Delhi District Court
Ms Mary Shireen Khemchan vs Talwar Medical Centre on 29 April, 2010
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IN THE COURT OF SH SUNIL RANA
ADDL. DISTRICT & SESSIONS JUDGE 03 (WEST )
TIS HAZARI COURTS
DELHI
Suit No148/08/99
Ms Mary Shireen Khemchan,
D/o late Sh. M.H. Samuel
R/o C2, Gulmohar Park, New Delhi ...............Plaintiff
Versus
1. Talwar Medical Centre
through Dr. S.k talwar
M139, greater kailash part II
New Delhi - 110048
2. Dr. S.K. Talwar
C/o Talwar Medical Centre
M139, Greater Kailash Part II,
New Delhi - 110048
3. Dr. Garg
C/o Talwar Medical Centre
M - 139, Greater Kailash Part II,
New Delhi - 110048. .........Defendants
Date of Filing : 28.09.1999
Date of judgment : 29.04.2010
J U D G M E N T : By this judgment, I shall disposed of the suit filed by the plaintiff for recovery of Rs.4,00,000/ and permanent injunction against the defendants.
1. Brief facts of the case are that the plaintiff is a renowned woman's activist of the country and has been the President of Young Women's Christian Association of India (YWCA) of India for eight years . It :2: has been averred that plaintiff is also an executive member of the Woman's International Club and host of other Woman Organisation.
2. It has been further averred that plaintiff is also one of the brilliant journalist of the country and has been publishing her own publications namely Asian Recorder and African Recorder for the last so many years.
3. It has been further contended that a plaintiff is a known diabetic and has been consulting defendants no. 1 and 2 for the last ten years. It has been further contended that defendant no. 2 is fully acquainted with the medical and diabetic history of the plaintiff. It has been further contended that in the third week of August 1996, the plaintiff had very high sugar level and had consulted with the defendant no. 1 and 2. It has been further contended that on 19 August 1996, the plaintiff had slipped into a diabetic coma after she fell down at home and was immediately rushed to the defendant no 1 Medical centre. It has been further contended that plaintiff remained admitted at the defendant no 1 from 19/8/1996 to 30.8.1996. It has been further contended that during this period the plaintiff was under the medical treatment and monitoring of the defendant no. 1, 2 and 3. It has been further contended that plaintiff had developed haematoma at the hip after a couple of days of her stay at medical centre. It has been further contended that the said haematoma was due to result of the fall of the plaintiff when she slipped into diabetic coma. It has been further contended that defendant had treated the said haematoma of the plaintiff in a negligent manner and did not give the plaintiff the possible treatment despite the plaintiff was willing to bear all expenditure for the same. It has been further contended that the plaintiff was discharged from the defendant no. 1 medical centre by the defendant on 30.8.96 without fully treating and curing the :3: heamotoma at the hip of the plaintiff. It has been further contended that the plaintiff was asked by the defendant to regularly come to the defendant no 1 for regular dressing and bandage of the haematoma wound of the plaintiff. It has been further contended that plaintiff was handed over a bill dated 31.8.96 for a sum of Rs. 47,557/ for the medical fees and other charges and the plaintiff had paid the same by cheque bearing no. 60647 drawn on Canara Bank , Green Park extn, New Delhi. It has been further contended that the defendant no.1 has also issued a receipt dated 5.9.96 for the said amount. It has been further contended that defendant No.1 has also raised bills for injections and medicines separately and same were also paid by the plaintiff. It has been further contended that after being discharged from the defendant no 1, the haematoma wound at the hip of the plaintiff did not show any sign of improvement and on the contrary the same was getting worse day by day. It has been further contended that the plaintiff had repeatedly complained to the defendants that her haematoma wound at her hip was becoming more and more painful.
4. It has been further contended that during that period the defendants had constantly told the plaintiff that the things were under control and the Haemotoma wound would be better soon. It has been further contended that sometimes in the second week of October, 1996 the plaintiff was advised by the defendant no.2 and his associate defendant no.3 to get herself admitted for treatment of Haemotoma wound at the defendant no.1 medical centre. It has been further contended that subsequently the plaintiff believed the professional advise of defendant no.2 & 3 and got herself admitted at medical centre and was hospitalized from 14.10.96 to 19.10.96. It has been further contended that on admission on 14.10.96, it had been advised by the defendants that :4: she should immediately undergo a surgery at hospital for the Haemotoma wound. It has been further contended that defendant no. 2 & 3 had further guaranteed that said operation will be done with most modern and sophisticated technique and the plaintiff is going to get rid of her problem. It has been further contended that defendant no.2 has further asked the plaintiff to get herself operated from the defendant no.3 only and by no other person. It has been further contended that defendantno.2 had highly praised the defendant no.3 as extremely professional. It has been further contended that plaintiff was operated upon at the defendant no.1 for her hip Haematoma wound by the defendant no.3 duly assisted by defendant no.2. It has been further contended that during the surgery, the defendants did not follow the necessary and proper medical and surgical practices. It has been further contended that defendant no.3 in connivance with defendant no.2 had closed the wounds of the plaintiff which was contrary to VellestaBlished medical and surgical practice, knowing fully that the plaintiff was a known diabetic. It has been further contended that even after the said operation, haematoma wound of the plaintiff was oozing profusely. It has been further contended that the plaintiff was in constant pain and had complained to the defendants. It has been further contended that the defendants had examined the plaintiff and advised that second operation has to be carried out in order to ensure its complete recovery.
