State Consumer Disputes Redressal Commission
Akhilesh Upadhayay vs St. Catherine'S Hosipital on 3 March, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. C/2002/121 ( Date of Filing : 12 Jul 2002 ) 1. Akhilesh Upadhayay a ...........Complainant(s) Versus 1. St. Catherine's Hosipital a ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 03 Mar 2022 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint Case No. 121 of 2002 Akhilesh Upadhyays/o Sri Diwakar Upadhyay, R/o C-122, Avas Vikas Colony, Unnao. ...Complainant. 1- St. Katherini Hospital, 63/8, Mahatma Gandhi Marg, Kanpur through Manager. 2- Dr. J.M. Das c/o St. Katherini Hospital, 63/8, Mahatma Gandhi Marg, Kanpur. ...Opp. Parties. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri Alok Ranjan, Advocate for complainant. Sri Arun Tandan, Advocate for the OP no.1. None for the OP no.2. Date :30.03.2022 JUDGMENT
Per Mr. Rajendra Singh, Member: This complaint has been filed under section 17 of The Consumer Petition Act 1986.
In brief the facts of the complaint are that, that the complainant's wifeSmt. Urmila Upadhyay was having some gynaecological problem so the complainant took her to the opposite party, hospital, for medical examination and treatment in January 2001. The opposite party no.1 on realisation of fees and charges put her as outdoor patient under the treatment of Dr. Anupama Singh, who treated her for about six months, but her condition did not show any sign of improvement rather it deteriorated due to deficient medical services of the hospital. The complainant purchased all the medicine and undergone all the tests as prescribed byDr. Anupama Singh at the cost of several thousand rupees. The complainant requested the hospital authorities to get her wife checked by some other gynaecologist but they told that OP-2 is competent and she has been put under the treatment of opposite party no.2. She examined the complainant's wife on eighth June 2001 and told him that she needs immediate operation for removal of uterus and only then her bleeding will be controlled and asked complainant to deposit Rs.10,000/- as advance for the operation. The complainant deposited the said amount on 10 June 2001 but no receipt was given to him and he was told that proper Receipt shall be given at the time of discharge.
On 11 June 2001, opposite party no.2 with the help of his associates including Dr. Anupama Singh performed operation of complainant wife and removed uterus and told the complainant that operation is successful. Within a few hours of operation her condition started deteriorating. The complainant approached opposite party no.2 and requested him to examine his wife but opposite party no.2 did not come to see her. There was problem in passing of urine and she was crying due to severe pain. The complainant again rushed to the opposite party no.2 who, then examined complainant wife, and administered some medicines and injections but the condition of complainant's wife did not improve. The complainant then requested opposite party no.2 to get her wife examined by some urologist and then the opposite party referred his wife to Dr. V.K. Mishra, who on examination diagnosed that her left ureteric orifice is blocked and finding her condition critical, he referred the patient back to opposite party no.2 and advised him to refer the patient to some better Institute. The complainant requested the opposite party no 2 to refund his wife to SGPGI, Lucknow for proper treatment. Opposite party no 2 then referred his wife to SGPGI. The complainant took her wife to SGPGI where she was examined and several tests were conducted and then it was revealed that due to negligence and lapses of operating surgeons, urinary tube of complainant's wife was stitched and due to this, discharge of urine was completely stopped making her condition critical.
Another operation of complainant's wife had to be performed at SGPGI to remove the defects of first operation performed by opposite party no.2 but the defect of the first operation could not be rectified. The deficiencies and negligence in medical services committed by opposite parties during operation as well as after operation in providing postoperation care and treatment caused untimely and premature death of his wife at the young age of 35 years.
The complainant's wife was running a beauty parlour and was earning about Rs.4000 per month and her premature death has caused the complainant and annual loss of income at the rate of his Rs 48,000 per annum and which this rate losses if claimed even for a period of 25 years, it will come to Rs.12 lakhs. The complainant's wife left behind her one daughter aged about 14 years and one son aged about 17 years and due to financial crisis caused to the family owing to her death, their education is adversely affected. The complainant is only a constable having a meagre salary which is wholly insufficient to maintain the family and providing higher education to the children. The monthly loss of income of Rs.4000 per month due to premature death of complainant's wife has also lowered the living standard of the children.
