Delhi District Court
Smt. Sangeeta vs Union Of India on 30 November, 2022
In the Court of Ms. Gurmohina Kaur: Additional District
Judge (South District) Saket Courts Complex, New Delhi
DLST010004152011
CS No.: 7408/16
In the matter of :-
Smt. Sangeeta
W/o Sh. Ashok Kumar Thakur
R/o 93, Village Khanpur
New Delhi .......Plaintiff
Versus
1. Union of India
Through Ministry of Health
Through its Secretary
New Delhi
2. The Safdarjung Hospital
New Delhi-110029
Through
Medical Superintendent
Safdarjung Hospital
New Delhi-110029
3. Dr. Sudha Salhan
H.O.D. (Gynaecology)
Safdarjung Hospital
New Delhi-110029
4. Dr. Shashi Prateek
Unit-IIA, Incharge
Safdarjung Hospital
New Delhi-110029
5. Dr. Sunil Jain
Urologist
CS/7408/2016 Page 1 of 25
Sh. Rajiv Tyagi
Shop no. E-7/ 653, Ratia Marg
Sangam Vihar
New Delhi
6. Dr. M.D Goswami
Gynaecologist
7. Dr. Chanderbhan
Surgeon
8. Dr. Palvi
Sr. Gynecologist
9. Dr. Bhatia
(Anesthetist)
(Team of Doctors At Serial no. 4 to 10 who operated)
10. Dr. Renu Arora
11. Dr. Sushma Rani
12. Dr. Alka
All Senior Residents.
(Team of Doctors at Sr. No. 11 to 13, who operated)
.....Defendants
Date of institution : 27.11.2014
Arguments heard on : 27.07.2022
Date of decision : 30.11.2022
JUDGMENT
1. The present suit was filed on 27.09.2011. At the outset, it is significant to mention that the Plaintiff did not file the Court-fees, however, undertook to deposit the same at the time of disposal of this suit as it was observed after inquiry under Order 33 CPC by Ld. Predecessor of this Court that the CS/7408/2016 Page 2 of 25 Plaintiff was not an indigent person within the meaning of Order 33 Rule 1 CPC.
2. Facts as epitomized in the plaint are that the Plaintiff got pregnant in the year 2009 and during pregnancy, the Plaintiff took all possible precautions that were needed and ANC was prepared by the Defendants. It was stated that the Plaintiff was called by the Defendants from time to time for upkeep and treatment. It is averred that on the expected date of delivery, the Plaintiff was admitted in the hospital, however, on the account of negligence of the Defendant, who did not attend the Plaintiff and the Plaintiff was left at the mercy of nurses, the Plaintiff developed complications. It is further averred that in order to cover up the illegal acts, the Defendants operated upon the Plaintiff on 03.06.2009/ 01.07.2009 but the child died within couple of hours and was handed over to the Plaintiff and her husband. It is further stated in the plaint that due to negligence on the part of the Defendants, the Plaintiff developed more complications in urinary tract/ kidney and the vessel of the kidney of the Plaintiff was touched during operation which got severely damaged/ disconnected from the main kidney function as a result of which she lost control over urination and urine started leaking through the damaged vessel. It is stated that the aforesaid fact was not disclosed to the Plaintiff and the Plaintiff was discharged from the hospital on 09.07.2009 without proper medical care and treatment post her surgery. It is averred that even her discharge from the hospital was not proper as the Plaintiff was not in a fit and fine condition and the Defendants were in a hurry to discharge her from the hospital since they had committed a mistake at the time of surgery and the Plaintiff was CS/7408/2016 Page 3 of 25 discharged without disclosing about the damage to her kidney vessel. The plaint further states that the Plaintiff sought further medical advice from the doctors at Ahuja Clinic, Saket about her medical issues and was advised ultrasound. The ultrasound was conducted by Dr. Anju Ahuja which read that during the surgery of the Plaintiff, the vessel of her kidney was damaged due to medical negligence on the part of the Defendants. It is averred that because of the medical negligence of the Defendants, the neonatal child of the Plaintiff died and further resulted in damage of urinary tract/ vessel which caused continuous leakage and discharge of urine from the body of the Plaintiff. It is stated that the act of the Defendants not only caused mental pain and agony to the Plaintiff but the Plaintiff was also unable to perform her day to day activities.