5. It has been further contended that having left with no other option, the plaintiff hesitatingly agreed for the second operation believing on the advice of the defendant no. 2 & 3. It has been further contended that even in the second operation, defendant no. 2 & 3 did not follow the proper and prescribed surgical practice. It has been further contended that defendant no.3 had again closed the wound against the medical :5: practice. It has been further contended that the said operations were conducted with absolute medical negligence of the defendant no. 2 & 03 and said operations took place only because of the fraudulent and mischievous advised of the defendant no.2 to the plaintiff. It has been further contended that even after the first and second surgery, condition of haematoma wound did not improve and the puss and infection had developed and it become extremely painful for the plaintiff. It has been further contended that subsequently the defendant no.1 to 3 had entered into a conspiracy to immediately discharge the plaintiff from the hospital knowing that operation have been done/performed contrary to the established and prescribed medical practices. It has been further contended that plaintiff was discharged from the hospital against her wishes. It has been further contended that defendant no.1 had raised a bill bearing no. 1932 dt. 21.10.96 for a sum of Rs. 30,500/ which was duly paid by the plaintiff to the defendant no.1. It has been further averred that even after discharge from the medical centre, the wound of the haematoma became worse day by day and excess cavity in the gluetal region and puss developed on the hip of the plaintiff. It has been further contended that subsequently the plaintiff had no option but to get herself examined by other medical expert and consulted with Dr. Manchanda's Clinic and was admitted for Gluetal - Abscess for I & D on 09.11.96. It has been further contended that report of the Dr. Manchanda has categorically clarified that GluetalAbscess was existing. It has been further contended that it took more than one year for the said haematoma wound on the hip of the plaintiff to recover. It has been further contended that even thereafter the plaintiff was under the constant medication and she was subsequently declared fit. It has been further contended that plaintiff has suffered irreparable loss, injury due to the medical negligence :6: of the defendant no. 1 to 3. It has been further contended that defendant no.2 had misrepresented about the medical and professional expertise and proficiency of defendant no.3. It has been further contended that there was a gross deficiency in service and negligence on behalf of the defendant no.1 to 3 in doing the operation of the plaintiff. It has been further contended that defendants did not carry out the operation as per the medical norms and plaintiff had developed large Abscess Cavity in Gluetal Region with lots of puss. It has been further contended that said Abscess Cavity was caused due to the defendants deliberate negligence and professional incompetence. It has been further contended that defendants are jointly and severally liable to pay compensation for damages to their action which resulted in Abscess Cavity in Gluetal Region.
6. It has been further contended that defendants have not carried out their professional duties in accordance with professional ethics and law as the defendants have manipulated and discharged the plaintiff from the medical centre in hurry in order to escape their liability. It has been further contended that due to medical negligence of the defendants, the plaintiff had suffered a huge medical bill and expenses which has almost left the plaintiff broke. It has been further contended that plaintiff has incurred an expense of Rs. 3 lacs on medical bills which have been paid to rectify the damage done by the defendants due to medical negligence and incompetence. It has been further contended that plaintiff has also sent legal notice to the defendant no. 1 to 3 on 07.4.99 calling upon them to pay a sum of Rs.3 lacs for the reimbursement of the medical expenses because of their medical negligence and further pay a sum of Rs.5 lacs towards the damages to the loss/damages, injury, medical inconvenience , medical shock, trauma, anxiety caused to the plaintiff. It has been :7: contended that defendant no. 1 & 2 had sent a vague reply denying all the allegations. The plaintiff has prayed for recovery of Rs.4 lacs on account of damages incurred by the plaintiff and also interest @ 24% p.a. in favour of the plaintiff and against the defendant. Plaintiff has further prayed for a perpetual injunction in favour of the plaintiff and against the defendants restraining them from destroying, altering, manipulating, tampering entire medical records pertaining to the plaintiff of the treatment/operation, operative care and stay of the plaintiff at the defendant no.1. The counsel for defendant no.1 & 2 had given statement and in view of the submission made by the parties, the application U/o 39 Rule 1 & 2 CPC was dismissed as withdrawn and relief of the perpetual injunction was deleted from prayer clause of the main suit vide order dt. 26.9.2002 by the ld. predecessor of this court.
7. Counsel for plaintiff has also relied upon the judgment titled as Sudha Garg Vs. Union of India & Ors. 156 (2009) DLT 498.
8. The summons of the suit was issued to the defendant. Defendants have contested the suit and filed WS. Counsel for defendant no. 1 & 2 has filed written statement by raising certain preliminary objections that present suit filed by the plaintiff is not maintainable and is liable to be dismissed as the plaintiff has concealed the material facts. Counsel for defendant no. 1 & 2 has further urged that suit is not maintainable in view of provision of Order 7 Rule 11 CPC and is liable to be dismissed as the plaintiff has no cause of action for filing the present suit against the answering defendants. It has been further urged that plaintiff has claimed damages on account of negligence in conducting the surgery of the plaintiff and the answering defendants did not conduct any surgery upon the plaintiff. It has been further urged that surgery was conducted by the defendant no.3 only as the plaintiff was personally :8: known to the defendant no.3 prior to the surgery. It has been further urged that plaintiff has got the surgery done by the defendant no.3 with her own consent and due to her previous relationship with the defendant no.3 as the defendant no.3 had also conducted the surgery of the mother of plaintiff in the past and the plaintiff was fully satisfied with the service rendered by the defendant no.3. It has been further urged that it is known case that the plaintiff was diabetic and due to that alleged haemotoma wound might have taken sufficiently long time to cure. It has been further urged that admittedly the answering defendants have not conducted the surgery and therefore, the instant suit is liable to be rejected. It has been further urged that it is a matter of record that under medical law the wounds of diabetic patient caused by surgery or otherwise normally takes sufficiently longer time to cure vary from patient to patient. It has been further urged that in these circumstances, any negligence can not attributed to the answering defendants if the haematoma wound of the plaintiff took longer time to heal. It has been urged that the suit of the plaintiff is liable to be rejected against the defendant no. 1 & 2.
9. On merits, It has been further urged that defendant no.2 is one of the senior doctor in Delhi and is very well respected in the medical profession. It has been urged that defendant no.2 is a qualified medical practitioner and did his post graduation in 1966, MRCP from U.K. and was also honoured with FRCP in 1992 after his brilliant carrier in Holy Family Hospital for 10 years as senior physician and cardiologist. It has been further urged that it is a matter of record that not only the plaintiff but also her mother, grand mother, sister and niece have also been treated efficiently number of times by the defendants.
10. It has been further urged that it is matter of record that plaintiff got admitted on 19.8.96 and the plaintiff is a known diabetic and :9: Thyroid patient and was brought to the nursing home at 2'clock in unconscious state. It has been further urged that immediately after the admission the plaintiff was diagnosed as the case of diabetic ketoaeinosis which is very serious medical emergency. It has been further urged that plaintiff was given blood transfusion by the answering defendants as the HB level of the plaintiff was fallen considerably. It has been further urged that due to efforts of the answering defendants on 20.8.96, the plaintiff had regained conscious and was referred to the Dr. Garg i.e. defendant no.3. It has been further urged that surgery was not recommended by the answering defendants as the plaintiff was a diabetic patient and was advised treatment of Haemotoma wound by conservative management. It has been further urged that that it is matter of record that plaintiff had developed a very large Haemotoma due to the fall at her residence on 19.8.96. It has been further urged that plaintiff was advised that due to diabetic and thyroid deficiency wound would take very long time to re absorbed. It has been further urged that during the stay of the plaintiff at the medical centre, the defendant no.3 had recommended ultra sonic therapy to the plaintiff and the plaintiff was given 10 sittings of Ultra Sonic therapy. It has been further urged that in the facts and circumstances, the plaintiff was also advised at the time of discharge to take insulin 3 times a day according to her blood sugar. It has been further urged that defendant no.3 had also advised to the plaintiff to use Lumbar Belt while walking. It has been further urged that it is matter of record that surgery was conducted with her consent at the medical centre. It has been further urged that second admission was also recommended by the defendant no.3 as the Haemotoma wound was not getting reabsorbed naturally. It has been further urged that after surgery the plaintiff was discharged on 23.9.96 after proper dressing and professional advise by the :10: defendant no.3 to take Antibiotics regularly. It has been further urged that at the time of discharge, the plaintiff was also advised by the defendant no.3 to come up for regular checkup due to past ailments i.e. diabetic and as the Haemotoma wound was going to take longer time to heal. It has been further urged that plaintiff was subsequently again admitted on 14.10.96 and the surgery was conducted by defendant no.3 only. It has been further urged that allegation made against the answering defendants are patently false and frivolous.
11. It has been further urged that plaintiff was provided the best possible treatment and the allegation that the defendant no.2 had assisted the defendant no.3 in the surgery is absolutely false and baseless. It has been further urged that it is a matter of record that defendant no.2 is a physician and cardiologist and not a surgeon. It has been further urged that during her stay the plaintiff was fully satisfied with the treatment and surgery conducted by the defendant no.3 and had duly paid her bill in respect of treatment given to her at the medial centre. It has been further urged that it is a matter of record that plaintiff was discharged after observing improvement in the condition of the plaintiff. It has been further urged that under medical law " as long as a Doctor acts in a manner which is acceptable to the medical profession and the courts finds he has attended the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it will be difficult to hold him guilty of negligence."