The complainant had suffered severe mental shock and agony due to premature death of his wife which has robbed the complainant of her consortium, the services, care and company of a wife for rest of his life. The loss caused to complainant in this regard is irreparable yet these losses are assessed at Rs.3 lakhs. Her death also robbed her minor children of her motherly love, care and affection. The losses caused to complainant's some minor children are also in the privy loss yet these losses are assessed tentatively at Rs.3 lakhs. The complainant has spent about Rs.50,000/- over the medical treatment and medical checkups of his wife and in purchasing of medicines. The complainant has suffered immense physical harassment and mental shock due to deficient and prolonged treatment, deficiency and negligence in medical services committed by both the opposite parties, before, during and after operation of complainant's wife and the losses on this count are assessed at Rs.50,000/-. Hence the complainant filed the complaint for the above mentioned relief with interest at a rate of 18% from the date of filing of complaint and also Rs.8000 was cost of the suit.
The opposite party no.1 has filed his objection stating that the complaint is based upon a gross misconception regarding medical negligence of doctor or a hospital cannot be said to be guilty of negligence merely because a medical procedure fails or a risk inherent in the medical procedure manifests itself. A doctor can be said to be guilty of negligence only if he commits such an error which no doctor of reasonable competence will commit. Medicine being an exact science and mere failure of the medical procedure cannot be presumptive of negligence on the part of a doctor. The deceased was a cancer patient and was referred to SGPGI, Lucknow and she remained alive after treatment for four months. It cannot be said that the respondent on the hospital were guilty of evidence. The complainant is not a consumer as much as the operation was performed upon his wife free of charge. The operation was performed with utmost skill, due care and caution by Dr J M Das who possessed the necessary qualification and experience for performing the operation. The complainant involvesdecision on highly disputed question of the facts relating to intricate complex and difficult medical issues. The points in issue cannot be decided summarily on the basis of affidavit and for the proper trial of the complaint, voluminous in is oral evidence of medical experts shall have to be recorded. The complainant being grossly misconceived motivated with bonafidely intention, suffers from vice of suppression and distortion material facts and no deficiency of services has been committed by the opposite parties.
The complainant's wife approached the hospital on 12.08.2000 for the treatment of intermenstrual bleeding and post coital bleeding. She was examined and given the treatment which relieved her from her problem of bleeding. On 28 October 2000, she again visited the hospital and was suspected for cervical cancer and was advised by the attending doctor to consult an expert. She did not consult any expert and visited, on 11.11.2000, 15.11.2000, 16.12.2000, 13.01.2001 and 20.01.2001 with the same complaint she was suffering. The necessar1y treatment and repeated advised by the treating doctor to consult a gynaecologist and to undergo cervical biopsy was given, but she did not undergo cervical biopsy as advised to her. On 10.02.2001 the deceased came to the hospital without following any advice as suggested earlier. In the month of April 2001 she was given the last advice to consult an expert by the attending doctor for her problem. In the month of May 2001, she again visited the hospital with a different complaint for which she was treated. On seventh June 2001 she on her own request was shown to Dr. J. M. Das, the senior surgeon for her complaint. Dr. Das examined her and advised her for cervical biopsy, which was done on the same day. The report disclosed the exact nature of the disease, i.e. "differentiated squamous cell carcinoma of the cervix". After knowing the nature of the disease, the senior doctor asked the patient to consult some oncologists but the patient and her husband insisted the senior doctor to operate on her and she underwent Abdominal Pan Hysterectomy on11.06.2001. It is therefore a false allegation that the deceased was not advised for taking any expert opinion other than this hospital. The complainant has concealed the real facts and as such not entitled for any relief. In fact the deceased had come to the hospital at first on 12 August 2000 and not on January 2001 as mentioned in the complaint. The deceased and her husband being satisfied with the treatment of the hospital gave their written consent for the surgery that was conducted on 11th June 2001. It is totally false and baseless allegation that Rs.12,000/- was charged as an advance for the operation.