2.1. The plaint further avers that the Plaintiff again contacted the Defendants and informed them about the negligence on the part of the operating team and the Plaintiff was immediately admitted to the hospital and again operated on 29.09.2009 in order to fix the problem faced by the Plaintiff. It is stated that though the Plaintiff was operated upon by the Defendants, the operated portion still gives her pain and the negligence of the Defendants deprived the Plaintiff to live a normal life which she used to live prior to the surgery on 29.09.2009. It is stated that the Plaintiff was still under treatment and has been advised to take medicines. It is averred that the Plaintiff sent a legal notice to Defendants claiming compensation, however, no reply received by the Plaintiff and the non-submission of reply pointed out to the guilt of the Defendants. It is prayed that a sum of Rs.20 Lacs alongwith CS/7408/2016 Page 4 of 25 interest @18% per annum from the date of filing of suit till the date of actual payment be granted in favour of the Plaintiff.
3. Though upon service of summons, the counsel for Defendants appeared on behalf of all the Defendants and filed written statement, however, the same was filed only by Dr. K.T. Bhowmik, Additional Medical Superintendent with Defendant no. 1. In the written statement, it has been stated that it was a settled law that Doctors could not be held guilty of negligence in case they acted in accordance with the practice accepted as proper by a responsible body of Medical Men, skilled in that particular art. It is stated that the Plaintiff was referred to Dr. Sunil Kumar, Prof., Consultant Surgeon in Surgical OPD on 28.08.2009 for the first time by Dr. M.D. Goswami, Sr. Gynaecologist in the hospital and at that time the Plaintiff was admitted in Gynae ward no. 7 under Unit-2A. It is averred that there was a history of Plaintiff undergoing cesarean section on 01.07.2009 following which the Plaintiff was leaking urine from her vagina. It is stated that Dr. Sunil Kumar examined the Plaintiff and reviewed various blood-urine reports and found the Plaintiff to be suffering from ureterovaginal fistula left side as a complication of cesarean section which the Plaintiff had undergone on 01.07.2009. It is stated that Dr. Sunil Kumar advised surgery procedure and arranged two units of blood for the operation and the Plaintiff was successfully operated on 20.09.2009 along with team of gynaecology Doctors and General Surgeon and the Plaintiff underwent uneventful post operative period in Ward no. 7 of the gynae ward and was discharged on 08.10.2009 with advice for follow-up with the gynecologist and general surgical OPD for removal of the DJ CS/7408/2016 Page 5 of 25 stent, which was kept in situ at the time of the surgery. It is stated that the DJ stent was subsequently removed after three months and IVP X-Rays were done which showed normal functioning of the bilateral kidneys and the surgery was a success and the Plaintiff became asymptomatic. It is averred that the Plaintiff has produced no evidence to prima facie establish that the Doctors who performed the surgery did not take reasonable degree of care and were in any way negligent on their part, consequently of which the surgery failed. It is stated that the Plaintiff reported to GRR of the hospital with history of leaking P/V on 01.07.2009 at 02:27 a.m., late in labour and was immediately admitted by doctors in GRR and labour room. It was denied that the Doctors did not attend the Plaintiff and it is further stated that the Plaintiff underwent LSCS for arrest of labour in second stage of labour and fetal distress and because of the fetal distress, the baby was compromised and died later. It is stated that during surgery, there was an extension of uterine incision as the head of the child had descended deep into the pelvis and to control the bleeding from the extension, few stitches were taken which accidentally involved the ureter on the left side. It is stated in the written statement that such kind of complication was very rare and is reported in the literature in about 0.09% cases. It is stated that Plaintiff's post operative period was uneventful and the Plaintiff was discharged after stitch removal 8 days after surgery and the Plaintiff remained afebrile throughout her state in the hospital. It is stated that there was no suspicion of ureteric injury till her discharge and the ultrasound done at Ahuja Clinic which was done after 18 days of discharge, which revealed it sided Hydroureteronephroses and was developed gradually only after her discharge from the CS/7408/2016 Page 6 of 25 hospital. It was denied that the negligence of the doctors had resulted in the death of neonatal or had caused damaged to the urinary tract/ vessel causing continuous leakage of urine from the body of the Plaintiff. It is submitted that the problem was detected by the hospital/ Defendant when the Plaintiff was re- admitted on 29.07.2009. It is stated that there was no negligence on the part of the Defendants and there was no liability on the Defendants to compensate the Plaintiff.
4. On completion of pleadings, following issues were framed on 29.08.2014:-
1. Whether the plaintiff is entitled to damages of Rs.20,00,000/-? OPP
2. Whether the plaintiff is entitled to interest as claimed? OPP
3. Relief.
5. To prove its case, the Plaintiff stepped in witness box as PW1 and tendered her evidence by way of affidavit Ex.PW1/A and relied upon certain documents viz. Copy of ultrasound dated 28.07.2009 Ex. P.1, copy of legal notice dated 29.09.2010 Ex. P.2, postal receipts Ex. P.3 (colly), UPC receipts Ex.P.4 (colly), AD cards Ex.P.5 (colly). During her cross- examination by Ld. Counsel for the Defendant on 07.09.2016, she stated that she did not remember when she visited Safdarjung Hospital in the year 2009. She denied the suggestion that she had visited Safdarjung hospital for the first time in the last stage of her pregnancy. She denied that there was no negligence on the part of doctors in her treatment. She denied that on the date of her discharge from the hospital, she had no CS/7408/2016 Page 7 of 25 complications. She denied that she was discharged after taking proper care. She denied that ultrasound report dated 28.07.2009 Ex. P.1 was not certified by any doctor. She admitted that defendant hospital had given reply to her legal notice, however, voluntarily added that the same was given after filing of this suit. She denied that she was not having any problem at the time of second discharge from the hospital. She denied that she did not have any medical problem presently.
5.1. PW2 Dr. Hariom Ahuja from Ahuja Clinic stated that he was a summoned witness and on 27.07.2009, patient namely Ms. Sangeeta came at his clinic and he gave number of advice to her for investigation for cause of fever and adviced for ultrasound alongwith tests. He submitted that during the investigation, ultrasound showed dilatation of left ureter and hydronephoresis of kidney and identified his report Ex. PW2/1 (OSR) bearing his signatures at point A. He stated that he had examined ultrasound report dated 28.07.2009 which suggested there is some obstruction in ureter leading to dilatation of left ureter and calyces of left kidney. He stated that the ultrasound report Ex.P1 bear the signatures of Dr. R. K. Duggal at point A which he identified being well-versed with his signatures. He stated that thereafter, he referred Ms. Sangeeta to Safdarjung Hospital. During his cross-examination, he admitted that Ms. Sangeeta came to him as routine patient and voluntraily added that she was running fever for three weeks as stated by her. He stated that ultrasound report showed significant obstruction in left kidney. He stated that her kidney function test were not normal.
CS/7408/2016 Page 8 of 255.2. PW3 ASI Ravinder Kumar, from PS Hauz Khas stated that record i.e. complaint of Smt. Sangeeta made on 11.08.2009 has already been destroyed by office order no. 4911- 5001/HAR/SD dated 27.04.2017 Ex. PW3/A. 5.3. PW4 Sh. Hayat Singh, Medical Record Technician, Safdarjung Hospital stated that record i.e. complaint of Smt. Sangeeta bearing no. ACK no. 8223 dated 23.09.2009 and complaint of Shri Ashok Kumar received under Diary no. 10477 dated 22.12.2009 has already been destroyed by office order F.No. Z-28015/6/2014-MH-I dated 10.02.2014, Ex. PW4/A. 5.4. PW5 Dr. Deepti, Director from Safdarjung Hospital stated that requisite record has already been weeded out in year 2009 and filed his report Ex. PW5/A.
