State Consumer Disputes Redressal Commission
Arun Mishra vs Dr. Shreekant Giri & Anr. on 2 January, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2016/17
Instituted on : 23.06.2016
Arun Mishra S/o Late Shri Deenbandhu Mishra,
Profession - Advocate,
R/o : Village- Seepat, Police Station : Seepat,
Tehsil - Masturi, District Bilaspur (C.G.) ... Complainant.
Vs.
1. Dr. Shreekant Giri.
2. Dr. Omprakash Makhija,
Shishu Bhawan, Masanganj, Police Station : Civil Lines,
Tehsil and District Bilaspur (C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Rakesh Kashyap, for the complainant.
Shri D. Dutta and Shri G.V.K. Rao, for the opposite parties.
ORDER
Dated : 02/01/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
(a) To direct the OPs to pay a sum of Rs.50,00,000/- (Rupees Fifty Lakhs) to the complainant towards compensation, compensation for physical and mental agony and loss // 2 // suffered by the complainant in the business & agriculture activities.
(b) To direct the OPs to pay cost of litigation to the complainant.
(c) To grant any other relief, which this Commission deems fit.
2. Briefly stated the facts of the complaint of the complainant are that on 06.11.2015, the daughter of the complainant namely Ku. Toshika Mishra, aged 13 years fell ill, therefore, she was taken for treatment to the OPs Hospital. The OPs informed that the condition of her daughter is very serious and there is possibility of her death and they operated her on 06.11.2015. The daughter of the complainant was admitted by the OPs till 10.11.2015 in their Nursing Home, but the health of the daughter of the complainant did not improve and on the contrary her condition, was deteriorated, then the complainant provided the medicines to his daughter, which were prescribed by the OPs, but no improvement was made in her health. The condition of the daughter of the complainant was deteriorated, therefore on 25.11.2015, the complainant brought his daughter to Uday Hospital, Bilaspur where she was immediately admitted. Dr. Anurag Kumar and Dr. Rakesh Sahu informed the complainant that due to wrong operation conducted, the skin of the intestine of Ku. Toshika Mishra, was perforated, for which second operation was required & the same was conducted on 27.11.2015 and the third operation of the remaining // 3 // intestine was conducted on 18.01.2016. At present the health of the daughter of the complainant is improving. The OPs have conducted the operation of intestine of the daughter of the complainant by misleading him. Due to wrong operation conducted by the OPs, the future of the daughter of the complainant became darked. Due to the act of the OPs, the complainant and his daughter suffered mental agony. Hence, the complainant filed instant complaint and prayed for granting reliefs, as mentioned in relief clause of the complaint.
3. The OPs have filed their written statement and averred that the complainant brought his daughter namely Ku. Toshika Mishra in the hospital of O.P. No.1 on 06.11.2015. According to the complainant his daughter Ku. Toshika Mishra was suffering from fever and vomiting constantly (15 - 16 times in last 12 hours), having complaint of dehydration and acute pain in the stomach. Ku. Toshika Mishra was examined by the O.P. No.2, who is an expert Pediatric Surgeon. Songraphy of Ku. Toshika Mishra was conducted. On the basis of Songraphy Report, it came to know that there is inflammation in the appendix of Ku. Toshika Mishra. It was informed to the complainant that operation of his daughter, is necessary. After undergoing operation, the daughter of the complainant was taking normal meals and vomiting was also stopped. She was passing urine and stool conveniently and elegantly. Looking to good condition of Ku. Toshika Mishra, she was discharged from the hospital. Thereafter she was // 4 // again brought to the OPs on 14.11.2015 for follow check-up and she complained mild pain in her stomach. Sonography test was again conducted and on perusal of the Sonography report, it is found that in intestine Inflammed bowel loops post operative infective was present. On the basis of above infection, injection was prescribed to Ku. Toshika Mishra. On the request of the complainant, he was directed by the OPs that injection to Ku. Toshika Mishra should be administered by the local Dr. and the OPs also instructed the complainant to again bring her daughter before them for check up after 5 days. From 14.11.2015 to 25.11.2015 Ku. Toshika Mishra was remained present in her home. On 25.11.2015 the complainant informed the O.P. No.1through telephone that his daughter is again complaining stomach ache. Then the OPs told the complainant to bring Ku. Toshika Mishra in the hospital but the complainant did not bring her daughter to OPs and and subsequently OPs came to know that operation of Ku. Toshika Mishra was conducted in Uday Hospital, Bilaspur. From the perusal of the documents filed by the complainant, it is clear that after conducing operation of appendix of the daughter of the complainant in the O.P. No.1 hospital, there is perforation peritonitis cause post of adhesive intestinal obstruction in Uday Hospital, Bilaspur (C.G.) it means there was adhesion obstruction, due to Omentum wrapped around loop of terminal ileum, which was separated by Uday Hospital, Bilaspur (C.G.) by conducting operation. The above operation has no relation // 5 // with the operation of Appendix / Appendicitis conducted by O.P. No.2. The joining and to adhere of the above intestine is a known procedure which occurred due to cells. The adhesion of the intestine after operation is possible due to healing of wound. There was no adverse effect to the health of the daughter of the complainant due to treatment and operation conducted by the OPs. The OPs have properly and as per requirement, treated daughter of the complainant. The complainant did not suffer mental agony and financial loss to the tune of Rs.10,00,000/- due to wrong operation conducted by the OPs as well as due to second and third operation and treatment. The wife, son and daughter of the complainant did not suffer loss to the tune of Rs.10,00,000/- towards physical, mental agony and financial loss. The operation of the appendix of the daughter of the complainant was immediately required to be conducted to save her life and accordingly the OPs conduced her operation due to which her life could be saved. The OPs have not committed any medical negligence while treating the daughter of the complainant. The complaint is liable to be dismissed with cost.
4. The complainant has filed documents. Documents are Discharge Summary issued by Shri Institute of Child Health, Discharge Ticket dated 25.01.2016, issued by Uday Childrens Hospital, Discharge Ticket dated 08.12.2015 issued by Uday Childrens Hospital, // 6 // registered notice dated 10.02.2016 sent by the complainant to the OPs with postal receipts, photograph of Ku. Toshika Mishra.
5. The OPs have also filed documents. Documents are In Patient's Record maintained by Shri Institute of Child Health, consent letter, Sonography report dated 06.11.2015 and medical literature.
6. Shri Rakesh Kashyap, learned counsel appearing for the complainant has argued that Ku. Toshika Mishra, who at the time of taking treatment was 13 years old girl and she brought for treatment to OPs hospital. The OPs informed to the complainant that his daughter's condition is very serious and operation is required to be conducted immediately. Ku. Toshika Mishra was admitted in the OPs hospital and operation was conducted on 06.11.2015 by the O.P. No.2. She was admitted in the hospital till 10.11.2015 and she was discharged from OPs hospital on 10.11.2015, but the health of Ku. Toshika Mishra was not improved and her condition was deteriorated. The medicines, which were prescribed by the OPs were regularly given to Ku. Toshika Mishra, but no improvement was made in her condition, therefore, Ku. Toshika Mishra was got admitted in Uday Hospital, Bilaspur on 25.11.2015, where Dr. Anurag Kumar and Dr. Rakesh Sahu informed the complainant that due to wrong operation conducted by the O.P. No.2, the skin of intestine of Ku. Toshika Mishra was perforated. On 27.11.2015 second operation of Ku. Toshika Mishra was conducted in Uday Hospital, Bilaspur and thereafter again third // 7 // operation of Ku. Toshika Mishra was conducted in Uday Hospital, Bilaspur on 18.01.2016. The OPs deliberately with malafide intention informed the complainant regarding operation of Ku. Toshika Mishra and the O.P. No.2 unnecessarily conducted her operation negligently and due to negligence of the O.P. No.2, the intestine of Ku. Toshika Mishra was perforated, which comes in the category of medical negligence on the parts of the OPs. Due to wrong operation conducted by the O.P. No.2, the daughter of the complainant is suffering from pain and mental agony and she lost her physical efficiency / capacity due to wrong operation conducted by the O.P. No.2, therefore, the complainant is entitled for getting compensation from the OPs, as prayed by him in the compliant.
7. Shri D. Dutta, learned counsel appearing for the OPs has argued that the O.P. No.1 is an experienced Pediatrician and O.P. No.2 is an expert Pediatric Surgeon. On 06.11.2015, the complainant brought her daughter namely Ku. Toshika Mishra in O.P. No.1 Hospital and the complainant himself narrated that his daughter Ku. Toshika Mishra is suffering from fever and vomiting constantly (near about 15 - 16 times in last 12 hours) and having complaint of dehydration and acute pain in her stomach. The O.P. No.2 examined Ku. Toshika Mishra and obtained Sonography Report. After perusal of Sonography Report, he came to know that there is inflammation in appendix of Ku. Toshika Mishra, therefore, the O.P. No.2 informed to the complainant that due // 8 // to appendicitis, operation is required to be conducted immediately to save life of Ku. Toshika Mishra. Every consequences of the operation was explained by the O.P. No.2 to the complainant and after understanding the complications, the complainant gave his written consent to the O.P. No.2 for conducing operation of Ku. Toshika Mishra, then operation was conducted by the O.P. No.2, who is expert surgeon of the children. The O.P. No.2 did not commit any medical negligence. The skin of intestine of Ku. Toshika Mishra was not perforated due to operation conducted by the O.P.No.2. Ku. Toshika Mishra was again brought to the OPs on 14.11.2015 for follow check - up and she complained mild pain in her stomach, then sonogrpahy test was again conducted. On perusal of the Sonography report, it is found that in the intestine inflamed bowel loops post operative infective was present. According to medical literature, intestinal obstruction can occur after laparotomy appendicitis. Inflammation in the appendix of Ku. Toshika Mishra, was not caused due to operation conducted by the O.P. No.2. The complainant did not file any expert report to prove that skin of intestine of the daughter of the complainant was cut due to operation conducted by the O.P. No.2 negligently. Even Uday Hospital, Bilaspur did not mention in its report that intestine was perforated due to first operation conducted by the O.P. No.2. The complainant himself pleaded that second and third operation of his daughter Ku. Toshika Mishra was conducted in // 9 // Uday Hospital, Bilaspur by Dr. Anurag Kumar and Dr. Rakesh Sahu. In the Discharge Ticket dated 08.12.2015, against the column "Diagnosis", it is mentioned "Perforation peritonitics cause post op. adhesive intestinal obst." It shows that second and third operations were conducted in the Uday Hospital. It cannot be ruled out that due to second and third operation, perforation peritonitis was caused to the daughter of the complainant. The complainant has not been able to prove that any medical negligence has been committed by the OPs. The OPs are expert in their field and they done their job intelligently and sincerely and they did not commit any medical negligence. The complaint is liable to be dismissed.
8. We have heard learned counsel appearing for both the parties and have also perused the documents filed by them in the complaint case.
9. In the book titling "Medical Negligence" written by Shri S.P. Tyagi (Edition 2004) Reprint 2008, it has been mentioned at Page No.64, 65, 66, 67 and 68 regarding Medical Negligence, Classification of medical negligence or mistakes. It runs thus :-
"What is Medical negligence The term medical negligence is nowhere defined in any Code or Act. No legislature, has so far, made any attempt to define it. Even the medico- legal jurists have not come forward to provide a specific meaning to this express.
'Medical negligence' is always an outcome of doctor patient inter se conduct and relationship, which lacks uniformity. The issue of medical // 10 // negligence is a complicated one as medical professionals deal with human body. They do not deal with the machine. Human body is not a mere composition of bones and flesh. It is susceptieable to emotions also. Response of medicinal treatment varies from patient to patient. This phenomenon is also applicable to recovery aspect. Further recovery aspect is not solely dependent upon the appropriateness of treatment provided by the doctor. Response or recovery of a patient also depends on his individual anatomy and physiology. Possibility cannot be ruled out that a drug may be effective in case of one patient, it may not be effective in second and may cause reaction in third. Medico Legal experience also establishes that there exist inherent risk in every treatment, medicinal or surgical. Further possibility of unforeseen mishap may not be ruled out. Even the medicinal literature provides for failure rates particularly in surgery.
The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be more than one course of treatment which may be advisable for treating a patient. Medical opinion may differ with regard to the course of action adopted by a doctor treating a patient.
Further the concept of medical negligence may be studied with reference to the extent of approach of a medical professional towards three under mentioned concepts, which generally work as guidelines to determine the factum of medical negligence or otherwise in a particular case.
(1) Duty of care in accepting the patient for treatment.
(2) Duty of care in providing appropriate treatment.
(3) Breach of duty or commission of negligence in any of them and damage cause by such breach.
In other words, medical negligence is result of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties. Broadly speaking medical negligence means negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in vogue, which are being practiced by an ordinary and reasonably competent man, practicing on the same branch of medicine or surgery.
Classification of medical negligence or mistakes. Negligence in medical care may broadly be classified into four categories :-
// 11 // (1) Medical negligence at the level of doctors / paramedical staff / hospital authorities. Liability for negligence may be fixed at individual level and / or jointly or vicariously where hospitals nursing homes are involved.
(2) Negligence at the level of patient himself or his attendants also known as contributory negligence.
(3) Negligence at the level of manufacturers of drugs, equipment etc. and dispensers.
(4) Composite negligence i.e. at more than one of the above 3 levels.
Negligence of first category may further be sub-classified into two categories viz.
(i) Individual liability of a medical professional.
(ii) Vicarious liability of an individual doctor or hospital for the Medical negligence may also be classified as under :
1. Medical mistakes.
2. Clinical negligence.
3. Surgical mistakes
4. Misplaced injection."
10. In the instant case, the OPs have filed copy of Sonography Report dated 06.11.2015 of Miss Toshika Mishra. Dr. Mrs. Riya L. Makhija, who conducted Sonography gave her opinion that :-
"Opinion : Sonographic Findings are suggestive of acute appendicitis.
Minimal free fluid in abdomen.
11. The OPs have filed copy of Sonography Report dated 14.11.2015 of Miss Toshik Mishra. Dr. Mrs. Riya L. Makhija, who conducted Sonography gave her opinion that :-
// 12 // "Opinion : Sonographic Findings are suggestive of inflamed bowel Loops ? Post operative ? infective.
12. On the basis of Sonography Report of Dr. Mrs. Riya L. Makhija, Shri Institute of Child Health Shri Shishu Bhawan gave their opinion that Ku. Toshika Mishra is suffering from appendectomy.
13. The complainant has filed Discharge Ticket dated 08.12.2015 issued by Uday Hospital, Bilaspur in which it is mentioned thus :-
"Name : Toshika / Shri Arun Mishra Age / Sex 13 years Address : Seepat, Bilaspur.
Date of admission : 25.11.2015 Wt. 35 Kg. Date of discharge : 8.12.2015 Wt.........
Diagnosis : Perforation peritonitis cause post - op. adhesive intestinal obst.
Condition on admission Condition during Hosp. stay and treatment given.
Admitted with abd. distenous to pain EXP lap done GA on 27.11.15 found following open appendicectomy done to have adhesion obstn. due to elsewhere after about 20 days ago A x omentum wrapped around loop of R should free saw diaphragm. terminal ileum which had become saugreuous and perforated....."
14. In Discharge Ticket of Uday Hospital, it is mentioned Perforation peritonitis cause post - op. adhesive intestinal obst., but Uday Hospital did not mention in its report above Peforation Peritonitis was occurred due to surgery conducted by the O.P. No.2.
// 13 // The complainant has filed Discharge Tickets of Uday Hospital, Bilaspur dated 08.12.2015 and 25.01.2016. According to discharge ticket dated 08.12.2015, Ku. Toshika Mishra was admitted in Uday Hospital on 25.11.2015 and she was discharged on 08.12.2015. According to discharge ticket dated 25.01.2016, Ku. Toshika Mishra was again admitted in Uday Hospital, Bilaspur on 17.01.2016 and was discharged on 25.01.2016. It appears that operation of Ku. Toshika Mishra was conducted in Uday Hospital on 27.11.2015 and thereafter she was again admitted in Uay Hospital on 17.01.2016 and was discharged on 25.1.2016. Even after conducting second operation, same problem was continued to Ku. Toshika Mishra.
15. The OPs have filed literature titling Sabiston Textbook of Srgery - The Biological Basis of Modern Surgical Practice, in which it is mentioned thus :-
"Bowl Obstruction :
Intestinal obstruction can occur after laparotomy appendicitis. The true long-term incidence is unknown but it is likely similar to the risk of the patients undergoing laparotomy for other reasons. The incidence in large series was approximately 1% and 1.3% in another with mot patients presenting in the first 6 months of operation."
According to above medical literature, Intestinal obstruction can occur after laparotomy appendicitis.
// 14 //
16. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128 (V 56 C 27), Hon'ble Supreme Court has observed thus :-
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."
17. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs // 15 // would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good.
Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
// 16 // Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
// 17 // VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation.
Such malicious proceedings deserve to be discarded against the medical practitioners.
// 18 // 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 Dr. Sanjay Gadekar Suprathet Hospital and Surgical Research Institute Ltd. Vs. Sangamitra @ Sandhya Khobragade, 2016 (3) CPR 270 (NC), Hon'ble National Commission has observed thus :-
"11 In this context we place reliance upon few judgments of Hon'ble Supreme Court. In Jacob Mathews Case (2005) 6 SCC 1, it was observed by Hon'ble Supreme Court as :
"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, the Hon'ble Supreme Court held that :
"in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to // 19 // the other one available, he would not be liable, if the course of action chosen by him was acceptable to the medical profession."
The Hon'ble Supreme Court in the case Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others (2010) 3 SCC 480; the bench comprising Hon'ble Justices Dalveer Bhandari and H.S. Bedi while dismissing the complaint held that :
"Consumer Protection Act, (CPA) should not be a "halter round the neck" of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death."
... ... ... xxxxx......
It further observed as, "It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish."
25. In Hucks v. Cole & Anr (1968) 118 New LJ 469, Lord Denning speaking for the Court, observed as under :
"a medical practitioner was not to be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner, in his field."
// 20 //
19. In Smt. Tilat Chaudhary & Anr. Vs. All India Institute of Medical Sciences & Anr. 2012 (4) CPR 565 (NC); Hon'ble National Commission has observed that "Laparoscopic Cholecystectomy for removal of stones in Gall Bladder. Injury to Bile Duct during operation. CBD injury was caused and detected during Laparoscopic dissection procedure and said procedure was converted into open cholecystectomy to rectify complication. CBD injury is a well-known complication of laparoscopic cholecystectomy procedure and frequency of such complications has increased with advent of laparoscopic cholecystectomy. Incidence of CBD injury is a well-known risk when a patient undergoes a laparoscopic cholecystectomy procedure. Same cannot be correlated as act of negligence or carelessness on part of operating surgeon. Merely because laparoscopic cholecystectomy had to be converted to open cholecystectomy procedure, it cannot be said that laparoscopic cholecystectomy procedure adopted by surgeon was counter indicative. Once it is shown that due medical protocol was followed, no case of medical negligence is made out against opposite parties. Complainants have failed to establish their case about medical negligence and/or deficiency in service against opposite parties."
20. The skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the complainant to prove that doctor was negligent in the line of treatment that resulted in the life of the patient.
// 21 //
21. The OPs have filed copy of consent letter dated 06.11.2015 of the complainant. In the said consent letter the name of complainant and the name of the doctor is mentioned. In the consent letter it is mentioned that risk in anaesthesia and risk of other procedures were explained to the complainant and the complainant gave his consent to the OPs for conducting operation of his daughter. In the consent letter it is specifically mentioned that "eSaus iwjs gks'k gokl esa ;g lgefr i= i<+k gSA blds fy, izfrfyfi eq>s izkIr djkbZ xbZ gSA blesa fyf[kr tks Hkh gS mls eSaus vPNh rjg ls le> cw> fy;k gS vkSj blds mijkUr gh bl ij eSaus gLrk{kj ¼nLr[kr½ djds viuh lgefr iznku dh gSA"
22. In A.K. Vishwakarma (Dr.) Vs. Kiran Sinha & Anr. and Kiran Sinha Vs. A.K. Vishwakarma (Dr.), II (2016) CPJ 204 (NC); Hon'ble National Commission has observed thus :-
"22. What constitutes medical negligence is well settled through a catena of decisions of the Hon'ble Supreme Court, including in Jacob Mathew v. State of Punjab & Anr., III (2005) CPJ 9 (SC) = VI (2005) SLT 1 = 122 (2005) DLT 83 (SC) = III (2005) CCR 9 (SC) = (2005) 6 SCC 1, a three-Judge Bench decision, Indian Medical Association v. V.P. Shantha and Others., III (1995) CPJ 1 (SC) = 1995 (SLT Soft) 561 = (1995) 6 SCC 651. Noted from these judgments, the broad principles to determine what constitutes medical negligence, inter alia, are : (i) Whether the doctor in question possessed the medical skills expected to an ordinary skilled practitioner in the field at that point of time; and (ii) Whether the doctor adopted the practice (of clinical observation diagnosis - including diagnostic tests // 22 // and treatment) in the case that is accepted as proper by a responsible body of professional practitioners in the field. In this connection, in Jacob Mathew (supra), the three-Judge Bench, elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury's Laws of English (4th Edn., Vol. 30, para 35) as follows :-
"35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way..."
25. The State Commission seems to have presumed that the stone was in the kidney and that a stone of its size could not have passed out with urine in the natural process. The Medical Literature and the expert opinion clearly evidenced that the stone was in the CBD and it could have passed out naturally and that the patient had a history of cholecystectomy in the year 1997 and with all the tough adhesions, it may not be possible to detect any shadow or lesion in the pancreas and therefore, viewed from any angle, we do not see any negligence on behalf of the Radiologist in analysing the USG. The Petitioner / Complainant also could not establish any negligence on behalf of the Treating Surgeon. We observe from the record that he was impleaded in the second round of litigation but there was no amendment in the pleadings and no specific allegation as to what ought to have been done by the Treating Surgeon which was not done as per the standards of normal medical parlance. Therefore, we conclude that the patient failed to prove any negligence against either of the Doctors."
// 23 //
23. The O.P. No.1 Dr. Shreekant Giri is an expert Pediatrician and O.P. No.2 Dr. Om Prakash Makhija is an expert Pediatric Surgeon. The complainant has not filed any material to prove that both the OPs are not experts in their field. The complainant has filed Discharge Summary issued by Shri Institute of Child Health, in which the name of Dr. Shreekant Giri and Dr. Om Prakash Makhija, are mentioned. It appears that O.P. No.1 Dr. Shreekant Giri is M.D. - Fellowship - Critical Care (IAP) and O.P. No.2 Dr. Om Prakash Makhija, is possessing M.S., M.C.H. degree. It shows that both the OPs are possessing requisite qualification for treating the children and the O.P. No.2 is an expert Pediatric Surgeon. In Discharge Summary of Uday Hospital, Bilaspur, the qualification of Dr. Rakesh Sahu is mentioned as M.D. (Pedi.), F.C.G.P. The complainant did not file any document regarding qualification of Dr. Anurag Kumar. From perusal of the documents, it appears that the O.P. No.2, who conducted first operation of Ku. Toshika Mishra, is possessing requisite qualification to perform surgery of appendix.
24. In the instant case, Dr. Anurag Kumar and Dr. Rakesh Sahu of Uday Hospital, Bilaspur are material witnesses for the complainant to prove that due to wrong operation conducted by the O.P. No.2, intestine of Ku. Toshika Mishra was perforated, but the complainant did not file affidavits of Dr. Anurag Kumar and Dr. Rakesh Sahu. The onus of proving alleged negligence in treatment of patient lies with // 24 // person, who alleged medical negligence. In the instant case, the complainant did not file any document to prove that intestine of Ku. Toshika Misra was perforated or cut due to first surgery conducted by the O.P. No.2. Doctors are only responsible for medical negligence if they failed to exercise reasonable care of patient expected from them. Mere unsuccessful treatment does not imply medical negligence.
25. The complainant did not prove that O.P. No.2 has done surgery of Ku. Toshika Mishra, against the medical literature. The complainant has not filed any application for obtaining expert report from Medical Board, therefore, merely on the basis of pleadings of the complainant, it cannot be held that the OPs have committed medical negligence, while treating the daughter of the complainant, therefore, the complainant, is not entitled to get any compensation from the OPs.
26. Therefore, the complaint filed by the complainant against OPs, is liable to be dismissed, hence the same is dismissed. Parties shall bear their own costs.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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