State Consumer Disputes Redressal Commission
Dr. A. K. Srivastava vs Ram Diwakar Panday on 12 January, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2006/813 ( Date of Filing : 31 Mar 2006 ) (Arisen out of Order Dated in Case No. of District State Commission) 1. Dr. A. K. Srivastava a ...........Appellant(s) Versus 1. Ram Diwakar Panday a ...........Respondent(s) BEFORE: HON'ABLE MR. JUSTICE PRESIDENT PRESIDENT HON'BLE MR. JUSTICE ASHOK KUMAR PRESIDENT HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 12 Jan 2023 Final Order / Judgement RESERVED STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTAR PRADESH, LUCKNOW APPEAL NO. 813 OF 2006 (Against the judgment/order dated 01-03-2006 in Complaint Case No. 543/2001 of the District Consumer Commission, Kanpur Nagar Dr. A K Srivastava Clinic situate at H.No.118/333 Kaushalpuri, Kanpur Nagar, Kanpur ... Appellant Versus Dr. Rajesh Verma Clinic situate at Kanchan Nagar-A Shuklaganj, Unnao. Dr. A N Shukla Through Dr A K Srivastava Clinic situate at H.No.118/333 Kaushalpuri, Kanpur Nagar R/o 120/495 LajpatNagar,Kanpur New India Assurance Company Limited Branch Code-84/106 Kailash Motors Building, AfeemKothi Kanpur ...Respondents AND APPEAL NO. 832 OF 2006 (Against the judgment/order dated 01-03-2006 in Complaint Case No. 543/2001 of the District Consumer Commission, Kanpur Nagar Dr. A N Shukla, S/o Lat Sri M N Shukla R/o 827, Sector-AWorld Bank Colony Barra, Kanpur, U.P. ...Appellant V/s Ram DiwakarPandey R/o MohallaKanchan Nagar A-ShuklaGanj, Unnao Hall Mukam 200/12 Babupurva Colony, Kidwai Nagar Kanpur Nagar New India Insurance Company Limited Branch Code 84/106 Kailash Motor Building AffimKothi, Kanpur Nagar. ...Respondents :2: BEFORE: HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT HON'BLE MR. VIKAS SAXENA, MEMBER
For the Appellant : Mr.Jayant Mohan Verma, Advocate. For the Respondent :Mr. O P Duvel, Advocate. Dated : 27-04-2023 JUDGMENT PER MR. VIKAS SAXENA, MEMBER
These two appeals have been filed under Section-15 of the Consumer Protection Act 1986 against same judgment and order dated 01-03-2006 passed by District Consumer Commission, Kanpur Nagar in Complaint Case No. 543/2001 Ram DiwakarPandey V/s Dr. A K Srivastava and others. As such, both appeals are being decided by a common judgment.
Appeal No. 813/2006 has been filed by Dr. A K Srivastava who is opposite party no.1 of complaint. Appeal No. 832/2006 has been preferred by Dr. A N Shukla who is opposite party no.3 of complaint.Vide impugned judgment and order, the District Consumer Commission has allowed complaint and has ordered opposite party no.1 Dr. A K Srivastava of complaint and opposite party No.3 Dr. A N Shukla of complaint to make payment of Rs.4,00,000/- jointly to the complainant on account of death of his son within two months from the date of judgment. The District Consumer Commission has further ordered that if the aforesaid amount is not paid within the stipulated time period, the interest at the rate of 8% per annum from the date of institution of complaint till the date of payment shall also be paid by the opposite parties. The District Consumer Commission has dismissed the complaint against the opposite party No.2 and opposite party No.04.
Feeling aggrieved with the judgment and order passed by District Consumer Commission, the opposite parties have filed these appeals.
In both the appeals Sri Jayant Mohan Verma, learned Counsel for appellant appeared and Sri O.P. Duvel, learned Counsel for respondent/complainant appeared and submitted arguments.
We have heard learned Counsel for the both parties and have gone through the impugned judgment and order as well as records of the case.
:3:Facts of the case stated in brief are that the complainant alongwith his son Manoj Kumar Pandey visited the clinic of opposite party No.02 Dr. Rajesh Verma, Unnao for treatment of ear of his son, who accompanied the complainant and his son visited the clinic of opposite party No. 01, Dr. A K Srivastava, Kanpur City, the expert in the treatment of ailment in his ear. Dr. A K Srivastava, the opposite party No. 01 thoroughly examined the patient and advised for a surgery. The surgery was performed at Kulvanti Nursing Home, Kanpur City on 14-11-2000 at 4 P.M. after giving anaesthesia by opposite party No.03 Dr.A N Shukla, who is the Anaesthetist in the presence of opposite parties No. 02. and the opposite party No.01 Dr.A K Srivastava.
It has been alleged by the complainant that after the surgery the patient was shifted in the bed and the opposite parties informed due to inadvertent administering of the double dose of the anaesthesia, the patient will be conscious after four hours. After this suggestion, the opposite parties left for residence.
It has been further alleged by the complainant in his complaint that at about 12.00 p.m. in the night the condition of the patient had deteriorated. The complainant informed the condition of the patient to Dr. A K Srivastava, opposite party No.01 who came to the nursing home at 02.00 p.m. in the night and after investigating the patient informed the complainant that due to the over dose of anaesthesia the heart of the patient is not functioning. The opposite party No.01 advised the complainant to consult the other doctor of Kanpur Medical Centre and thereafter the complainant and opposite party No.01 Dr A K Srivastava took the patient to Kanpur Medical Centre but the opposite party No.01 Dr. A K Srivastava without consulting the other doctor himself started the treatment there and declared the patient dead at 6.00 a.m. on 15-11-2000.
It has beencontended by the complainant in his complaint that Rs.35,000/- has been charged by the opposite party No.01 in the treatment of the patient and he also alleged that his son died due to the negligence of the opposite parties and also due to the over dose of anaesthesia administered by the opposite party to the patient.
The opposite party No.01 Dr. A K Srivastava has contested the case before the learned District Consumer Commission and filed his written statement. The opposite party No.01 has denied all the allegations made :4: in the complaint. It has been stated that the complaint has been filed with false accusations. The opposite party No.01 being the specialist in ENT (Surgeon) openly very clearly narrated all the aspects of the medicinal treatment as well as the operative steps to be taken in the case of requirement of operation. It has been stated in the written statement that the opposite party No.3 is a full fledgedAnesthesiologist and has full command over his work and there was no occasion for him to consult for administering the drugs for anesthesia. Further Anesthesiologist was also being recommended by the deceased Manoj Kumar Pandey himself, who at the time of admission in the Kulwanti Hospital at the first checkup made by the opposite party No.1, requested for calling the opposite party No.3 as Anesthesiologist in the surgery of the deceased. The assertions of the complainant that there has been some mistake or over drugging of the medicines of anesthesia are totally false, baseless and absurd.
It has been stated in the written statement that it is false to allege on the part of the complainant that the patient after the operation never came into senses and his condition became serious around 12.00 in the night, and the opposite party no.1 was telephoned twice and then only he came at 2.00 in the night to the nursing home and on examination he narrated that on account of excess drugging of medicines of anesthesia, the heart of the deceased is not working. The opposite party No.01 further denied that after referring the patient to the Kanpur Medical Centre, the opposite party himself, instead of getting the treatment done by the experts, kept on doing the medical treatment and on account the patient died at 6 O'clock in the morning on 15-11-2000.These assertions of the complainant are wholly misconceived, false and concocted story.
It has also been stated in the written statement that at the time of shifting the patient from the operation theatre his basic vital parameters were within normal limits and have been constantly kept under vigilant monitoring which were showing the signs of recovery in the patient. It has been denied that the opposite party ever imparted any medical treatment in regard to the Cardio Vascular Disease which was traced and for the treatment of which the patient was referred to the Kanpur Medical Centre for his treatment. In fact, at the Kanpur Medical Centre, the patient was handled by the experts of Intensive Care Unit who imparted all the clinical treatment in regard to the cardiac diseases through which the patient was :5: under going and that the proper treatment has been given to patient and there is no deficiency in service.