6. Upon completion of PE, during the stage of Defence Evidence Defendants examined Dr. Renu Arora as DW1, who tendered her evidence by way of affidavit Ex. DW1/A. During her cross-examination on 08.03.2019, she submitted that she did not know when patient/ Plaintiff came to the hospital for the first time and admitted that patients made antenatal card when they attend OPD of hospital. During her cross-examination on 20.08.2019, she admitted that Plaintiff firstly came to hospital on 25.02.2009 as per record, for routine check-up and thereafter, she came in the hospital for antenatal check-up on 25.03.2009. She admitted that there was no urinary problem with the Plaintiff and that Plaintiff was admitted in Safdarjung hospital with labour pain on 01.07.2009 at 03:00 p.m. and further admitted that when the Plaintiff was admitted on 01.07.2009, she was not CS/7408/2016 Page 9 of 25 present there. She stated that she was deposing on the basis of hospital record. She stated that Plaintiff was discharged on 07.07.2009 as per the discharge summary. She deposed that one Cesarean operation of the Plaintiff was conducted by doctor on duty to save baby as natural course of labour was not possible. She stated that at that time, operation was conducted by Dr. Rajni, Dr. Anshul, Dr. Neeta and Dr. Pooja under supervision of Dr. Goswami (Consultant). She stated that surgery of Plaintiff was performed in second stage of labour and there was extension of the utrine incision leading to blood loss 1.5 liters, to save Plaintiff's life and stop the bleeding suture were taken at angle which was very close to ureter to save Plaintiff's life and inadvertently it might have included in the stitch. She admitted that at the time of operation, she was not on duty but she could tell the same from the record. She admitted that Plaintiff had no problem during pregnancy. She stated that she could not say if she had received any notice from the Plaintiff and that she was not directly involved in the treatment of Plaintiff but was involved as team and that she knew about the treatment given to the Plaintiff. She stated during her cross-examination on 26.11.2019 that she had not brought the original documents which were filed alongwith the written statement and added that the complaint of Smt. Sangeeta made on 11.08.2009 had already been destroyed by office order no. 4911-5001/ HAR/SD dated 27.04.2017. She admitted that during the prenatal period, Plaintiff had no problem of leaking urine. She admitted that baby was born alive and died in 10 minutes due to asphyxia. She stated that no MLC had been prepared and added that baby was handed over to the paediatrician and paediatrician did not get postmortem examination. She stated that she was not involved in CS/7408/2016 Page 10 of 25 surgery of Plaintiff on 01.07.2009 and as per record, Plaintiff was discharged on 07.07.2009. She admitted that after surgery leakage of urine problem of Plaintiff was started. She further stated that Plaintiff was re-admitted in hospital on 27.09.2009 and was operated on 29.09.2009 by Surgeon Dr. Sunil Jain. She stated that Plaintiff was operated in September, 2009 because of her complaint of leaking of urine and added that based on medical record, the cesarean was done to save the baby because baby had shown the signs of distress, fetal heart had decreased. She stated that Plaintiff was also in advance labour, late in the second stage of delivery did not show any signs of progress so, cesarean was done for both mother and baby. She stated that Plaintiff has filed a complaint and internal enquiry was done in the Department as well as at the hospital level. She stated that complaints of the Plaintiff were duly addressed and she was re- operated for a rare complication of cesarean section which can happen to save the life of the Plaintiff. She admitted that on 01.07.2009 at about 12:30 a.m. the Plaintiff was admitted in labour room with labour pains and that she was not operated upon immediately and was kept under observation. She stated that during the process of labour, it was observed that fetal heart was decreasing and mother labour was not progressing, so it was decided to deliver her by cesarean. She stated that patient was discharged against advise and she further stated that there are occasions when the resident doctor do not complete the formalities due to workload and discharge summary slip would be taken as a valid document. She admitted that Plaintiff was discharged and denied the suggestion that patient left against medical advice and not discharged. She further admitted that during cesarean operation to control the bleeding, ureter might CS/7408/2016 Page 11 of 25 have got involved and added that this is known and rare complication of such surgeries where C-section is done during advance labour and that she had submitted literature on the same. She stated that a Department enquiry was held on receipt of complaint Mark DX2. She stated that as per the record, baby was born alive at 08:00 a.m. and was declared dead at 08:10 AM. She stated that on 25.02.2009, the patient attended OPD and was not at risk and again said that the Plaintiff, during labour became high risk and went into obstructive labour and fetal distress. She denied the suggestion that baby had died due to negligence of doctors.
Thereafter DE was closed.
7. I have heard arguments extensively advanced by Ld. Counsel for the Parties and gone through the material available on record.
8. My issue wise findings are as under:-
Issue No. 1 and no. 2 are decided together. Whether the plaintiff is entitled to damages of Rs.20,00,000/-? OPP Whether the plaintiff is entitled to interest as claimed? OPP.