The hospital has its own reputation. It is a charitable institution rendering medical services to the needy poor patients. The respondent deposited only Rs.1000 as an advance vide receipt no.717 dated 08.06.2001 for the cervical biopsy. No other charges were rendered by the opposite party no.1. The patient was given 100% charity. It is totally false allegation that the opposite party no.2 did not pay any attention to the patient. The opposite party no.2 refer the case to Dr. V. K. Mishra for cystoscopy to rule out any cancerous involvement of the ureters. The report of Dr. Mishra was suggestive of the involvement of both the ureters by the cancerous process. To get an advance treatment, the opposite party no 2 referred the case to SGPGI. He himself arranged the transport by providing the hospital ambulance and nursing staff to SGPGI. It is false to say that there was any defect in the operative procedure performed by the opposite party no.1 and 2. Had the operation being not successful, the patient would not have survived for about four months after the surgery. The surgical performance was completed and in consonance with the text, established norms and standard. It is denied that the complainant had suffered a loss of Rs.4000/- per month.
The death of complainant's wife was not the result of the operation performed by the opposite parties hence the parties are not liable to pay any compensation. The complainant's wife was a cancer patient which was pointed out in the cervical biopsy done on 08.06.2001. It is denied that the complainant's wife was running any beauty parlour. The complainant is neither the consumer as defined under Consumer Petition Act nor opposite party is guilty for committing deficiency in service, therefore the Hon'ble Forum has got no jurisdiction entertain the complaint. The complainant is not entitled for any relief therefore it is prayed that this Hon'ble Forum be pleased to dismiss the complaint in the interest of justice.
The opposite party no.2 also filed his written statement which is same as filed by the opposite party no.1. All the averments are same. Even the above party no.2 did not mention himself as myself for me but instead show himself as opposite party no.2. So it is not proper to reproduce although the averments which has already been mentioned in the written statement of the opposite party no.1.
We have heard the learned counsel for the complainant Sri Alok Ranjan and learned counsel for the opposite party no.1 Sri Arun Tandan. None appeared for the opposite party no.2. We have perused the documents, pleadings and evidence on record.
First of all we see that what the ureter is ?The ureter is a tube that carries urine from the kidney to the urinary bladder. There are two ureters, one attached to each kidney. The upper half of the ureter is located in the abdomen and the lower half is located in the pelvic area. The ureter is about 10 to 12 inches long in the average adult. The tube has thick walls composed of a fibrous, a muscular, and a mucus coat, which are able to contract. Ureter disorders include:
Duplication of the ureter: a congenital (from birth) condition in which two ureters form on the same kidney.
Ureteropelvic junction obstruction: this occurs when the connection between the kidney and ureter is blocked, preventing urine from exiting the kidney.
Ureterovesical junction obstruction: When the connection between the ureter and bladder is blocked.
If any of these disorders occur, the passage of urine is blocked and can cause pyelonephritis (inflammation of the kidney due to infection), loss of renal function, or renal calculi (kidney stones). Treatment is possible through insertion of a catheter (a special tube), a stent (a support to keep vessels or tubes open), or through surgery. If an infection is found, antibiotics are often prescribed.
From the written statement of the opposite parties, it is clear that the complainant first visit the hospital with his wife on 12.08.2000 further treatment of intermenstrual bleeding and postcoital bleeding. What is intermenstrual bleeding and postcoital bleeding ?Intermenstrual bleeding between periods is also called abnormal vaginal bleeding, spots, and menorrhea. If bleeding occurs between periods, it has many causes. Some causes are easy to treat, but others may indicate a serious underlying condition. Whether you experience severe bleeding between periods, it is important to visit your doctor for tests, diagnoses, and treatment options. Any woman who believes she has an irregular menstrual bleeding pattern should think carefully about the specific characteristics of her vaginal bleeding to help. Your doctor assesses your specific situation.
Bleeding during cycles can be caused by several reasons, including:
A growth in uterus or cervix Tension A change in medication A miscarriage Vaginal dryness A hormonal imbalance Cancer If you are pregnant, your doctor may order a pregnancy test. If youare bleeding is heavy, your doctor may, in addition to other tests, also monitor your blood count to make sure you do not have a low blood count due to blood loss. This can lead to iron deficiency and anemia. An ultrasound examination of your pelvic area shows both the uterus and the ovaries. It can also show the cause of your bleeding. An endometrial biopsy could be recommended by your doctor.
This is a test of the lining of the uterus. This is done by inserting a thin plastic tube (called a catheter) into your uterus. Your doctor will use the catheter to remove a small portion of the uterine wall. He or she will send the cover to the laboratory for analysis. The test will show if you have cancer or a change in cells. A biopsy is painless and can be performed in the doctor's office. Another test is a hysteroscopy, a thin tube with a small camera is placed in the uterus.
The camera shows your doctor on the inside of your uterus. If something abnormal pops up, your doctor may get tissue for a biopsy.
Postcoital bleeding refers to spotting or bleeding that occurs after intercourse and is not related to menstruation.
The prevalence of postcoital bleeding ranges from 0.7 to 9.0 percent of menstruating women. There are multiple etiologies for this common complaint in which most are benign such as cervicitis or cervical polyps. However, the most serious cause of postcoital bleeding is cervical cancer. There are currently no recommendations from governing bodies such as the American College of Obstetricians and Gynecologists on evaluating and aretreating women with postcoital bleeding. The purpose of this paper is to discuss the common causes of postcoital bleeding, the etiologies of postcoital bleeding, and the likelihood that malignancy is the underlying cause. After an extensive literature review, we compiled a paper illustrating the key concepts a practitioner should know when it comes to postcoital bleeding. Finally, this review will conclude withtreatment options for women who are found to have an identifiable source for their bleeding and a discussion on the natural history of postcoital bleeding in women who are found to have no identifiable etiology on evaluation.Every woman presenting with postcoital bleeding requires a thorough examination of the genital tract. A bivalve speculum exam should be performed to evaluate the vaginal rugae and cervix. Attention should be focused to determine if there are any lacerations or trauma to the vaginal walls. Upon examining the cervix, one should evaluate any obvious gross lesions on the cervix or lesions protruding through the cervical canal. Colposcopy may be considered if there are any suspicious lesions on the cervix to further evaluate the lesion under high power. In obtaining cultures or clearing mucus from the cervix, one should also determine whether gentle palpation alone of the cervix with a swab is able to recreate bleeding.
Now in the light - we see the present case. In this case no case file or case history of the patient has been filed by the opposite parties. No BHT has been submitted to the court. It was the duty of the parties to submit all the relevant documents related to the treatment and pathological examination ofthe patient. Only one photocopy document is available on the file which is a referral letter by Dr. J. M. Das to SGPGI dated 12.06.2001. In this letter it has been written that a patient operated for Pan hysterectomy for Ca cervix withmetastatis in the nodes, operated last evening at 7 PM. She developed complete Anuria after 100 cc of urine post operatively. She was referred to Dr. V. K. Mishra for cystoscopy and found to haveblockage atthe left ureteric end of the kidney and rt was notvisible. Her report and Dr. Mishra's report are enclosed. Kindly do the needful. She is in a critical stage. By this letter it is clear that the patient was at the critical stage at the time when she was referred to SGPGI. In this referral letter word used is metastatis. What does it mean? Cancer that spreads from where it started to a distant part of the body is called metastatic cancer. For many types of cancer, it is also called stage IV (4) cancer. The process by which cancer cells spread to other parts of the body is called metastasis.So it is clear that when the deceasedreached fourth stage of cancer, she was referred toSGPGI. Why all the report has not been filed before this court ? Whenyou are running a nursing home, it is your duty to place allthe relevant documents before the court for a perusalwhich are related to a patient whose case is pendingbefore the court of law. In this case except this referralletter no other documents have been produced before the court by the opposite parties, who were custodian of themedical papers of the deceased.
How fast does cervical cancer grow?
How quickly does cervical cancer develop? Cervical cancer develops very slowly. It can take years or even decades for the abnormal changes in the cervix to become invasive cancer cells. Cervical cancer might develop faster in people with weaker immune systems, but it will still likely take at least 5 years.
Cancer has spread beyond the pelvis, or has spread to the lining of the bladder or rectum, or has spread to other parts of the body. Stage IV is divided into stages IVA and IVB, based on where the cancer has spread.
At what stage of cervical cancer does bleeding occur?
Stage 2 cancer spreads to the parametrium and past the uterus to the upper vagina. Because the tumor is growing into nearby tissue, noticeable symptoms are more likely to occur at this stage. Symptoms of stage 2 cervical cancer include: Abnormal uterine bleeding.
Doctors assign the stage of the cancer by evaluating the tumor and whether the cancer has spread to other parts of the body.
Staging is based on the results of a physical exam, imaging scans, and biopsies.
Stage I: The cancer has spread from the cervix lining into the deeper tissue but is still just found in the uterus. It has not spread to other parts of the body. This stage may be divided into smaller groups to describe the cancer in more detail (see below).
Stage IA: The cancer is diagnosed only by viewing cervical tissue or cells under a microscope. Imaging tests or evaluation of tissue samples can also be used to determine tumor size.
Stage IA1: There is a cancerous area of less than 3 millimeters (mm) in depth.
Stage IA2: There is a cancerous area 3 mm to less than 5 mm in depth.
Stage IB: In this stage, the tumor is larger but still only confined to the cervix. There is no distant spread.
Stage IB1: The tumor is 5 mm or more in depth and less than 2 centimeters (cm) wide. A centimeter is roughly equal to the width of a standard pen or pencil.
Stage IB2: The tumor is 2 cm or more in depth and less than 4 cm wide.
Stage IB3: The tumor is 4 cm or more in width.
Stage II: The cancer has spread beyond the uterus to nearby areas, such as the vagina or tissue near the cervix, but it is still inside the pelvic area. It has not spread to other parts of the body. This stage may be divided into smaller groups to describe the cancer in more detail (see below).
Stage IIA: The tumor is limited to the upper two-thirds of the vagina. It has not spread to the tissue next to the cervix, which is called the parametrial area.
Stage IIA1: The tumor is less than 4 cm wide.
Stage IIA2: The tumor is 4 cm or more in width.
Stage IIB: The tumor has spread to the parametrial area. The tumor does not reach the pelvic wall.
Stage III: The tumor involves the lower third of the vagina and/or: has spread to the pelvic wall; causes swelling of the kidney, called hydronephrosis; stops a kidney from functioning; and/or involves regional lymph nodes. Lymph nodes are small, bean-shaped organs that help fight infection. There is no distant spread.
Stage IIIA: The tumor involves the lower third of the vagina, but it has not grown into the pelvic wall.
Stage IIIB: The tumor has grown into the pelvic wall and/or affects a kidney.
Stage IIIC: The tumor involves regional lymph nodes. This can be detected using imaging tests or pathology. Adding a lowercase "r" indicates imaging tests were used to confirm lymph node involvement. A lowercase "p" indicates pathology results were used to determine the stage.
Stage IIIC1: The cancer has spread to lymph nodes in the pelvis.
Stage IIIC2: The cancer has spread to para-aortic lymph nodes. These lymph nodes are found in the abdomen near the base of the spine and near the aorta, a major artery that runs from the heart to the abdomen.
Stage IVA: The cancer has spread to the bladder or rectum, but it has not spread to other parts of the body.
Stage IVB: The cancer has spread to other parts of the body.
Therefore one thing clear that cervical cancer grows very slowly and it has four different stages. The complainant and her wife visited the opposite party many times between 12.08.2000 to June 2001. The deceased was referred to Dr. V.K. Mishra sometime after 11.06.2001 because as per averment in the written statement the deceased underwent abdominal Pan hysterectomy on 11.06.2001. She was referred to SGPGI on 12.06.2001. When did she referto Dr. V. K.Mishra ? Neither the referral letter for Dr. V. K. Mishra filed nor any report of Dr. V. K. Mishra filed.
Now a question arises before us. In para-two of the written statement it has been admitted by the opposite parties that on 28.10.2000 she again visited the hospital and was suspected for cervical cancer and was advised by the attending doctor to consult an expert. In spite of this advice she again reached the nursing home of the opposite party and she was entertained by the opposite parties. Why? When she had suspected case of cervical cancer, how the opposite party can entertain such a patient? Here, this shows carelessness and deficiency in service. You are a doctor and you are running a nursing home which must have so many doctors but in spite of it and knowing that the deceased was suspected for cervical cancer, you undertook her treatment not only prescribed medicine to her but also entertained her for cervical biopsy which was done on 7 June 2001. This biopsy report disclosed the nature of the disease that is differentiated squamous cell carcinoma of the cervix.
Cervical cancer develops slowly and over many years. Before turning to cancer, the cells in your cervix go through a lot of changes. The once normal cells in your cervix start to appear irregular or abnormal. These abnormal cells may go away, stay the same or turn into cancer cells.
Regular gynecological screenings with a Pap test can detect most cases of cervical cancer. A Pap test, or Pap smear, is a test that collects cells from your cervix. These cells are examined for signs of precancers or other irregularities.
If your Pap comes back as abnormal, further testing is necessary. This could include an HPV test, which is a specific test that checks the cells of your cervix for HPV infection. Certain types of HPV infection are linked to cervical cancer.
Your healthcare provider may also examine your cervix and take a sample of tissue for a biopsy if they suspect you have cancer. There are many techniques that can be used to obtain the tissue, like punch biopsy or endocervical curettage. In other cases, a wire loop or conization are used to gather tissues from the cervix for biopsy.
If the biopsy confirms cancer, further tests will determine whether the disease has spread (metastasized). These tests might include:
Liver and kidney function studies.
Blood and urine tests.
X-rays of your bladder, rectum, bowels and abdominal cavity.
This process is called staging.
The goal of cervical cancer screening is to detect cell changes on your cervix before they become cancer. The number of cases and deaths from cervical cancer in the U.S. has decreased significantly since people have been getting regular cervical cancer screenings.
Pap test: This test detects abnormal or irregular cells in your cervix.
HPV test: This test detects the high-risk types of HPV infection that are most likely to cause cervical cancer.
Your healthcare provider may suggest a combination Pap test/HPV test. This is called co-testing and may be an option for you if you are over 30.
Most people will not know they have cervical cancer until they are formally diagnosed with the disease. Your healthcare provider will be able to confirm cervical cancer through a series of tests and biopsies. The first signs of cervical cancer are usually mild and can only be detected by your healthcare provider. Advanced stages of cervical cancer are more likely to cause signs and symptoms.
So it has been clear that the opposite parties even after knowing that the deceased has developed cancer in cervix, treated her without any sufficient cause. The patient cannot compel Dr to proceed according to his/her choice but it is the Dr who is responsible for the proper course of treatment and in the above parties came to know that she has developed cancer or suspected case of cancer, how should the proceed without the aid and advice of an oncologist. It is a case of carelessness on the part of the parties and also showing deficiency of service by the doctor.
Now let us see the oath taken be a doctor before entering the nobel profession of the Medical World. As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. SanthaIII(1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into theout patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent.
This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
Essentials of Res Ipsa Loquitur Maxim The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In AchutraoHaribhauKhodwa and Others vs. State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence LawAccidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent.
Top of Form Bottom of Form The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v.Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligencecases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs. Lee ChuenTat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. { MarkLuney and Ken Opliphant , Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 } In A.S. Mittal &.Anr. Vs. State of UP &Ors., AIR 1979 SC 1570, the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth ₹ 12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not have occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligenceleads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.
Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
Toxic Epidermal Necrolysis ( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr.KunalSaha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr.Sukumar Mukherjee, Dr.B.Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No. 1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Honble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos. 1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Honble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.KaushikNandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation.
We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as as obiter dicta also, the judgment (43) having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties/defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion/ assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- (roundedofto Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr.Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
The above amount shall be paid by opposite parties no. 1 to 4 to the complainant in the following manner:
(i). Dr.Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation].
(ii) Dr. B.Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation]
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default.
Now we come to the facts of the present case. It has been stated by the opposite party that Dr J M Das possesses necessary qualification and experience for performing the operation. Now it is unbelievable that the opposite party repeatedly asked the complainant to get her wife checked by some other doctor. On 28 October 2000, when she was suspected for cervical cancer and was advised by the attending doctor to consult an expert, what compelled the opposite party to treat her in spite of the fact that she is a suspected cancer patient. She was coming again and again to the opposite parties hospital and the opposite parties was entertaining her each and every time unless they became helpless. In their written statement the OP parties did not mention that when she was referred to SGPGI , she was at the fourth stage of cancer which is fatal. Who's careless in this case? It is the opposite parties who were careless. Whether in this case the doctor has shown their proper care and caution. Whether the opposite parties acted in good faith? Whether the opposite parties nursing home is equipped with the proper facilities of cancer treatment or chemotherapy or radiotherapy? If not, why did they proceed with a patient having fourth stage cancer problem? Why did they entertain her even after knowing that she is a suspected case of cancer patient? The maxim res ipsa loquitur fits here without any doubt.
Now a question regarding payment. If it was a charitable hospital , why did you not produce all the statement regarding treatment of the patient from whom you did not get a single penny ? Charity begins at home. When the opposite parties came to know about the condition of the complainant wife, why did they operate her at the fourth stage of cancer? Where was charity at that time? When you can arrange an ambulance and depute staff to take her to SGPGI , you can very well arrange the same facility beforehand and may send her to the expert Dr just after you came to know about her cervix cancer . The opposite party did not show charity, sympathy and devotion to their duties. They were careless and were also involved in an unfair trade practice because they were always entertaining the patient even knowing about her deteriorating condition/health. Circumstances speak themselves and their is no need of any voluminous evidence . All the documents, case history of the patient, BHT, all the pathological reports are with the opposite parties but they did not produce it before the court. It is not believable that they did not charge a single penny from the complainant. If you are providing charity, what was the need of taking fees for pathological tests? So there is no basis on this argument of the appellant that they did not take any money from the complainant.
After considering all the facts and circumstances of the case and also considering the most important fact that the opposite parties even after knowing the serious condition of the patient/complainant's wife on 28.10.2000 , entertain her in the hospital. The condition deteriorated gradually day by day and she was referred to SGPGI on 12.06.2001. The first date when she was suspected case of cervix cancer and the date when she was referred to SGPGI , about eight months were passed which was sufficient to make her condition critical. Even after knowing this fact, the opposite parties performed operation on her body on 11.06.2001 (abdominalpanhysterectomyi.e., complete removal of the uterus, including the cervix.) It is strange that she was operated just before one day of referring her to SGPGI for treatment . It shows the extreme negligence on the part of the parties and they perform the duty of an oncologist.An oncologist is a doctor who treats cancer and provides medical care for a person diagnosed with cancer. When the opposite party was not an oncologist why did they touch the body of the complainant's wife who were suffering from cervix cancer. These are the circumstances which speak themselves regarding the negligence of the parties and all the facts showing the deficiency of service by the opposite parties.
So in this case there is no such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as to take into hand the complainant's case even after knowing that she is suffering from cervix cancer and more so operating her in the fourth stage of service cancer. An expert report is not necessary in each and every case. In this case everything is very much clear showing the negligence and deficiency in service by the opposite parties. We could not understand that the doctor and nursing home trade the patient for the best or they trade the patient on the patient's advice?
So from all the facts and circumstances of the case, from the pleadings of the parties it is established that the opposite parties acted in a most lethargic manner and did not perform their duty. They are totally negligent in this case and there is deficiency of service of the highest degree. The complainant is entitled to the relief which he claimed in his complaint.
ORDER The complainant is allowed with cost. The opposite parties are directed jointly and severally to pay Rs.18 lakhs towards compensation, Rs.50,000 towards mental agony and shock, Rs.50,000 towards the medical expenses, Rs.8000 was cost of the litigation with interest at a rate of 10% per annum from the date of filing of the complaint till the date of actual payment. The opposite parties are directed to come by this order within 45 days from the date of judgment otherwise they shall be levied to pay interest at the rate of 15% per annum on all the amount from the date of filing of the complaint till date of its actual payment.
Theopposite partiesshall be indemnified by the insurance companyif any, to the extent for which they are insured.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Jafri, PA II Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER