case complication is a known-complication the duty of the Doctor is to put his best efforts. Here in this case, the patient was under treatment when it was got shifted to CMC and on the second day, the patient died in CMC Hospital, therefore, for more than 24 hours even Doctors of the CMC tried their best to save the patient but they were unable. Therefore, in case the Doctors have not been able to save the patient, it does not mean that they were negligent in their procedure. Otherwise during the course of arguments, the counsel for the complainant has not been able to pin-point the specific omission on the part of the Op. Op cannot be held liable merely because the patient had died. Certainly, the District Forum has not properly appreciated the evidence on the record and merely because there was bleeding from suture line or injection site or some delay in referring the patient to another hospital or some difference in the blood test are not sufficient parameters to hold the Doctor medically negligent in conducting the procedure. In these circumstances, we are of the opinion that the order passed by the District Forum is not legal and valid order passed upon proper appreciation of the evidence on the record.
20. In view of the above, we accept the appeal. Impugned order is set-aside. Consequently, the complaint filed by the complainant is hereby dismissed.
21. The appellants had deposited an amount of Rs. 25,000/- and Rs. 25,000/- with this Commission in the appeal. These amounts First Appeal No. 476 of 2014 22 with interest accrued thereon, if any, be remitted by the registry to appellant No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court. FIRST APPEAL NO. 697 OF 2014
22. This appeal has been filed for enhancement of compensation. However, in view of our findings in Appeal No. 476 of 2014 when the complaint filed by the complainant has been dismissed for want of proof of medical negligence and deficiency in service, the question of any enhancement of the compensation does not arise. Resultantly, we dismiss Appeal No. 697 of 2014.
23. The arguments in these appeals were heard on 8.1.2016 and the orders were reserved. Now the orders be communicated to the parties as per rules.
24. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
25. Copy of this order be placed on F.A. No. 697 of 2014.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member January 21, 2016. (Surinder Pal Kaur) as Member