8.1 The onus to prove these issue was on the Plaintiff.
In the present case, the Plaintiff has averred that she was pregnant in the year 2008 had got prepared the ANC card from Defendant no. 2 Safdarjung Hospital for her treatment and delivery. It is the claim of the Plaintiff that on the expected date of delivery, the Plaintiff was admitted in the hospital, however, on account of negligent act of the Defendant in not attending the CS/7408/2016 Page 12 of 25 Plaintiff, she developed complications and the Defendants operated upon the Plaintiff on 30.06.2009/01.07.2009 but the newborn child died and was handed over to the Plaintiff and her husband. Plaintiff is also aggrieved that the Plaintiff was not attended by the doctors at the Defendant no. 2 hospital and therefore, developed complications regarding urinary tract/ kidney and the vessel of kidney of Plaintiff was touched during operation as a result of which the same got disconnected/ severed. It is averred that an ultrasound conducted at Ahuja Clinic, Devli Road, Khanpur revealed that during her surgery, the vessel of kidney got damaged on account of medical negligence on part of operating doctors/ Defendants and the Plaintiff had to suffer mental pain and agony and torture was not in a position to perform her day to day activities. It is stated that the Plaintiff again contracted and informed the Defendants who immediately admitted her in the Defendant no. 2 hospital and again operated her on 29.09.2009 in order to fix the said problem faced by the Plaintiff.
8.2 The Defendants, on the other hand have argued that the Plaintiff was referred in surgical OPD on 28.08.2009 for the first time by Sr. Gynecologist in the hospital and had a history of Plaintiff undergoing C-Section on 01.07.2001 following the Plaintiff was leaking urine from her vagina. It is their case that the Plaintiff was found to be suffering from ureterovaginal fistula left side as a complication of cesarean section and was adduced surgery. It is the case of Defendant that the Plaintiff underwent a successful surgery on 29.09.2009 and the Plaintiff became asymptomatic and thereafter their was normal functioning of both the kidneys.
CS/7408/2016 Page 13 of 258.3 In order to prove this issue, the Plaintiff examined herself and Dr. Hariom Ahuja as PW-2. It is significant to mention that the Plaintiff did not place any record, any of the reports regarding the admission, discharge or treatment with Defendant No. 2 hospital during her deposition either with respect to her pregnancy and delivery or with respect to the surgery conducted for the second time at Defendant no. 2 hospital on 29.09.2009. Further, the perusal and reading of the deposition of PW-2, Dr. Hariom Ahuja reflects that during the investigation of Plaintiff conducted at their clinic, it was diagnosed vide report Ex.PW-2/1 that there was dilation of left ureter and calcyes of left kidney. The judicial record further reflects that it was only during the cross-examination of DW-1 was the diary no. 8223 dated 23.09.2009 of Defendant No. 2, Ex.DW-1/P1, the anti-natal record of Plaintiff, Ex.DW-1/1(colly) (running into 10 pages), the discharge summary slip, Mark DX1, complaint dated 23.09.2009, Mark DX2, ultrasound report, dated 28.07.2009 Mark DX3, admission and discharge record of Plaintiff Mark DX4 i.e. the medical record of the Plaintiff were taken on record. None of these records were exhibited or proved at the stage of Plaintiff Evidence. Further, DW-1 during her cross-examination stated that one cesarean operation of the Plaintiff was conducted by doctor to save the baby as natural course of labour was not possible and the surgery of the Plaintiff was performed in the second stage of labour and there was an extension of the uterine incision leading to blood loss of 1.5 liters and in order to save the plaintiff's life and stop bleeding, suture were taken an angle which was very close to ureter so as to save the Plaintiff's life and inadvertently it might have included in the stitch. She denied the suggestion that any vessel CS/7408/2016 Page 14 of 25 was cut at the time of performing of the cesarean operation of the Plaintiff. She admitted that during the pre natal period, the Plaintiff had no problem of urine leaking. She further stated that the Plaintiff was admitted at 01.07.2009 at 02.27 AM and further admitted that the baby was born alive and died in 10 minutes due to asphyxia at 08.10 AM. She admitted that there was no MLC prepared in this respect. She further admitted that after the surgery the leakage of urine problem of the Plaintiff's started. She further stated that the based on the medical record the cesarean was done to save the baby because the baby has shown the sign of distress, fetal heart had decreased. She further stated that the plaintiff was in the advance stage of labour, late in the second stage of delivery and not showing any sign of progress, so cesarean was done for both mother and baby. She stated that after the complaint an internal enquiry was done in the department as well as at the hospital level and the complaints of the Plaintiff was duly addressed and she was re-operated for a rare complication of cesarean section which was done to save the life of the Plaintiff. She denied the suggestion that the patient left against the medical advice and was not discharged. She further stated that as per the hospital record, baby was born alive at 08.00 AM and was declared dead at 08.10 AM. She stated that when the patient was attended at hospital on 25.02.2009, she was not a risk and further stated that the patient during labour became high risk and went into obstructive labour and fetal distress.
8.4 At this stage, perusal of the medical documents of the Plaintiff i.e. Mark DX1 which is the authorization for performing of cesarean surgery given by the Plaintiff's husband CS/7408/2016 Page 15 of 25 thereby acknowledging the risk if any involved in the cesarean surgery of the Plaintiff and thereafter at point A of the same document pertaining to release of patient, it was stated that the patient i.e. Plaintiff had got herself discharged from the Defendant no. 2 hospital without the advice of the attending physician. Mark DX1 is the copy of the medical discharge slip dated 07.07.2009 of the Plaintiff, which reflects that there was impending obstructed labour and a cesarean was performed on 01.07.2009. Furthermore, the meaningful reading of OT notes in Mark DX1 prepared after the cesarean operation was conducted on Plaintiff mention that the baby's head was deeply impacted and the baby was delivered by Patwerdhan manner. It further stated in the aforesaid documents that left side uterine arteries were ligated. The anti natal record of the Plaintiff Ex.DW-1/1 to 10 (colly) reflect that the expected due date of the patient of 29.06.2009. The record further reflects that the patient/plaintiff had developed post partom uretero vaginal urinary fistula and was advised to undergo surgery, which was conducted by the doctors of Defendant No. 2 hospital and the surgery was done successfully and the issues faced by the Plaintiff were addressed by the doctors of Defendant No. 2. The Plaintiff has during the entire trial not lead any evidence to show that the Defendants did not show the required standard of care and skill which was to be used by an ordinary competent medical practitioner exercising an ordinary degree of a professional skill. In fact, the record the reflects that the Plaintiff got herself admitted in the Defendant no. 2 hospital for her delivery for the first time only on 01.07.2009, whereas her expected due date was that of 29.06.2009 i.e. two days after her due date. It has also been proved on record that the Plaintiff became at high risk during her CS/7408/2016 Page 16 of 25 labour as she went into the second stage of labour which was obstructive and therefore the cesarean operation was conducted by the Doctors of Defendant no. 2 hospital to save her life and that of her child. The record further reflects that the the heartbeat of the fetus was dropping during labour from 90/per minute to 60/per minute and medical procedure had been followed to stabilize the child but the child died within 10 minutes of being born. The record further reflects failed vacuum extraction being done to deliver the baby the doctor on 01.07.2009.
8.5 Admittedly, the Plaintiff developed leakage of urine post her C-Section, however, the notes of the surgeon during her surgery reflect that the head of the baby was stuck in the uterine and it was required to deliver the baby through cesarean operation. Further, nothing has come on record to suggest that the Patient/Plaintiff has claimed any leakage of urine at the time of her discharge at 07.07.2009 and in fact the testimony of PW-2 reflect the Plaintiff only underwent further investigation on 27.07.2009 for fever, wherein it was diagnosed that there was an obstruction in the left ureter and calyces of left kidney. The Plaintiff was again thereafter admitted in Defendant no. 2 hospital on 23.09.2009 and underwent surgery on 29.09.2009 wherein these issues were addressed.
8.6 It is significant to mention that one of the Basic principle relating to medical negligence is known as the BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital Management Committee (1957) 1 WLR 582 as follows:
CS/7408/2016 Page 17 of 25"Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill.......It is well established law that it is sufficient if he exercise the ordinary skill of an ordinary competent man exercising that particular art".
Bolam's test has been approved by the Supreme court in Jacob Mathew's case.
8.7 It has been held by Hon'ble Apex Court in Jacob Mathew vs State of Punjab & anr, (2205) SCC (Crl.) 1369 that:-
"(1) Negligence is the breach of a duty caused 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. 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. When it comes to the failure of taking CS/7408/2016 Page 18 of 25 precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence."
8.8. In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is stated as follows :
"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care.CS/7408/2016 Page 19 of 25
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 operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
8.9 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. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
8.10 It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. As Lord Clyde stated in Hunter vs. Hanley 1955 SLT 213 :
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men.... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has CS/7408/2016 Page 20 of 25 been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...."
8.11. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
8.12 The higher the acuteness in an emergency and the higher the complication, the more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and has to choose the lesser evil. The doctor 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 but a doctor cannot be penalized if he adopts the former procedure, even if it results in a failure. 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 in a position to give consent before adopting a given procedure.
8.13. In this context, it has also been observed by the Supreme Court in Jacob Mathew's case (supra):
"A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make CS/7408/2016 Page 21 of 25 out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason - whether attributable to himself or not, neither can a surgeon successfully wield his life- saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society."
8.14 The basic principle relating to the law of medical negligence is the Bolam Rule. The test in fixing negligence is the standard of the ordinary skilled doctor exercising and professing to have that special skill, but a doctor need not possess the highest expert skill. In the present case, the record reflects that the doctor attending the Plaintiff followed the practice acceptable to the medical profession and took steps in order to save the life of the Plaintiff and her child on 01.07.2009. In order to establish negligence on the part of the Defendants, the Plaintiff was required to demonstrate the Defendants did something or failed to do something within the given facts and circumstances, no medical professional in their ordinary senses or prudence would do or failed to do. In order to have a medical professional negligence, the act of doctors of should be of such nature that the injury would be most likely eminent. During the entire trial the Plaintiff has failed to show that there was a breach on the part of the Defendants in performing their duty, which CS/7408/2016 Page 22 of 25 was due to the negligence of the Defendants. It has also come on record that the complication reported by the Plaintiff of leakage of urine is one of the lesser known complication of a cesarean operation conducted on the Plaintiff on 01.07.2009 to save the life of the Plaintiff and her baby. Further, the Defendant no. 2 hospital itself conducted the corrective surgery on 29.09.2009 on the Plaintiff, after which the Plaintiff did not report any other medical issues. Accordingly, on the basis of the documents and evidence placed on record, there is nothing on record to suggest or to prima facie establish that the doctors who performed the cesarean surgery on the Plaintiff on 01.07.2009 were negligent in any manner on their part and did not take proper care and attention. What is required for medical practitioner is a reasonable degree of skill and knowledge and a reasonable degree of care.
8.15 Considering the facts of the case, this court appropriately guided by the settled proposition of law in this regard cannot hold that the Defendants were guilty of medical negligence as the meaningful reading of the documents pertaining to the hospital record of Defendant no. 2 as well as other medical history reflect that the Plaintiff became a high risk patient during her delivery and was required to undergo a cesarean operation to save her life and that of the unborn child. The documents further reflect that the neonatal died as he was in distress during labour. Further, during trial, it has come on record and proved by the Defendants that the complication leading to leakage of urine was one of the lesser known complications of a cesarean surgery and that since the head of baby was struck in the ureter and the emergency cesarean was performed for fetal CS/7408/2016 Page 23 of 25 distress after taking the consent of the Plaintiff and her husband, the same could be taken to be akin of negligence to hold the hospital and doctors liable for the same. The record further suggests that the Plaintiff sought discharge after her first surgery against advise. It also requires mentioning that when the Plaintiff visited the Defendant no. 2 hospital again, her issue of uretero vaginal fistula was identified and corrective surgery was performed by the specialist of Defendant no. 2 hospital which was successful. There is nothing on record to show any negligence on the part of the Defendants or the Defendants did not show reasonable care while attending the Plaintiff on 01.07.2009 which resulted in post operative complication of urine leakage which was addressed vide another surgery conducted by Defendant no. 2 on 29.09.2009. The duty of care and reasonable standard of practice has been sufficiently been shown from the documents placed on record by the Defendants. In fact, in the considered opinion of this Court, no negligence could be proved by the Plaintiff qua the Defendants and no cognitive evidence has been placed on record.
8.16 Accordingly, in view of the aforesaid settled position of law and on the basis of facts adumbrated above in the considered opinion of this court, the Plaintiff has failed to prove any negligence on the part of the Defendants so as to entitle her to any damages from the Defendant. Both these issues are decided against the Plaintiff.
RELIEF
9. From the discussions, as adumbrated herein-above, the Plaintiff has failed to prove its case. The present suit is CS/7408/2016 Page 24 of 25 hereby dismissed. Plaintiff is directed to file court fees as per her undertaking dated 29.08.2014 within one month.
No order as to cost. Decree-sheet be prepared accordingly after filing of court fees.
File be consigned to Record Room after due compliance.
Announced in the Open Court on 30.11.2022 (Gurmohina Kaur) Additional District Judge South District: Saket Courts New Delhi CS/7408/2016 Page 25 of 25