12. It has been further alleged that defendant can not be held liable to pay any sums to the plaintiff as the plaintiff was provided a best medical treatment by the answering defendant. Counsel for defendant no. 1 & 2 has also relied upon the following judgment :
a) JT 2009 (6) SC 221 Case titled Dr. C.P. Sreekumar, M.S. ( Ortho) Vs. :11: Ramanujam.
b) AIR 2005 SC 3180 Case titled Jacob Mathew Vs. State of Punjab.
c) Manu/SC/0098/2010 titled Kusum Sharma Vs. Batra Hospital and Medical research Centre & ors.
d ) 2007 CPC 113 (NC) case titled N. Vimalan Vs. Regional Cancer Centre ( RCC ).
13. The defendant no.3 has also filed WS and raised certain preliminary objection that plaintiff has filed a suit for recovery and perpetual injunction at which the appropriate court fees has not been affixed along with plaint as per the relief claimed, hence, the suit is liable to dismissed U/o 7 Rule 11 CPC. Defendant no.3 has raised an objection that suit is barred by limitation and hence the same is liable to dismissed. It has been further stated that there is no cause of action accrued in favour of the plaintiff and against the defendant no.3. It has been further urged that plaintiff has no right or authority to pass a judgment on the medical competence of the defendant no.3. It has been further urged that suit of the plaintiff is totally false and frivolous and not supported by any documents. It has been further urged that plaintiff has not approached the court with clean hands and had suppressed some material facts and suit of the plaintiff is liable to be dismissed. It has been further stated that present suit has been filed with malafide intention and ulterior motives in order to harass and humiliate the answering defendant. It has been further stated that plaintiff was treated in August, 1996 whereas the present suit has been filed on 29.9.99 after inordinate delay and the suit of the plaintiff is liable to be dismissed on this ground alone.
14. It has been further stated that plaintiff is admittedly known case of diabetic and as per medical jurisprudence wounds of the diabetic patient take longer time to heal vary from person to person. It has been further submitted that answering defendant has not at all responsible if the haemotoma wound of the plaintiff took longer time to heal. It has :12: been further submitted that delay caused in healing the wound of the plaintiff does not tantamount to negligence of the defendant and does not constitute any cause of action in favour of the plaintiff and against the defendant to file the present suit. It has been further submitted that answering defendant has not acted negligently as alleged by the plaintiff, in fact, the answering defendant has treated the plaintiff with due care and best of his ability and competence.
15. On merits, it has been further stated that defendant no.3 is a well experienced Orthopedic Surgeon having done graduation in 1973 from AIIMS and post graduation from AIIMS in 1978. It has been further submitted that after having worked abroad and practicing in Delhi since 1985, he is a reputed surgeon in South Delhi and well respected in medical profession. It has been further submitted that due to his experience and professional competence, the defendant was made the course director in Department of Rehabilitation Sciences in Humdard University, New Delhi. It has been further stated that answering defendant no.3 was only the visiting consultant to the defendant no.1 thrice a week. It has been further submitted that defendant no.3 has also successfully operated the mother of the plaintiff in 1996 which was 84 years old and also known diabetic patient. It has been further stated that the allegations of the plaintiff are totally false that the defendant has treated the plaintiff in negligent manner and did not give her possible treatment. It has been further stated that all allegations even otherwise are vague and based upon the surmises and conjunctures. It has been further submitted that admittedly the plaintiff is known diabetic and brought to nursing home after fall at home. It has been submitted that plaintiff was examined by the defendant for the first time on 20.8.96 and was diagnosed to have haematoma with Bluster Formation. It has been :13: submitted that the plaintiff was examined by defendant no.3 on 20.8.96, 22.8.96 and 27.8.96 and was advised to have only conservative treatment by way of physio therapy. It has been submitted that it is wrong to allege that plaintiff had developed a Heamotama at the hip after her stay at defendant no.1(Medical Centre), in fact, she was having haematoma disease before her admission in the medical centre. It has been further submitted that looking at the condition of the plaintiff, the surgery was not advised at the time of first admission. It has been further submitted that it is well known medical fact that large haematoma may takes months to disappear being internal injury. It has been further submitted that plaintiff was made fully aware of the facts that due to this large haematoma it would take longer time to reabsorbed. It has been further submitted that plaintiff had deliberately concealed the facts regarding the second admission with malafide and ulterior motives. It has been further submitted that surgery was conducted after a interval of about one month. It has been further submitted that due to her ailment and past history, the haematoma wound would have take longer time to heal. It has been further urged that on 14.10.96, the plaintiff was re admitted and given proper care and treatment. It has been further submitted that plaintiff was in contact with answering defendant since June, 1996 when her mother was operated at defendant no.1 ( medical centre) and that is why she had full confidence in the capability of the defendant. It has been denied that defendant did not follow the necessary medical and surgical practices. It has been submitted that in case of diabetes, chances of getting the infection are very high. It has been further submitted that surgery of the plaintiff was done with due care and diligence and was given best possible treatment. It has been further submitted that plaintiff was discharged after observing the progress in the :14: condition. It has been further submitted that plaintiff has paid all the medical bills without any objections. It has been further submitted that defendant did not act negligently and is not liable to pay any damages to the plaintiff and the plaintiff has not suffered any loss and injury on account of answering defendants.
16. Counsel for plaintiff has filed replication to the WS of defendants and reiterated and reafirmed the contents of the plaint.
17. From the pleading of parties, following issues were framed by the ld. predecessor of this court on 26.9.2002 : (1) Whether the present suit of the plaintiff is bad for non cause of action as per U/o 7 Rule 11 CPC ? OPD (2) Whether the suit of the plaintiff is barred by limitation ?OPD (3) Whether the plaintiff is entitled for recovery of the suit amount if so from whom ? OPP (4) Whether the plaintiff is entitled for the interest if so and what rate and from which period ? OPP (5)Relief.
18. In order to prove its claim the plaintiff has examined herself as PW1 and tried to prove the various documents on record. The bill bearing no. A1839 dt. 31.8.96 for a sum of Rs.47,577/ is Ex.PW1/1, receipt dt. 05.9.96 for Rs. 47,577/is Ex.PW1/2, bill dated 05.9.96 for Rs. 3,330/ and Rs. 2,535 as Ex.PW1/3, prescription of Dr. S.K. Talwar dt. 05.9.96 is Ex. PW1/4, cash memo of the medicine are Ex. PW1/5 to Ex.PW1/7, bill bearing no. A1932 dt. 19.10.96 for a sum of Rs.30,500/ is Ex. PW1/8, receipt dt. 24.10.96 for Rs. 30,500/ is Ex.PW1/9, the report of Dr. Manchanda is Ex. PW1/11 ( colly), discharge slip issued by Dr. Manchanda Clinic dt. 8.1.97 is Ex.PW1/12, case summary is Ex.PW1/13, plaintiff has also tried to prove the bill of Dr. Manchanda Clinic bearing no.0439 for Rs. 1,24,095/ which is Ex.PW1/14, receipt dt. 27.12.96 for Rs.1,24,095/ is Ex.PW1/15. plaintiff has also tried to prove the bill dt.
:15: 9.11.96 for Rs.2,480/ which is Ex.PW1/16. Another bill number 0516 for Rs.99,700/ is Ex.PW1/17, receipt dt. 09.1.97 for Rs.99,700/ is Ex. PW1/18.
19. Plaintiff has also tried to prove another bill no. 571 for a sum of Rs.11,340/ which is Ex.PW1/19 and the receipt dt. 8.2.97 for sum of Rs.11,340/ is Ex. PW1/20, Plaintiff has also proved bill no. 567 for Rs.9,855/ which is Ex.PW1/21, plaintiff has also tried to prove Histopathology report dt. 14.11.96 of Dr. Saxena which is Ex.PW1/22 and another prescription of Dr. Manchanda Clinic dt. 08.1.97 which is Ex.PW1/23 and the summary issued at the time of discharge dt. 05.2.97 is Ex.PW1/24 and the another prescription dt. 05.2.97 of Dr. Manchanda Clinic is Ex.PW1/25. Plaintiff has also tried to prove the report dt. 06.2.97 of Dr. A.K.Singhal which is Ex.PW1/26. Plaintiff has also proved copy of legal notice dt. 07.4.99 which is Ex.PW1/27, registered AD/receipt is Ex.PW1/28 to Ex.PW1/30, registered AD card duly received is Ex.PW/31 to Ex.PW1/33. Reply dt. 17.4.99 to the notice is Ex.PW1/34.
20. Plaintiff has also examined another witness PW2 Dr. Prabha Manchanda. PW2 has testified as PW2 and tried to prove documents from EX.PW2/1 to Ex. PW2/81.
21. PW3 Ms. Sadhana Ganguli has deposed that she knows the plaintiff for the last 30 years as she was working as National President of YMCA of India. PW3 has further deposed that she was regularly visiting the plaintiff in the hospital at the time of operation.
22. Defendant no. 1 & 2 in support of their contention have also examined Dr. S.K. Talwar as DW1. The record in respect of admission of the plaintiff is Ex.DW1/1, record in respect of second admission is Ex.DW1/2. DW1 has also proved the record in respect of mother of the plaintiff which is Ex.DW1/3, anther record in respect of third admission :16: which is Ex.DW1/4.
23. Defendant no.3 has also deposed himself as DW3 in support of his contentions.
24. I have heard the counsel for parties and gone through the record carefully. My issue wise findings are as follows: Issue no.1: Whether the present suit of the plaintiff is bad for non cause of action as per U/o 7 Rule 11 CPC ? OPD The onus to prove this issue was on the defendant. The defendant has also filed an application U/o 7 Rule 11 CPC wherein it has been averred that the plaintiff has no cause of action to file the present suit. The said application was dismissed by the ld. predecessor of this court vide order dt. 02.9.2002.
However, as far as the remaining cause of action is concerned, one has to see the prayer made in the suit. While determining as to what would constitute the cause of action, the Hon'ble Supreme Court in the case of Om Prakash Shrivastava Vs. Union of India 2006 (6) SCC207 observed in paras 12 and 13 as under :
" 12. The expression 'cause of action' has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit.
13. The expression "cause of action " is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a Court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a :17: remedy in Court from another person."
25. Hon'ble Supreme Court has laid down in Mayar (H.K) Ltd. Vs. Owner & Parties, Vessel M.V Fortune Express (2006) 3 SCC 100, that the scope of an application under order 7 Rule 11 as under :
"12 From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint has been noticed by us, do disclose the cause of action and therefore, the power under order 7 Rule 11 of the code cannot be exercised for rejection of the suit filed by the plaintiff."
26. In view of the discussion made above and the law laid down by the Hon'ble Supreme Court, I am of the opinion that the plaintiff has cause of action to file the present suit. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Issue No. 2: Whether the suit of the plaintiff is barred by limitation ?
:18: OPD The onus to prove this issue was on the defendants. The plaintiff has submitted that she was admitted at the defendant no.1 medical centre from 19.8.96 to 30.8.96 and was under medical care and treatment of defendant no. 1 to 3. The plaintiff has remained at the medical centre for a couple of days and developed a haematoma at the hip and she was discharged from the defendant no.1 medical centre by the defendant on 30.8.96 without fully treating and curing the haematoma wound at the hip of the plaintiff. The case of the plaintiff is that she has also paid a bill dt. 31.8.96 for a sum of Rs.47,577/ for the defendant's fees and other charges through cheque bearing no. 60647 drawn on Canara Bank, Green Park Entn, New Delhi. It has been contended by the plaintiff that haematoma wound did not show any sign of any improvement and on the contrary become worse day by day. The plaintiff had approached the defendant, sometimes in the second week of October, 1996 and the plaintiff was adviced by the defendant no.2 and associate defendant no.3 to get herself admitted for treatment of her haematoma wound at the defendant no.1 medical centre as the same was extremely important for the treatment of the plaintiff. It has been deposed by the plaintiff that plaintiff was hospitalized at the defendant no.1 from 14.10.96 to 19.10.96 and the plaintiff was subsequently operated second time by the defendant no.3 duly assisted by defendant no.2. Plaintiff has further deposed that even at the second operation, defendant no.2 & 3 did not follow the prescribed medical and surgical practice and further raised a bill bearing no. 1932 dt. 21.10.96 for a sum of Rs. 30,500/. The plaintiff has further deposed that haematoma wound of the plaintiff was getting worse day by day and for this reason she had to consult with Dr. Manchanda's clinic and was subsequently admitted for the Gluetal Abscess :19: for I & D on 09.11.96 and has incurred expenses of more than 3 lacs of medical bill and the plaintiff has also sent a legal notice dt. 07.4.99 PW1 has deposed that she was operated on 19.10.96 and paid the bill dt. 21.10.96 and plaintiff was subsequently operated on 09.11.96 at Dr. Manchanda's clinic. The present suit was filed on 28.9.99.
27. The defendants have not been able to establish that the suit of the plaintiff is beyond limitation. Defendants have also not brought on record anything to substantiate its defence that present suit is not within the limitation and barred by time. On the other hand, the plaintiff has been able to establish that the suit was filed within the period of limitation. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Issue no. 3: Whether the plaintiff is entitled for recovery of the suit amount if so from whom ? OPP
28. The onus to prove this issue is on the plaintiff. The plaintiff in order to prove its case has examined herself as PW1 and Dr. Prabha Manchanda as PW2 and another witness Ms. Sadhana Ganguli as PW3. The case of the plaintiff is that she is known diabetic for the last 10 years and was consulting defendant no.1 & 2 for the same. Plaintiff has stated that on 19.8.96 she had fell down at home and slipped into a diabetic coma and was immediately taken to the defendant no.1( medical centre). PW1 has deposed that she remained at the defendant no.1 from 19.8.96 to 30.8.96 and during that stay haemotama wound was developed at the hip. PW1 has further deposed that the said haemotoma wound developed due to the result of fall of the plaintiff at home. PW1 has further deposed that defendants have treated the said haemotoma wound in a negligent manner and the possible treatment was not given. PW1 has further deposed that she was discharged from the defendant no.1 on 30.8.96 :20: without fully treating and curing the haemotoma wound at the hip of the plaintiff. PW1 has further deposed that haemotoama wound at the hip was not showing any sign of improvement and on the contrary was getting worse day by day. PW1 has further deposed that defendant had assured that the things were under control and haemotoma wound would be better very soon. PW1 has further deposed that defendant no.2 had advised the plaintiff to get herself admitted for the treatment of haematoma wound at the medical centre ( defendant no.1). PW1 has further deposed that defendant 2 & 3 had examined the plaintiff and advised that she should immediately undergo a surgery at the hospital for the haematoma wound at the hip. PW1 has further deposed that defendant no.2 had highly praised the defendant no.3 and plaintiff was operated upon at the defendant no.1 by defendant no.3 duly assisted by defendant no.2. PW1 has further deposed that defendants did not follow the necessary and proper surgical practices and closed the wound of the plaintiff in a very negligent manner knowingly that the plaintiff was a known diabetic patient. PW1 has further deposed that plaintiff was in constant pain after the operation and the defendants had examined the plaintiff and advised her to go for second operation in order to ensure complete recovery. PW1 has further deposed that on the advice of defendant no.2 & 3, the plaintiff had undergone the second operation conducted by defendant no. 2 & 3.
29. PW1 has further deposed that during the second operation also defendant no.2 & 3 did not follow the proper and prescribe surgical practices and closed the wound of the plaintiff against the medical norms. PW1 has further deposed that said operation were conducted with the absolute medical negligence by the defendant no. 2 & 3. PW1 has further deposed that even after operation haematoma wound did not improve :21: and the puss and infection was developed in the said wound and she was discharged from the hospital against her wishes. PW1 has further deposed that subsequently the plaintiff had consulted with Dr. Manchada and was admitted in his clinic for gluetal abscess for I & D on 09.11.96. PW1 has further deposed that after treatment at the Dr. Manchanda's clinic the said haematoma wound at the hip of the plaintiff took more than one year to recover. PW1 has further deposed that she was under
constant medication and subsequently declared fit. PW1 has further deposed that she has suffered a irreparable loss, injury due to the medical negligence of defendants. PW1 has further deposed that there was a gross negligence and deficiency in service on behalf of defendants in doing the operation of the plaintiff. PW1 has further deposed that said abscess cavity was caused due to the deliberate negligence and professional incompetence of the defendants. PW1 has further deposed that plaintiff had incurred an expenses of Rs. 3 lacs which have been paid to rectify the damage caused due to the medical negligence and incompetence of the defendants.
30. PW2 Dr. Prabha Manchanda has deposed in her examination that she did not examine or treated the plaintiff as she is gynecologist. PW2 has further deposed that she can not say whether the treatment given for haematoma wound or abscess was right or wrong. PW2 has further deposed that diabetic patient takes longer time to recover/heal.
31. On the other hand, the defence set out by the defendants are that they have taken the due care and plaintiff was operated according to the medical norms and no negligence was done by the defendants at the time of operation of the plaintiff. Defendants have examined Dr. S.K. Talwar as DW1. In the entire cross examination of DW1 there is not even iota of evidence to prove that the defendants were negligent at the :22: time of carrying out the treatment/operation of the plaintiff. DW1 has denied the suggestion that defendants have not followed the appropriate medical and surgical practices during both the surgeries/operations. DW 1 has further denied the suggestion that the defendant have closed the wound of the plaintiff despite knowing that the plaintiff was a known diabetic. DW1 has further denied the suggestion that the wound was closed contrary to the well established medical and surgical practices. DW1 has further denied the suggestion that the plaintiff has suffered due to the deficiencies in medical advice and services provided by defendants. Dr. V.K. Garg, defendant no.3 himself examined as DW2 and deposed that he is qualified MBBS doctor from AIIMS in 1973 and also done MS from the same institution in 1978. In the entire cross examination of DW 2 nothing has come on record to prove that the defendants were negligent at the time of operation of plaintiff.
32. From the record and the oral submission and documents placed on record it has been established and in fact not disputed that the plaintiff was admitted in the hospital for the treatment of haematoma wound and was operated by defendant no.3. Parties had a relationship of doctor and patient between them. The question is whether there was a professional misconduct and negligence on the part of the defendants at the time of operation of the plaintiff.
33. Before deciding this issue, I have an occasion to go through the Law of Medical Negligence which is reproduced under :
34. Negligence mean omission to do something which a reasonable and prudent person would not do. Professional negligence or medical negligence may be defined as want of reasonable degree of care and skill or willful negligence on he part of the medical practitioner in the treatment of a patient with whom a relationship of professional attendant :23: is established, so as to lead to his bodily injury or to the loss of his life.
35. Under normal circumstances, the onus or burden of proof lies heavily on the patient. Lord Dening in Hucks vs. Cole, 1968 (118)NLJ 469 had observed that a charge of profession negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motor. The consequences were far more serious. It affected his professional status and reputation and the burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear surgical operations or a medical treatment. A doctor was not to be held negligent simply because something went wrong.
36. Allegations of negligence against a medical practitioner should be considered very seriously and the allegation should be fool proof and standard of proof of fault also should be of high degree and probabilities.
37. A professional charged with negligence can clear himself if he shows that he acted in accordance with general and approved practice. It is not required in discharge of his duty of care that he should use the highest degree of skill, since the same may never be acquired by each and every individual. Even deviation from normal professional practice and special circumstances is not necessarily evidence of negligence. As regards the standard of care required for the medical man it can be stated that a mistaken diagnosis is not necessarily a negligent diagnosis. A practitioner can only be held liable in this respect if the diagnosis is so palpably wrong as to prove negligence, that is to say if his mistake is of such a nature as to imply an absence of reasonable skill and care n his part, regard being had to the ordinary level of skill in the profession.
38. In Jai Prakash Saini Vs. Director, Rajiv Gandhi Cancer institute and Research Centre 2003 (2) CPR 202, it has been held that in :24: order to decide whether negligence is established in any particular case, the alleged act or omission or course of conduct, complained of, must be judged not by ideal standards nor in the abstract but against the back ground of circumstances in which the treatment in question was given and for establishing negligence on the part of a doctor is, as to whether he has been proved guilty of such failure as no doctor of ordinary skill would be guilty if acting with reasonable care. Merely because a medical procedure fails it cannot be stated that the medical practitioner is guilty of negligence unless it is proved hat the medical practitioner did not act with sufficient care and skill and the burden of proving the same rests upon the person who asserts its.
39. In Kusum Sharma Vs. Batra Hospital and Medical research Centre & ors Manu/SC/0098/2010, the Hon'ble Supreme Court has laid down, while deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view: I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do , or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each cases is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below :25: that of the standards of a reasonably competent practitioner in his field. V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as procedure greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering with did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conductive to the efficiency of the medical profession if no doctor could administer medicine without halter round his neck. IX. It is our burden duty and obligation of the civil society to ensure that the medical professional are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserves to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they :26: perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patient have to be paramount for the medical professional.
XII. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctor can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence , they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.
40. Apex Court in Achutrao Haribhau Khodwa and Others Vs. State of Maharashtra & Ors, I (1996) CLT 532 has held that: " The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but s long as a doctor acts in a manner which is acceptable to the medical profession and the courts find that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. "
41. Apex court in Jacob Mathew Vs. State of Punjab and Anr, III (2005)CCR 9 SC has held that :
" 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 :27: 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 skill in that profession. "
42. A perusal of the record of the case shows that both the doctors are well qualified and having a practice of almost 20 to 30 years. Defendant no.3 has done MBBS from AIIMS in 1973 and had also done MS from AIIMS in 1978. Defendant no.2 is also a senior physician and cardiologist and did his graduation in 1966 and MRCP from U.K and was honoured with FRCP in 1992 for his excellent work in the medical profession. It is an admit case of the plaintiff that she is chronic diabetic patient. PW2 Dr. Prabha Manchanda has stated in her cross examination that she can not say without going through the treatment whether the treatment given to the plaintiff was appropriate or not. PW2 has admitted in her further cross examination that a diabetic patient takes longer time to heal. It is a case of the plaintiff that she had fully recovered after some time. DW2 has deposed that since the plaintiff was known diabetic patient and the haematoma wound had taken longer time to heal and it does not tantamount to negligence of defendants. DW2 has further deposed that plaintiff was treated with due care and best of their ability and competence and they can not be held liable to be negligent.
43. The burden to prove this issue is on the plaintiff who failed to establish its case. In view of the discussion made above the plaintiff has not been able to establish how the defendants were negligent and liable to pay the amount claimed. The plaintiff has not brought any witness into the the witness box to prove her claim. Pleadings contained in the plaint is no evidence, far less, proof. In terms of section 102 of the Evidence Act, 1872, the initial onus to prove its claim is always on the plaintiff and if he/she discharges that onus and makes out a case which entitles him/her :28: to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. The plaintiff have not been able to establish any negligence on the part of defendants, hence, plaintiff is not entitled for recovery of the suit amount from the defendants. On the basis of above discussion and relying upon the judgments, it can not be said that the doctors were negligent in performance of their duties. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
Issue no. 4: Whether the plaintiff is entitled for the interest if so and what rate and from which period ? OPP
44. Plaintiff has also claim interest on the suit amount. In view of the finding given on the issue no.3, since the plaintiff has not been able to establish the case in her favour and is not entitled for the suit amount. Hence, plaintiff is not entitled for interest as prayed for. Accordingly, this issue is also decided against the plaintiff.
45. Relief As the plaintiff has failed to prove its case, therefore, In view of the findings on the above issues, the present suit is hereby dismissed. However, in the peculiar facts of this case, no order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( Sunil Rana )
today i.e.29th April, 2010. ADJ - 03 (West)/Delhi
:29:
Suit No.148/08/99
29.04.2010
Present: Proxy counsel for plaintiff.
Sh. G.S. Narula counsel for defendant no.1 & 2.
Sh. Mahesh Sharma counsel for defendant no.3.
Vide separate judgment, the present suit is hereby dismissed.
However, in the peculiar facts of this case, no order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
( Sunil Rana ) ADJ 03(West)/Delhi 29.04.2010