In written statement it has been stated by the opposite party No.01 that the Bed Head Ticket which contains each and every record of the patient beyond doubt establishes that no imperfect or negligent services were rendered by the opposite party No.01 or any of the opposite parties in and after conducting the operation of the deceased, rather all precautions have been taken and every medical care was provided to the patient as per the norms of the medical science and the post operative precautions were taken and completed by the entire nursing and medical staff of the hospital. The complainant is not entitled for any relief claimed and the complaint of the complainant, being not tenable under law, deserved to be dismissed with special cost to the opposite parties.
The opposite party No.03 Dr.A N Shukla has also contested the case before the learned District Consumer Commission and filed his written statement. The opposite party No.03 has denied the allegations made by the complainant in the complaint. It has been stated that the complaint has been filed with false allegation.It has been stated in the written statement that it is false to allege on the part of the complainant that the patient after the operation never came into senses and his condition became serious around 12.00 in the night and it is also denied that opposite party No.01 ever narrated that on account of excess drugging of medicines of anesthesia, the heart of the deceased is not working.
It has been further stated in the written statement by the opposite party No.03 that the duty Doctors of the Kulwanti Hospital and the Nurses who were taking care of the patient and were providing essentialities of nursing on hourly basis took blood pressure and pulse rate of the patient and till 11.20 P.M the patient was normal and there were no signs of any irregularity or unsatisfactory recovery. The patient did not gained consciousness till 12.00 in the night is wholly a scandalous version and has no truth in it. The patient at the Kanpur Medical Centre was handled by the experts of Intensive Care Unit who imparted all the clinical treatment in regard to the cardiac diseases through which the patient was under going.
It has been further stated in the written statement that no :6: negligence has been caused by the opposite party no.3 in discharge of his duties. It is false to assert on the part of the complainant that the medicines for anesthesia were administered twice to the dose which is basically required and on account of which the patient did not gain the consciousness. The allegations are wholly frivolous and misconceived and have no bearing at all.
It has been stated in the written statement that The Bed Head Ticket which contains each and every record of the patient beyond doubt establishes that no imperfect or negligent services were rendered by the opposite party No.01 or any of the opposite parties after conducting the operation of the deceased, rather all precautions have been taken and every medical care was provided to the patient as per the norms of the medical science and the post operative precautions were taken and completed by the entire nursing and medical staff of the hospital. The complainant is not entitled for any relief claimed and the complaint of the complainant, being not tenable under law, deserved to be dismissed with special cost to the opposite parties.
After having considered the pleadings of parties as well as materials on record the District Consumer Commission is of the view that the opposite parties No. 01 and 03 have committed deficiency in service in providing treatment to the patient son of complainant and has passed order accordingly as mentioned above.
It is argued by learned Counsel for the appellant Dr. A K Srivastava that the present case relates to surgery of Tympanic Membrane containing 2 holes in the ear which were leaking for over 10 years due to which patient's family physician Dr. Rajesh Verma of Shuklaganj referred the case to the appellant/opposite party No.01. On 04-11-2000 the patient's visited appellant's clinic and was through examined and prescribed medicines besides advice for X Ray, Blood Report, Blood Sugar and Urine Test. On 13-11-2000 all the tests reports were found normal and patient was found fit for Tympanoplasty. Accordingly the patient was instructed to seek admission at Kulwanti Hospital and Research Centre, Kanpur and 14-11-2000 was fixed for surgery. At 8.45 a.m. the patient was admitted at Kulwanti Hospital and by 10 a.m. preoperative formalities were completed. Dr. A N Shukla, Anesthia expert on the recommendation of patient himself was :7: informed to come at 3 p.m.. At 3 p.m. the appellant reached Kulwanti Hospital for conducting surgery. At 3.30 p.m. on14-11-2000 operation started and was successfully completed by 4.30 p.m. During Tympanoplasty no abnormality was found or detected. At 4.45 p.m. the patient started responding to oral commands and therefore, shifted to the ward and attendants at 4.45 p.m. instructed not to give anything orally for four hours. At 9 p.m. the appellants again visited Kulwanti Hospital and all parameters were found normal. As the patient was operated on Ketamine, therefore, patient was given some sedatives to avoid hallucination by the anaesthetist. Pulse Rate, B.P. and respiratory level all was normal. At 11.30 p.m. the appellant was informed telephonically by the Nursing Staff of hospital that patient is suddenly becoming restless. Appellant immediately reached within 10-15 minutes and while on way to hospital Dr. A N. Shukla was also intimated. Both the doctors immediately reached and examined the patient who was found sweating with thread pulse, irrecordable B.P. and high respiratory rate. Both the doctors tried to restore the patient by artificial respiration and revive him externally supplemented by life saving drugs and both the doctors vigorously tried to maintain the patient but trouble in breathing persisted. Ventilator was found most imperative at that time, therefore, patient was advised to be immediately shifted to Kanpur Medical Centre after establishing contact on telephone as ventilator was only available at KMC at that crucial moment. Para Medical team of experts, doctors and nursing staff of Kanpur Medical Centre immediately visited Kulwanti Hospital to take the patient on their Ambulance.
At 12.40 a.m. on 15-11-2000 the patient has been shown in association with the nursing staff and doctors of Kulwanti Hospital. Although, paramedical team of Kanpur Medical Centre visited with the ambulance at about 2 a.m. on 15-11-2000 and patient was immediately shifted to Intensive Care Unit of Kanpur Medical Centre where the patient reached within 10-15 minutes but till the time the patient was in Kulwanti both the doctors and nursing staff left no life saving measure to bring the patient to normalcy. The appellant remained with the patient till 2.30 a.m. by which time best possible treatment had started.
:8:It has been further contended by the learned Counsel for the appellant that the patient before and after the surgery was taken care of with full dedication, sincerity and honesty and the medical negligence as alleged both in the complaint and in the legal notice is ruled out and eclipsed by the documents of Kanpur Medical Centre which boldly confirm the fact that the patient had died because of cardiac problem which was not disclosed either by the patient or by the attendants at any stage.
It has been contended by the learned Counsel for the appellant/opposite party No.01 Dr. A K Srivastava that there is no confirmatory evidence signifying that there was any medical negligence or that the patient was administered any excessive dose of anesthesia with which the appellant has no concern. Dr. A N Shukla, opposite party No.03 was called at the behest of the deceased himself and appellant had nothing to do with it. This case is not even remotely connected with any medical negligence and at the most complications of Tympanoplasty may lead to either facial paralysis or complete or partial deafness. Death in any case cannot be the result of such minor surgery. In the entire complaint not even a whisper against the appellant/opposite party No.01 has been made and the entire pleadings and allegations have been made against Dr. A N Shukla, opposite party No.03.
It has been argued by the learned Counsel for the appellant Dr. A K Srivastava that basic parameters for ear surgery were meticulously applied, patient was regularly monitored before and after the surgery and he was responding well and recovery from the effect of Ketamine was normal besides the fact that pulse rate, B.P. and temperature were also normal and patient was also advised to remain empty stomach till 9 p.m. followed by liquid diet thereafter. Constant monitoring of the patient was being observed and the allegation that the patient did not gain consciousness is scandalous.
It is contended by the learned Counsel for the appellant/opposite party No.01 that there is no nexus whatsoever between the cause of death and the treatment administered to the deceased. If the nexus between the procedure performed and the case of death is absent, then :9: the doctor cannot be held guilty of medical negligence or deficiency in service. The death of deceased occurred at Kanpur Medical Centre and not under the care and supervision of the appellant at Kulwanti Hospital. The complainant has filed to bring on record any medical evidence to suggest negligence on art of the surgeon.
It has been further contended by the learned Counsel for the appellant that the District Consumer Commission has failed to identify even a single instance of medical negligence on part of the operating doctor which could be attributable to the deterioration of health of the deceased.
It is contended by learned Counsel for the appellants that the impugned judgment and order passed by District Consumer Commission is against law as well as evidence on record. There is no deficiency or negligence in treatment of son of complainant on the part of appellant/opposite party No.01. The impugned judgment is entirely speculative in nature and bad in the eyes of law. The impugned judgment is also in direct conflict with the dictum of the Hon'ble Supreme Court as to who the findings are to be arrived at by the concerned court in cases of medical negligence. It is established beyond reasonable doubt that impugned judgment cannot be sustained in the eyes of law and deserves to be set aside.
It is argued by learned Counsel for the appellant/opposite party No.3 Dr.A N Shukla that he has discharged his duty of reasonable care and skill and thus there is no question of any medical negligence in view of the settled legal position.
The appellant as an Anesthetist used the safest drug of choice in proper dosage and there being no question of any excess dosage as alleged by the complainant. The complainant failed to discharge his burden on this point. No evidence regarding the anaesthetic drugs i.e. requisition slip of the drug used, were ever submitted by the complainant in the learned District Consumer Commission. The findings recorded by the learned District Consumer Commission are based solely on presumptions and assumptions and not on the basis of any cogent evidence. It is settled law that outcome of treatment cannot be made the basis of finding of negligence against a doctor. Inherent :10: risk in treatment including in the case of anesthetic administration is a well know concept in medical negligence jurisprudence and which is a vital fact to be taken into account by a court.
It has been further contended by the learned Counsel for the appellant/opposite party No.03 Dr.A N Shukla that the appellant is a highly experienced and well qualified doctor. There was no question of any excess drugging and that the patient post operative responded well to all the commands and the basic vital parameters were within normal limits. All these facts are clinching evidences in itself that the patient revived well post surgery and the post anesthesia notwithstanding the unfortunate and subsequent complication. The patient had a pre-anesthetic check up on 14-11-2000 with no history of any chronic systemic disease/no positive findings on clinical examination and systemic examination. No previous exposure of any surgery/anesthesia known drug allergy. The anesthesia was administered to the patient as per the established protocols prevailing at the time of surgery and all possible care and caution had been exercised by the appellant in ensuring that only the requisite dose was administered and that the body vital remain normal during the course of surgery. No overdose of anaesthetic drug took place and only the bare minimum requisite dosage was administered to the deceased. The anaesthetic effect of drug Ketamine lasts for 10-15 minutes after each dose is also well described in standard medical literature (miller's textbook of anaesthesia pg 261 2ndpara left side 5-10 min as per product insert of drug Ketamine in subheading dose and administration). The use of Ketamine being a very safest drug has also been acknowledged by 'American Academy of Emergency Medicine', American College of Emergency Physicians, 'American Medical Association', Massachusetts Medical Society and 'Society of Academic Emergency Medicine. It is established beyond reasonable doubt that there is no negligence which can be attributed to the appellant in administration of Anaesthesia to the deceased.
It has been contended by the learned Counsel for the appellant that it is well settled principle of law that 'if the doctor has duly discharged his duty of reasonable care and skill, while treating the patient and patient is still does not survive or suffers a permanent disability no findings of negligence can be recorded against the doctor'.
:11:Similarly in treatment of such a kind inherent risks are always involved and which under no circumstances can be attributed towards any purported negligence on part of a treating doctor. This fact has been completely ignored by the learned District Consumer Commission and which goes to the root of the case.
It is argued by the learned Counsel for the appellant that once the deceased had admitted himself under the care of the appellant, a thorough medical checkup the deceased was undertaken by the medical staff and upon conclusion of the same, no anomalities of any nature whatsoever were noticed in any of the vital parameters of the deceased in his checkup results. Neither the deceased nor any of his family members had apprised the appellant or any of the concerned medical staff about any underlying cardiac or respiratory issues plaguing the deceased. All the possible due care and caution was exercised by the appellant in undertaking his duty to treat the deceased stands established beyond all reasonable doubts. There is no co-relation between the procedure performed by the appellant the subsequent cardiac issues which arose later and resulted in the death of the deceased. There needs to be a direct nexus between the procedure performed and the cause of death in order to bring home the charge of medical negligence against the accused doctor. If the nexus between the procedure performed and the case of death is absent, then the doctor cannot be held guilty of medical negligence or deficiency in service. It is established beyond reasonable doubt that there is no nexus whatsoever between the cause of death and the treatment administered to the deceased.
It is further contended by the learned Counsel for the appellant/opposite party No.03 that the death of the deceased occurred at Kanpur Medical Centre and not under the care and supervision of the appellant at Kulwanti Hospital. The police in conducting due and proper investigation have also recorded the statements of the attending physicians under Section 161 CrPC wherein they have categorically stated that the deceased had been under their care and supervision and was being treated for cardiac related ailments. It is established beyond reasonable doubt that the death of the deceased did not occur under the :12: care and supervision of the appellant. It is the duty of the complainant to bring on record the evidence to substantiate his allegations of negligence or deficiency in service. The complainant has failed to bring on record any medical evidence to suggest negligence on part of the surgeon.
It is submitted by the learned Counsel for the appellant that a bare perusal of the impugned judgment clearly indicates that the same is entirely speculative in its findings. The learned District Consumer Commission has failed to describe any reason whatsoever, which is sustainable in the eyes of law, in coming to the conclusion that the appellant had been guilty of medical negligence. In fact the entire impugned judgment is based solely on surmises and conjectures and the same is devoid of any merit and bad in law.
It is contended by learned Counsel for the respondent/complainant that the impugned judgment and order passed by District Consumer Forum is correct. The District Consumer Forum has examined the evidence on record properly and the conclusion drawn by it is correct.
It is argued by learned Counsel for the respondent/complainant that after the operation the patient never came into senses and his condition became serious around 12.00 in the night, and the opposite party No.01 Dr.A K Srivastava informed that the heart of the patient is not working and the ventilator is required. The patient has been shifted to Kanpur Medical Centre where the appellant Dr. A K Srivastava treated the patient for Cardio Vascular Ailment.
We are not convinced with the argument advanced by the learned Counsel for the respondent/complainant that the appellant Dr. A K Srivastava had treated the patient at Kanpur Medical Centre. Learned Counsel for the respondent/complainant has failed to produce any documentary evidence to substantiate that the appellant Dr. A K Srivastavba had treated the patient at Kanpur Medical Centre for Cardio Vascular Ailment.
It has been argued by the learned Counsel for the respondent/complainant that no medical examination has been conducted by the appellant of the patient before conducting the surgery :13: of ear. The surgery conducted by the appellant without examination the patient is the deficiency in service on the part of the appellant.
We are not convinced with this argument of learned Counsel for the respondent/complainant. On 04-11-2000 the respondent visited the appellant's clinic and was thoroughly examined and prescribed medicines besides advice for X Ray, Blood Report, Blood Sugar and Urine Test. On 13-11-2000 the patient again visited with all tests report which were found normal and patient was found fit for Tympanoplasty. Accordingly the patient was instructed to seek admission at Kulwanti Hospital and Research Centre, Kanpur and 14-11-2000 was fixed for surgery and the surgery of conducted on 14-11-2000. There is no deficiency in service on the part of the appellant Dr. A K Srivastava.
It is further contended by learned Counsel for the respondent/complainant that the patient died due to over dose of medicine of anaesthesia administered by the opposite party Dr. A N Shukla.
We are not convinced with this argument advanced by the learned Counsel for the respondent/complainant. Learned Counsel for the respondent/complainant has failed to produce any evidence that the opposite party has wrongly administered the medicine of anaesthesia and also administered over dose of medicine of anaesthesia on the patient.
It is now to be seen as to whether there was any deficiency in service or medical negligence on the part of Appellant/Opposite Party No.1 Dr. A K Srivastava and Appellant/Opposite Party No.3 Dr. S N Shukla or not? On this point the complainant has repeatedly alleged in the complaint that the patient died out of heavy dose of anaesthesia, but these are mere allegations against the doctor as neither any reason has been given by the complainant for assuming this fact nor any evidence has been tendered nor any medical literature has been submitted to support his contention.
The term "Deficiency" has been defined in Section 2(1)(g) of the Consumer Protection Act, 1986. It means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for :14: the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. Admittedly, there cannot be any medical negligence, if doctors perform their duties and exercise ordinary degree of professional skill and competence. A mere deviation from normal professional practice is not necessarily on evidence of negligence as held in Kusum Sharma and others V/s Batra Hospital and Medical Research Centre and others(I(2010) CPJ 29(SC). A doctor can be held guilty of medical negligence only where his or her conduct falls short below the standard of a reasonably competent doctor in the concerned field as held in PuskarDutta V/s Christian Medical College and Hospital, Ludhiana and others, ( I(2010) CPJ I(NC). It may be observed here that the Hon'ble Apex Court has been pleased to lay down broad principles under which medical negligence can be evaluated as a tort under the law.
It is well settled legal position in medical negligence law that only expectation from a treating doctor is that whether he has discharged his duty of reasonable care and skill and treated the patient as per standard medical protocol and thereafter irrespective of the consequence of such treatments the courts cannot hold the doctor guilty of any medical negligence solely on the basis of the outcome of such a treatment. Sudden Cardio-respiratory Arrest is a known medical complication and Cardiovascular disease is a well known cause of death as per Medical Literature & Science. In this conditions no negligence can be attributed on the part of the opposite parties Doctors, unless certain practice or procedure by the doctor is proved by the complainant which gives rise to an interpretation that the doctor was negligent in treating the patient. This has been held by the Honourable Supreme Court in case Devarakonda Surya Shesh Mani and ors. vs Care Hospital, Institute of Medical Sciences and ors. reported in IV(2022) CPJ page 7 that the mere allegations of medical negligence are not sufficient but the complainant should prove it by positive evidence which leads to conclusion that the doctor failed in his duty towards the patient in a case of medical negligence.
2. Unless the appellants are able to establish before this Court any specific course of conduct suggesting a lack of due medical attention and :15: care, it would not be possible for the Court to second-guess the medical judgment of the doctors on the line of medical treatment which wasadministered to the spouse of the first appellant. In the absence of any such material disclosing medical negligence, we find no justification to form a view at variance with the view which was taken by the NCDRC. Every death in an institutionalized environment of a hospital does not necessarily amount to medical negligence on a hypothetical assumption of lack of due medical care.
Relying upon the aforesaid judgement of the Honourable Apex Court we find that the complaint has not given ample evidence from which it may be concluded that the death of the patient was due to negligence of the opposite parties and also neither any expert report by any doctor nor any medical literature has been produced by the complainant which shows that the opposite parties were negligent to perform their duties or any treatment.
Before coming to a conclusion it is necessary to mention here that the skill of a medical practitioner 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. The honourable Apex Court and honourable NCDRC has advised that the Courts should be slow in attributing negligence on part of a doctor, if he has performed his duties to be best of his ability and with due care and caution. The negligence must be established and not presumed. A bona-fide mistake is excusable, but a mistake which would tantamount to negligence cannot be pardoned. If it is an error that such a man, acting with ordinary care might have made, then it is not negligence. Balom's test, which is recognised in various pronouncements of Honourable Supreme Court and Honourable NCDRC makes it clear that the medical practitioner must do his task with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. However, gross medical mistake will always result in finding of negligence and in some situations principle of Res ipsa loquitur can be applied. In Bolam v. Friern Hospital Management :16: Committee, (1957) 1 WLR 582. It was to the effect that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
In the case of Martin F. D'Souza V/s Mohd.Ishafq reported in 1(2009) CPJ 32(SC) the Hon'ble Supreme Court of India in para 117 has held that:-
"Medical practitioner not liable for negligence simply because things went wrong from mischance/misadventure through error of judgment and the Medical practitioner would be liable only where his conduct fell below that of standards of reasonably competent practitioner in his field and simply because patient not favourable responded to the treatment given by doctor or surgery failed, doctor cannot be held straightaway liable for medical negligence by applying doctrine of res ipsa loquitur.
Further in the case of Jacob Methew V/s State of Punjab and another reported in III (2005) CPJ 9 (SC) the Hon'ble Supreme Court realizing that doctors have to be protected from frivolous complaints of medical negligence, relying upon, in para 49 of its judgment laid down certain rules :-
49.(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
In the case of Ms. Ins. Malhotra V/s Dr. A. Kriplani and others (2009) 4 SCC 705 the Hon'ble Apex Court has laid down principle for assessing :17: negligence of a doctor. Relevant part of the judgment is extracted below:-
"Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed."
In the case of Kusum Sharma and others V/s Batra Hospital & Medical Research Centre and others (2010) 3 SCC 480 wherein Hon'ble Apex Court has considered the issue of medical negligence and has laid down following principles.
"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 case is what the law requires.
(iv) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
(v) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not :18: 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 providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.
Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
(vii) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
(viii) It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
(ix) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
(x) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
(xi) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professional."
In the case of V. KishanRao V/s Nikhil Super Speciality Hospital, III(2010) CPJ 1 (SC) = (2010) 5 SCC 513Hon'ble Apex Court has held that :-
:19:47. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
In the case of Dr. Monica Singla and others V/s TejBhanTaneja and others reported in I (2016) CPJ 588 (NC) the Hon'ble National Commission has also considered the principle of res ipsa loquitur and has held that there is two following step process to establish res ipsa loquitur -
(1)whether the accident is the kind that would usually be caused by negligence?
(2)Whether or not the defendant had exclusive control over the instrumentality that caused the accident?
In the instant case we do not find any concrete evidence available on record from which we can come to a conclusion that any medical negligence has been committed by the opposite parties while treating the patient in the hospital.
Having heard the learned Counsel for the parties and perusing the materials available on record we are of the considered opinion that no negligence has been committed by the appellants in the treatment of the patient. Whatever the treatment was provided to the patient was as per the line of treatment prescribed under the medical norms. We find force in the argument of learned Counsel for the appellants. The District Consumer Commission has wrongly jumped into a conclusion that the appellants have committed medical negligence in treatment of the patient while on the other hand the documentary evidence produced by the appellant shows that no medical negligence has been committed by the doctors.
In view of discussions made above, after having gone through pleadings of the parties as well as evidence on record, we are of the view that the District Consumer Commission has wrongly held that the appellants have committed medical negligence in the treatment of the patient and have also committed deficiency in service. The :20: compensation awarded by District Consumer Forum is unjust and is liable to be quashed.
Considering all facts and circumstances of the case we are of the view that there is sufficient ground for interference in the impugned judgment and order passed by District Consumer Commission and is liable to be quashed and the complaint is liable to be dismissed. The appeals have force and are liable to be allowed.
ORDER Appeal No. 813 of 2006 filed by Dr. A K Srivastava and Appeal No. 832 of 2006 filed by Dr. A N Shukla are allowed. Impugned judgment and order passed by District Consumer Commission is set aside and complaint filed by respondent/complainant is dismissed.
Parties shall bear their own cost.
The amount deposited if any by both the appellants under Section-15 of the Consumer Protection Act 1986 in these appeals shall be refunded to the appellant alongwith interest accrued, if any, in accordance with law.
Let copy of this order be made available to the parties within 15 days positively as per rules.
This judgment shall be placed on the record of Appeal No. 813 of 2006 with its copy to be laid on the record of other Appeal No. 832 of 2006.
( JUSTICE ASHOK KUMAR ) ( VIKAS SAXENA ) PRESIDENT MEMBER pnt [HON'ABLE MR. JUSTICE PRESIDENT] PRESIDENT [HON'BLE MR. JUSTICE ASHOK KUMAR] PRESIDENT [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER