State Consumer Disputes Redressal Commission
Pravinkumar Patolia vs Dr. Kalpana Kothari on 26 March, 2021
Details DD MM YY
Date of Judgment 26 03 2021
Date of filing 03 07 2011
Duration 23 8 9
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
GUJARAT STATE AT AHMEDABAD.
Complaint No. 35 of 2011
[Virtual Hearing]
Court no. 1
Pravin Kumar Patolia,
S/o Panchabhai Patolia,
A-702, Suryaketu Towers,
Nr. Sambhav Press,
Judges Bunglow Char Rasta,
Bodakdev, Ahmedabad. Complainant.
vs.
1. Dr. Kalpana Kothari
Sterling Hospital,
A Division of Sterling Addlife India Limited,
Registered Office at Sterling Hospital Road,
Memnagar,
Ahmedabad - 380052.
2. Board of Directors,
A. Padmanabh Pundarikray Vora
B. Girishbhai Naranbhai Patel
C. Jyotindra Trivedi
D. Dileep Vishnu Mavalankar
E. Shomik Prasanna Mukharjee
Sterling Hospital,
A Division of Sterling Addlife India Limited,
Registered Office at Sterling Hospital Road,
Memnagar,
Ahmedabad -380052
3. Chairman of the Board of Directors,
Sterling Hospital,
Registered office at Sterling Hospital Road,
Memnagar,
Ahmedabad 380052
4. Bharat Madhusudan Vyaas
Manager,
M. B. Desai CC-11-35 Page 1 of 18
Sterling Hospital,
Registered office at Sterling Hospital Road,
Memnagar,
Ahmedabad - 380052
5. Binitaben Bansilal Patel
Secretary, Sterling Hospital,
Registered office at Sterling Hospital Road,
Memnagar,
Ahmedabad - 380052
6. The New India Assurance Co. Ltd.
4th Floor, Popular House,
Ashram Road,
Ahmedabad-380009.
Complainant- Learned advocate Mr. Paritosh Calla
Opponent No.1- Learned advocate Mr. S. P. Hasurkar
Opponent No. 2 to 5- Learned advocate Mr. Rajesh Kanani
Opponent No. 6- Learned advocate Mr. Rituraj Meena,
Coram : Justice Mr. V. P. Patel, President
Dr. J.G.Mecwan, Member
Order by Dr. J.G.Mecwan, Member Facts of the complaint:
1. The complainant is the son of Sakarben Panchabhai Patolia and his mother Sakraben was admitted in the hospital of opponent no. 2 and was registered as patient no. 1077567 on 4.08.2010. She was examined by the opponent no.1 who advised operation labeled exploratory laprotomy and extended Warthem's hysterectomy. After preoperative evaluation and having been found fit for operation, the operation was conducted by opponent no. l and associates as the surgeons with the aid of the nursing staff provided by the opponents no. 2 and 3 on 5.08.2010.
2. It is the further submission of the complainant that post- operatively she was kept on the regular medical ward although she was earlier intended and decided to monitor her in the ICU.
M. B. Desai CC-11-35 Page 2 of 18Thereafter, on 5 August, 2010 she complained of severe pain in lower abdomen and was billed (SIC) as having "low tolerance for pain". It is the further submission of the complainant that her urine output was also documented to be very low or none, which usually is considered a red flag post-operatively in medical community indicating an urgent need to rule out volume loss i.e. blood loss in post-operative patient.
It is further submitted by the complainant that on Next morning i.e. on 6.08.2010, 12 hours later she was found by the complainant's sister-in-law namely Priya Patolia who was attending the patient Sakarben as a private attendant as unresponsive and therefore Code Blue Team was called; the pulse could not be felt and there was no blood pressure. She was resuscitated, intubated and shifted to ICU, It was then found that her haemoglobin had gone down to 4.8 as against the pre operative 13.7 and therefore subjected to blood transfusion and thereafter taken back to O.T. few hours later and then it was found that there was a VERY large hematoma although it was recorded that there were "no active bleeders"
and the entire loss of blood was attributed to "oozing", In fact in the process of resuscitation and intubation after no pulse was felt and no blood pressure was recorded, she was given intravenous vasopressor (Dopamine) in her right upper limb (forearm) as a bolus of whole ampoule resulting in extravasations of large volume of it in subcutaneous tissue because due care and caution was not taken to see that no extravasations is caused. Furthermore, usually Dopamine is given as a continuous drip not as a bolus of whole ampoule. Extravasations of Dopamine is well documents i.e. medical literature to cause significant tissue damage. Early recognition of extravasations can be successfully treated with antidote" of injection Phentolamine. Unfortunately this was not recognized till it caused tissue destruction and permanent damage to the veins and surrounding tissue causing dangerous impairment of M. B. Desai CC-11-35 Page 3 of 18 venous return causing venous gangrene of right hand, Phentolamine is very effective if given sooner.
It is the submission of the complainant that two days later she developed swelling in the right forearm followed by bluish discoloration of right hand, Right upper limb compartmental syndrome due to venous gangrene was suspected by plastic surgeon and for that she was made to undergo fasciotomy twice, but to no avail. At this point discussion was made about need for above wrist amputation of right hand. It should be noted that she is right handed. Family obviously wanted everything possible done to prevent amputation.
It is the submission of the complainant that his mother was then referred/transferred/taken to Apollo Hospital, Ahmedabad at family's request where the plastic surgeon advised that the amputation of right hand upto and above the wrist was inevitable in the given situation and ultimately decided to do it in piece meal fashion (Mid Palm with thumb salvage) with a view to save as much tissue as possible in the dominant right hand. It is further submitted by the complainant that she underwent multiple painful surgeries on her right hand with a view to save as much limb as possible.
It is the submission of the complainant that the brother of the complainant has also filed complaint before the NABH (National Accreditation Board for Hospitals and Health Care Providers) Quality Council of India, The Medical Council of India and the Gujarat State Medical Council.
It is further submitted that the facts stated herein above clearly establish that the opponent persons have acted with gross negligence and recklessness. It is clearly shown that opponent persons acted in such a manner that they failed to do what they supposed to do and did which no medical professional in his/her prudence could have done and no properly managed M. B. Desai CC-11-35 Page 4 of 18 hospital and its staff could have done. The aforesaid facts are fully established by documentary evidence of contemporaneous nature and the opponent persons are liable to compensate accordingly.
It is the submission of the complainant that it may be noted that for the trauma and the permanent loss suffered by the complainant and his mother at the hands of the opponents, the complainant has been put to the following financial expenses at the Sterling Hospital and Apollo Hospital: 1. Apollo Hospital bill
- Rs.11,36,092; 2. Sterling Hospital bill - Rs. 5.24,103. Further the victim had to go through the prosthetic hand treatment costing to Rs. 20,00,000, It is submitted that the complainant's elder brother, who is a professional doctor and staying in U.S.A, having a practice of about U.S. $ 1240/- per day and had to leave all his business and stay in India to take care of the mess created by the opponents for about more then 22 days and and therefore has suffered a loss of around more then Rs. 12 lacs.
It is further submitted by the complainant that the complainant states that although there can't be any amount which can bring back the victim's hand as it was bit still the fact remains that the victim is 63 years of age and will have to suffer the harassment, depression and trauma due to the loss of her hand every hour of the day for the rest of her old age and therefore has to be sufficiently compensated with at least an amount of Rs. 50,00,000 (Fifty lacs only).
It is also argued by the complainant that the complainant states that as a bona fide consumer, he is entitled to claim the aforesaid amount from the opponents which comes to the total of Rs 98.60.195 (Ninety eight lacs sixty thousand one hundred M. B. Desai CC-11-35 Page 5 of 18 and ninety five only)= 1136092 + 524103 + 20,00,000 + 12,00,000 + 50,00,000 = 98,60,195.
The complainant has concluded and prayed that this Hon'ble Court may be pleased to take cognizance against the opponents for the above said recklessness and they may be suitably made to compensate for the complainant's loss.
3. The State Commission has admitted the complaint, notice was duly served to the opponents and Ld. advocate Mr. S. P. Hasurkar, has filed his appearance for opponent no. 1, ld. advocate Mr. Rajesh Kanani, has filed his appearance for the opponent 2 to 5 and ld. advocate Mr. Rituraj Meena has filed his appearance for the opponent 6.
Defense of the Opponents:
4. Opponent no. 1 has filed written statement wherein, stated that as per the statement made in the complaint itself shows that complainant consumer does not dispute regarding treatment given to the Shakaraben. So far as opponent is concerned and complainant does not dispute about super specialty qualification of the opponent and her professional capacity to treat Smt. Shakaraben for the ailment she complained of.
It is further submitted by the learned advocate that Complainant does not complain that opponent No.1 did not follow any standard procedure while performing surgical operation upon Smt.Shakaraben, The complainant does not dispute that any preoperational standard procedures which were required to be followed while performing operation like that of the operation performed upon Smt. Shakaraben, was not followed.
Ld. advocate for the opponent no. 1 has argued that there are abundant statements and averments available in the complaint itself which are in the form of no better than admission which M. B. Desai CC-11-35 Page 6 of 18 goes to show that opponent No. 1 with her all professional skill and diligence attended and performed operation upon Smt.Shakaraben and it is the fact that at any point of time, opponent No.1 has not attended complainant's mother Shakaraben at the need of the hour.
Ld. advocate for the opponent no. 1 concluded that the case of the complainant would not fall in the category of deficiency in the service or professional negligence to answer the liability in the present proceedings. The opponent, therefore, humbly claims that the Complaint be dismissed against her.
ld. advocate for the opponent no. 1 has submitted following judgments.
(a) I (2005) CPJ 552 of SCDRC, Gujarat: wherein, it is held that merely because notice not replied by doctor, negligence cannot be inferred.
(b) I (2005) CPJ 553 SCDRC, Rajasthan: wherein, it is held that as long as the doctors performed their duty and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.
5. Opponent No. 2 to 5 has filed written statement wherein, it is stated that the decision of keeping the patient in regular ward or in ICU is to be taken by the treating doctor as per the medical needs of the patient and the management of the hospital has no role to płay.
5.1 It is further mentioned that on 06/08/2010, the patient had collapsed, with no pulse and the services of the Code Blue Team (CBT), which is available with the opponent's reputed hospital, was urgently pressed into service to save the patient's life. The Code Blue Team is a team of medical experts, who are trained, skilled and experienced in handling extreme emergencies round M. B. Desai CC-11-35 Page 7 of 18 the clock. The team acts with the commendable speed and efficiency and they attend the emergency within couple of minutes. The sole object of the team is to save the patient's life and they administer the required drugs. injections, medicines in their absolute discretion, as the circumstances may demand. The team acts with the bonafide intention of saving the patient's life and is free to do anything in the best interest of the patient, even without consent of the patient's relative, because obtaining consent during such an emergency is almost improbable and impractical. It is undisputed that the patient (mother of the complainant) had almost lost her life and was in fact revived by the Code Blue Team (CBT) of the opponent hospital. It is denied that there is any negligence in giving intravenous vasopressor (Dopamine), a life saving drug administered in the most emergent situation, which resulted extravasations. The aim of saving the precious life of the patient successfully fulfilled though with a complication that was the result of a life saving drug. The treating doctor has to chose a lesser evil and it was chosen, by giving preference to the patient's life over the side effect of the life saving drug. Therefore, it is denied that there was any negligence either on the part of the treating doctors or the hospital staff and in fact the patient and her relatives, including the present complainant should thank the opponents for the wonderful job done by saving the patient's life, which was already lost. The events that took place after the shifting of the patient on family's request to Apollo Hospital, Ahmedabad are obviously not within the knowledge of the opponent hospital management and is therefore cannot be replied or commented upon. The complaint of Mr. Kishore Patolia with NABH (National Accreditation Board for hospital and health care providers)is concerned, it is informed that after considering the complaint, detailed reply, medical case papers and other evidence on record, NABH has found no substance in the complaint so as to take any action against the opponent hospital, which was in fact instrumental in saving the patient's life against all odds. Claim M. B. Desai CC-11-35 Page 8 of 18 of compensation and damages on various illusionary and concocted grounds, which are neither supported by any reliable evidence nor trustworthy and are therefore strongly denied. It is stated that any of the opponents is neither negligent nor liable to pay any amount what so ever towards the alleged negligence. The false criminal case filed by the complainant was registered as "Inquiry No. 38/2011" and not as "Criminal Case", by directing an inquiry 202 of the Code of Criminal Procedure, 1973 and postponing the issuance of process against the accused named therein. The said fact itself speaks volume about the fact that even the Ld. Magistrate has prima facie not believed the case of the complainant and therefore rightly directed conduct inquiry before summoning the opponent- accused. The present opponents have never received any notice/summons in the above case and on enquiry it is learnt that the said case is dismissed/disposed off on 06/05/2013 in favour of the present opponents, the status of the said case indicating it's disposal/dismissal on 06/05/2013 is attached herewith and marked as Annexure-"A-I". That, it is learnt that the complainant had filed similar complaint before the Medical Council for the very same issue. However, the panel of expert doctors, after having examined the treatment papers and other relevant material, has unanimously found no merit in the complaint and the said proceedings are also terminated. The order of the Medical Council is also placed on record of this Hon'ble commission by opponent no.1 doctor.
5.2 The present case pertains to the very complex and complicated questions of medical science where in expert medical opinion/advice/evidence assumes great importance and to do complete justice to the parties, the complainant should be relegated to the civil court, where detailed evidence be laid, which may not be possible for this Hon'ble Commission while proceeding in a summary manner.
5.3 That, there was no negligence or deficiency on the part of the opponent No. 2 to 5 and the cause of action has never arose.
M. B. Desai CC-11-35 Page 9 of 18That, the opponents beg to refer to and rely upon various landmark judgments delivered by the Hon'ble the Supreme Court Of India and various High Courts Of our country, as well as National Commission, State Commissions on the subject matter.
5.4 ld. advocate for the opponent no. 2 to 5 has submitted following judgments.
(a) 2019 (0)AIJEL-SC 64313 Mukesh Tyagi V/s Fortis escorts Heart Institute, wherein, it is held that complainant must discharge burden of proving medical negligence.
(b) 2017 (0)AIJEL-HC 238669 Nayanaben Hiteshbhai Patel V/s Vaishnav, J. wherein, it is held that simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
(c) IV (2013) CPJ 195 (NC) Moola Ram V/s Singhal Medical Surgical Maternity Centre & Ors and III (2013) CPJ 681 (NC) Chandrakanta S. Kothari vs. Sir Hurkirondas Narrotumdas Hospital and research center & Ors. wherein, it is held that A doctor is not negligent, if he has acted in accordance with a Proper by practice accepted as a responsible body of medical men skilled that particular- art.
(d) 2010 (3) SCC 480 Kusum Sharma V/s Batra Hospital & Medical Research Centre wherein, it is held that as long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence.
(e) 2009 (7) SCC 130 Dr. C.P. Sreekumar, M.S., (Ortho) V/s S. Ramanujam wherein, it is held that onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence.
M. B. Desai CC-11-35 Page 10 of 18(f) 2009 (3) SCC1 Martin F,D'souza V/s Mohd. Ishfaq, wherein, it is held that a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.
6. Opponent no. 6 has filed written statement wherein, it has been mentioned that the present complaint and the reliefs as prayed for by the complaint are misconceived and without any basis either in law or in facts. It is also submitted that the complainant has not come out with complete and accurate facts and circumstances of the case, rather has presented before this Hon'ble State Commission totally distorted and incomplete facts. It is further submitted that the contentions of the Complainant are irrelevant, misconceived, frivolous and bad in law and not maintainable before this Hon'ble State Commission.
6.1 It is further argued that the respondent submits that the complaint of the complainant is not maintainable as per the provision of Consumer Protection Act, Hence, the present complaint is not maintainable and same be dismissed with cost.
6.2 It is further submission of the opponent no. 6 that the respondent herein submits that as per the documents produced/filed by the complainant and respondent no. 2 to 5 before this Hon'ble State Commission, it clearly transpires that no negligence had been committed by the respondent Hospital. It is further submitted that the respondent answering Insurance Company will only be liable when the conduct of the respondent Hospital is Negligent. It is also submitted that as per the documents on records it appears that the incident had happened only because the complainant had chosen to shift the deceased patient from the Sterling hospital to Apollo Hospital, Ahmedabad. It is also submitted that the Mr. Kishore Patolia the brother of the complainant had filed the complaint before the "National Acreditation Board for Hospital and health care providers", That per para 11 of the reply filed by the respondent M. B. Desai CC-11-35 Page 11 of 18 no. 2 to 5 herein, wherein it specially stated that "National Accreditation Board for Hospital and health care had found no substances in the complaint so as to take any action against the respondent hospital, which was in fact instrumental in saving the patient's life against all odds" therefore as per above statement it is clear by National Accreditation Board for Hospital and health care that the incident did not happen due to negligence of the respondent hospital, and therefore the respondent Insurance Company cannot be held liable for the Breach of Terms and Conditions of the Policy: That the answering respondent herein submits that as per the documents produced/filed by the complainant and respondent no. 2 to 5 before this Hon'ble State Commission, it appears that the Criminal Case no. 38 of 2011 has been registered before the Hon'ble Chief Judicial Magistrate and Criminal Investigation is pending and therefore as per the Exclusion clause of the terms and conditions of the policy the respondent Insurance Company is not liable to pay amount as the criminal investigation is pending. For the sake of convenience of this Hon'ble Commission the relevant clause is reproduced below: "7 Exclusion 1 No. Liability shall attach to the company in respect of
(i) any criminal act or any act committed in violation of any law or ordinance.".
6.3 It is the further submission of the opponent No. 6 that as per the documents produced/filed by the complainant and respondent no. 2 to 5 before this Hon'ble State Commission, it appears that Dr. Kalpana Kothari who had performed the said surgery is not an employee of the respondent Sterling Hospital therefore as per Exclusion Clause of the terms and conditions of the policy the respondent Insurance Company cannot be held liable, as when there is Third party liability. The copy of the terms and conditions of the policy along with the copy of policy schedule in annexed herewith and marked as Annexure R1.
M. B. Desai CC-11-35 Page 12 of 186.4 It is concluded by the opponent no. 6 that in light of what is stated herein above, it is submitted that the Insurance Company is not liable to pay any amount to the complainant herein as there is no negligence on the part of the respondent Hospital and also Criminal Investigation is pending before the Ld. Magistrate. The respondent Insurance Company herein prays that this Hon'ble State Commission be pleased to dismiss the complaint of the complainant with cost as the same is devoid of any merits.
7. Evidence produced by complainant:
We have gone through the following documents submitted by the complainant.
Sr. No. Description 1 Document evidencing the payment by the complainant's side of bill raised by the Sterling Hospital and Apollo Hospital.
2 Photographs of the victim's hand after amputation 3 Admission Slip with Sterling Hospital 4 Receipts of Deposits with the Sterling Hospitals 5 Copy of the report of the preliminary check-ups before operation 6 Discharge Summary dated 14.08.2010 and the line of treatment with other documents supplied by Sterling Hospital.
7 Record of Apollo Hospital.
8 Copy of the news item in Times of India dated 7.10.2010 9 Copy of the news item in Ahmedabad Mirror dated 7.10.10.
10 Copies of the communications with the Medical Council of India and NABH.
8. Evidence produced by Opponent no. 2 to 5:
We have gone through the following documents submitted by the opponent no. 2 to 5.
Sr. No. Description 1 Copy of the affidavit in reply 2 complete medical case papers of treatment at sterling hospital including radiology reports, pathology reports, M. B. Desai CC-11-35 Page 13 of 18 OT notes, operative notes, consent forms, consultant notes cross reference nursing charts, vital charts etc.
9. Evidence produced by Opponent 6:
We have gone through the following documents submitted by the opponent no. 6.
1 Terms and conditions of the policy along with policy schedule
10. Merits of the case:
In the present case complainant has made following allegation against the opponent no. 1 and opponent no 2 to 5.
(a) Proper post operative care was not given to the patient and she was kept on the regular medical ward although she was earlier intended and decided to monitor her in the ICU.
(b) On dated 6.8.10 when she became unconscious and no pulse was felt and no blood pressure was recorded then she was given intravenous vasopressor (Dopamine) in her right upper limb (forearm) as a bolus of whole ampoule instead of giving dopamine as a continuous drip.
10.1 We have carefully gone through the medical report submitted in this matter, as per record, complainant has also filed complaint in The Medical Council of India and the Gujarat State Medical Council. Report of council is submitted on record wherein, following conclusion is given.
"Resolved: That taking into consideration the case record, reports etc and detailed explanation given by Dr. Kalpana Kothari, during her personal appearance before the Executive Committee Meeting held on 27.5.2011, the executive Committee is of the opinion that there is no negligency appears on the part of Dr. Kalpana Kothari. Hence, the complaint case be treated as closed and papers be filed."
10.2 Looking to the above facts, it is crystal clear that medical negligency of opponent no. 1 doctor is not proved and as M. B. Desai CC-11-35 Page 14 of 18 medical council of India/Gujarat Medical Council is apex body for the medical professionals and therefore, based on the report of Gujarat Medical Councils it is the considered opinion of this Commission that there is no medical negligency on the part of opponent no. 1 and resulting the allegation of the complainant that post operative care was not taken properly by opponent no. 1 does not sustained.
10.3 As per medical case papers on dated 6.8.10 medical emergency was arised to the patient and at that time code blue team of the hospital has provided emergency medical treatment to the patient. It is an allegation of complainant that she was given intravenous vasopressor (Dopamine) in her right upper limb (forearm) as a bolus of whole ampoule instead of giving dopamine as a continuous drip.
As far as complication of dopamine is concerned there is no any expert medical opinion produced in this matter however, medical literature available on internet in www.rslist.com following complication of dopamine is shown. In this medical literature regarding side effects of the dopamine is mentioned which is reproduced below.
"Dopamine is packaged in 200, 400 and 800 mg/5 ml vials and must be diluted before it is administered by intravenous methods, and almost always in a hospital by trained personnel by Emergency Medical Technicians that are trained in its use. Initial doses of Dopamine are started as an intravenous drip at a rate of 5 micrograms per Kg per minute (5 mcg/Kg/min). Then the drug can be increased at a rate of about 5-10 mcg increments to obtain the correct dose to treat the individual patient's symptoms. If rates above 50 mcg/Kg/min are needed, renal output problems may occur; some renal effects may begin at 20 mcg/Kg/min. Dopamine is not for home use."
Side effects of dopamine include:
* Irregular Heartbeats, M. B. Desai CC-11-35 Page 15 of 18 * Nausea * Vomiting * Anxiety * Headache * Chills * Goosebumps * Shortness of breath.
Serious side effects of Dopamine Include:
* Heart arrhythmias that can be life threatening * kidney Damage, * Gangrene of digits at the higher doses.
10.4 Looking to the medical literature available on internet under the title "Dopamine side effect center" it is crystal clear that dopamine drugs has some serious side effects of gangrene which patient has faced after treatment but as per the indoor case papers of hospital. On dated 6.8.2010 condition of the patient was very critical and hence code blue team who was expertise to give medical emergency treatment has decided to give dopamine to the patient and depending on the critical condition of the patient code blue team has decided that how much quantity of dopamine was required and which procedure was best to save the life of patient and therefore, in the considered opinion of this Commission there is no medical negligency on the part of hospital.
10.5 It is an averment of the ld. advocate for the opponent no. 2 to 5 that to save the life of the patient code blue team has provided the medical emergency treatment which they found proper at that time. Ld. advocate has drawn our attention that all the drugs has its own side effects but depending on the critical condition of patient doctor gives that drugs to the patient to save the life.M. B. Desai CC-11-35 Page 16 of 18
10.6 In the judgment of Hon'ble National Commission in III (2013) CPJ 681 (NC): Bolam vs. Friere Hospital and management committee following observation has been made.
"A doctor is not negligent, if he has acted in accordance with a Proper by practice accepted as a responsible body of medical men skilled that particular- art. Putting it the other way- round, doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig- headedly carry on with some old technique contrary to what is really substantially the whole of informed medical opinion. (ii) When a doctor dealing with a sick man strongly believed that the only hope of cure was submission to a particular therapy, he could not be criticized if, believing the danger treatment to be minimal, did not stress them to the patient. involved in the (iii) In order to recover damages for failure to give warning the plaintiff must show not only that the failure was negligent but also that if he had been warned he would not have consented to the treatment."
10.7 Regarding medical negligency of doctor in Jacob Mathew's case Hon'ble Supreme Court has observed as under:
"At times, the professional sea and he has to choose the lesser evil. 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. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held confronted with making a choice between the devil and the deep negligent merely because he chose to follow one procedure and not another and the result was a failure."
10.8 Considering the above observation of Apex Court in the present case also there is no medical negligency or deficiency in service on the part of opponent no. 2 to 5. The medical condition M. B. Desai CC-11-35 Page 17 of 18 of the patient was very critical and treatment given by the code blue team of the hospital was to save the life of the patient. The medical professionals of code blue team were trained and skilled and experienced in handling extreme emergency and they have adopted a procedure in which higher ailment of risk/complication was involved but it was essential to save the life of the patient therefore, in the opinion of this Commission medical negligency cannot be attributed to the doctors of the hospital as they have performed their duty with reasonable skill and competence.
11. In view of the aforesaid discussion, in the opinion of this Commission when opponent no. 1 doctor and medical team of opponent no. 2 to 5 hospital have performed their duty and exercise an ordinary degree of professionals skill and competence then they cannot be held guilty of medical negligency & therefore following final order is passed.
ORDER I) The complaint No. 35 of 2011 is dismissed.
II) No order as to costs.
III) Copy of the judgment and order be provided to the parties free of costs.
Pronounced in the open Court today on 26th March, 2020 [Dr. J. G. Mecwan] [Mr. V. P. Patel] Member President M. B. Desai CC-11-35 Page 18 of 18