State Consumer Disputes Redressal Commission
Miss. Sunanda G. Barve vs Dr. Jayant S. Barve on 21 December, 2018
CC/00/201
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/00/201
Miss Sunanda Gangadhar Barve,
R/at - Waghripada, Gundavli Gaonthan,
Azad Road, Andheri (East),
Mumbai - 400 069. ...........Complainant
Versus
1. Dr.Jayant S. Barve
Owner of Jewel Nursing Home
& Polyclinic, at 89, N.S. Road,
Road No.1, Near Cooper Hospital,
J.V.P.D. Scheme, Vile Parle (West),
Mumbai.
2. M/s. Jewel Nursing Home & Polyclinic,
Premises at - 89, N.S. Road, Road No.1,
Near Cooper Hospital, J.V.P.D. Scheme,
Vile Parle (West), Mumbai. ............Opponent(s)
BEFORE:
P.B.Joshi, Presiding Judicial Member
Dr.S.K.Kakade, Member
For the
Complainant: Complainant present in person.
For the Opponents: Adv.Shri.Y.C. Naidu
ORDER
Per Dr.S.K.Kakade, Hon'ble Member
1. This is a case of alleged medical negligence. Complainant is Ms.SunandaGangadhar Barve, by occupation legal professional, filed this 1 CC/00/201 complaint against the opposite parties, Dr. Jayant S. Barve and M/s Jewel Nursing Home located at Vile Parle, Mumbai. The complainant along with her two sisters had taken their father, since deceased, on 10thApril 1998 to the opposite party no. 1 in his hospital which is opposite Party no. 2. The said patient, father of the complainant was admitted in opposite party no. 2 hospital and received medical treatment from the opposite party no. 1, till 19thApril 1998, when the complainant took her father to Jaslok hospital for further medical treatment. The complainant's father was admitted in ICCU of the Jaslok Hospital from that day to 30thApril 1998 on which day patient expired in the hospital. Aggrieved by the treatment given by the opposite party no. 1 to the complainant's father, she filed consumer complaint on 2ndMay 2000 at the State Consumer Disputes Redressal Commission Maharashtra, Mumbai;alleging medical negligence and claimed compensation totally up to Rs. 8, 80, 000/- under various headings.
2. Brief facts of this case are as follows:
The complainant Ms. Sunanda along with her two sisters Bhagyashree and Leela had taken their 73 years old father shri.Gangadhar Barve, deceased, to the opposite party no. 1 in his Hospital, Jewel Nursing Home and Polyclinic of Vile Parle, West Mumbai, on 10th April 1998 in the evening at 7.30 pm for complaints of constipation and not taking proper diet. Whilethey were waiting in the OPD queue, her father was taken to the ward by the staff of the hospital andOP no.1 visited the patient. Hegave the instructions to admit as well as send investigations. After completion of procedure of admission the treatment was started; intravenous fluids were given and enema was given for constipation. On the very next day on 11thof April 1998, CT scan of brain was advised by OP no. 1 and the patient was sent for scan to PH Medical Centre. The CT scan reported that there was moderate degree of hydrocephalus. Based on 2 CC/00/201 the reports of the investigations,No.1 advised therapeutic lumbar puncture and removed 20 ml of CSF (Cerebrospinal Fluid) on 15thof April 1998. Further the condition of the patient deteriorated. Foley's catheterization was done for the patient and also Physiotherapy was started. As the condition of the patient further deteriorated, complainants decide to take him to Jaslok hospital which is tertiary care hospital.The deceased patient was shifted to Jaslok hospital on 19thApril 1998,he was admitted in ICCU under Dr. Jayant Barve, OP 1. At Jaslok hospital haemodialysis was done as patient suffered from kidney failure. Further with treatment in ICU at Jaslok hospital, the health of complainant's further deteriorated and he died on 30th April 1998. The complainants have filed this complaint alleging medical negligence in the treatment against Dr.Jayant Barve and his hospital Jewel Nursing Home.
3. The opposite parties (OPs) opposed the complaint by filing written version. The OPs submitted that this complaint involved exceptionally complicated issues of factual expert medical and legal nature. That a satisfactory adjudication of such complicated issues raised in this complaint cannot and ought not to be conducted or decided in summary and speedy proceedings under the provisions of the consumer protection act 1986. The opposite parties also further submitted in the written version that the complaint is based totally on presumption and conjectures drawn by the complainant and not based on any cogent and valid documents or opinion. Also complainant have not specifically alleged any specific omission or commission of any act by the opposite party no. 1 while attending the patient amounting to deficiency of service or negligence in duty. And so complaint is not maintainable in law and should be dismissed with costs.
3CC/00/201
4. Considering the submissions made before us, considering record and scope of the complaint, following points arise for our determination and our findings thereon are noted against them for the reasons given below:
Sr.No. Point Findings
1. Whether the complainant proves the deficiency in No
service and medical negligence by the
Opponents?
2. Whether the complainant is entitled for No
compensation?
3. What Order? As per the
final order
REASONS:
5. As to POINT No.1 Medical Negligence/ Deficiency in Service The complainant advocate Sunanda Barve argued the matter personally. Thecomplainant submitted that her father,age 73 years was taken to opposite party no. 1- Dr.Jayant Barve for the complaints of loss of appetite, constipation and per rectal bleeding. Opposite party no. 1 on 10th April 1998 at 7:30 p.m. examined and admitted her father in the hospital ward. Based on the CT scan done on 11th April 1998 that reported as hydrocephalus, opposite party no. 1 performed lumbar puncture to remove few ml of CSF (Cerebrospinal fluid), for which no consent was taken. Learned complainant further submitted that, from the day of lumbar puncture to 19th of April 1998, the health condition of her father deteriorated and since opposite Party no. 2 Jewel Nursing Home and Polyclinic did not have ventilator, she decided to shift her father from opposite party no.2 hospital to a tertiary care hospital, Jaslok Hospital of Mumbai. She further submitted that even at Jaslok hospital in spite of receiving intensive Care in ICCU, her father didn't respond to the treatment 4 CC/00/201 and died on 30th April 1998. The complainant alleged that the lumbar puncture performed by no. 1 at opposite party no.2 hospital was responsible for further deterioration the health condition of her father.
6. The complainant submitted that the opposite party no. 1 while examining her father took history of allergy, side effects, history of any other illnesses like tuberculosis, diabetes or any chronic illness and found that there was no abnormal history.The complainant alleged that while getting CT scan of brain done at Santa Cruz, no junior doctor was sent to accompany the patient in ambulance to take care during transport. She further submitted that without taking consent, opposite party no. 1 performed lumbar puncture to drain the cerebrospinal fluid, which was not an emergency procedure. Also the urethral catheterization for her father was done by General Nurse and not by qualified doctor. She further alleged that even the enema for constipation was not given by qualified nurse nor it was given in front of a doctor.
7. The complainant further submitted that her father received physiotherapy in opposite party no.2 hospital. On 18thApril 1998 the Physiotherapy was given to her fatherwithout considering his advanced age and physical condition. Hence the patient felt exertion.This contributed in deterioration of patient's general condition.
8. The complainant also submitted that opposite party no.1 is a Consulting Physician, MD in Medicine, Gastroenterologist, Therapeutic GI Endoscopist and not an expert skilled for performing Lumbar puncture. At Jaslok hospital also her father was admitted under the same doctor opposite party no, 1 who is attached to that hospital. He didn't issue 5 CC/00/201 immediate instructions for performing haemodialysis and hence this delay cost more harm to the patient and died because of negligence.
9. Learned Advocate for the opposite party invited our attention to the synopsis submitted by the complainant which is on page 471 of the complaint compilation. As per this synopsis, there are 7 charges against the opposite party no. 1, the reply - and explanation to all the charges are submitted in the brief notes of argument of opposite party no. 1 and 2.
10. Learned Advocate for the opposite party submitted that the patient was an old patient,age 73 years, suffering from host of comorbid chronic medical conditions; he was bedridden for 2 years and suffering from hypertension (high blood pressure) but without medication since around 1 year. This is recorded by the OP no.1 while taking history, on page no.16 of compilation and part of indoor case record. The opposite party no. 1 examined the patient by taking the patient to ward of opposite party no.2 hospital, advised investigations based on examination findings and started the medical line of treatment. The radiological investigations were decided to be carried out next day at P.H. Medical Centre, Santacruz... Learned advocate further submitted that when the patient was sentfor CT scan at around 2:30 p.m. to P.H.Medical Centre, he was transported in an ambulance along with competent doctor and nurse in ambulance besides patient's relatives.
11. Learned advocate for opposite party submitted that based on the findings of CT Scan of brain that disclosed the impression as "a moderate degree of hydrocephalus is noted with changes of diffuse cerebral atrophy", opposite party no. 1 discussed and informed the relatives of the patient and the patient was referred to experienced Neurosurgeon Dr.Harshad Parekh who immediately responded and after due examination 6 CC/00/201 of the patient finally opined that "the patient needs drainage L.P.( Lumbar Puncture) and if with that he improved then the surgery of V.P.(Ventriculo Peritoneal ) shunt was to be considered. The relatives of the patient after discussion about the pros and cons of the further line of Management consented to the lumbar puncture. This is recorded by Dr. Barve on page 22, indoor case record dated 14th April 1998. Also actual consent for Lumbar Puncture seen on page 15 of the compilation.
12. Learned advocate for opposite parties submitted further that thereafter the procedure was carried out by Dr.Jayant Barve; opposite party no. 1, the same was carried out in major operation theatre with standard precautions after giving test dose ofXylocaine,local anaesthetic drug,and the procedure was performed. As per standard procedure the CSF was collected for the examination in 3 bottles amounting to 2 ML per bottle. As per the advice of the neurosurgeon for therapeutic measure in case of normotensive hydrocephalus there was a need to remove around 20 to 25 ml of the CSF which was done as per the protocol, the patient was monitored during the procedure and was in stable condition without any untoward event and recovered well from the procedure. This can be seen from the notes of Lumbar Puncture procedure by Dr. Barve on page 21 and further condition of the patient is recorded on pages 23, 24, 27, 28 of complaint compilation.
13. Learned advocate for the opposite party submitted that there are seven basic charges against the opposite party doctor as per the complainant. The charges and the explanation to those charges is as follows:-
13.1. The procedure of urethral catheterization was improperly done by the nurse: the said catheterization is usually done by qualified 7 CC/00/201 nurse under strict aseptic conditions, which is scientific method. In the instant case qualified nurse registered with Nursing Council performed catheterization with all aseptic precautions. Regarding the qualification of the nurse certificate and the affidavit of the nurse is on record pages 451, 452 and 453.
13.2. Continuous IV Fluids be given: IV fluids were given as per patient's general condition and were discontinued on April 16 1998.
The IV Fluids support the patient condition and do not cause any deterioration. There is indoor case record; pages 16 to 24 of complaint compilation in which notes from 11th April to 15th April 1998 that also record the condition of patient on 16th April and no mention of IV fluids in treatment.
13.3. Severe walking exercise was given to patient resulting in breathlessness and frothing in the mouth: The qualified physiotherapist, Dr.AtulLondhe gave bedside exercises and gate training. The physiotherapist mentions that it was not possible to give vigorous walking exercises to any patient whose sitting as well as standing balance is poor and is disoriented as well as confused. In the present case the patient was 73 years old man with multiple problems, so only bedside physiotherapy was given to the patient. The physiotherapist Dr. Londhe has produced affidavit pages 449 and 450.
13.4.The patient was not immediately taken for dialysis after admission at Jaslok hospital:
It is after the examination and evaluation by senior nephrologists at Jaslok Hospital Dr. B.V. Gandhi and Dr.Bulchand, dialysis was decided 8 CC/00/201 and initially peritoneal dialysis was done, subsequently haemodialysis was also done. So the expert nephrologists decided about the dialysis of the patient. Document on record pages no.111, 112 are the referral letters given by opposite party no.1 to Jaslok hospital mention admission request and reference to the Nephrologists as well as cardiologist. Also on admission in Jaslok hospital the Registrar in Nephrology has evaluated the patient in detail advised treatment, ref. pages 137, 138. Subsequently on pages 141 consent dated 19th April 1998 for peritoneal dialysis and on page 143,consent dated 21st April 1998 for Haemodialysis seen.
13.5.Enema was given by ward boy named Sanjay and not by the doctor:
As per the qualified nurse Mrs.AlkaNarvekar, the enema is the procedure which is administered by qualified nurses and thus she administered the enema to the patient. Ref. Affidavit of the Nurse Page no.451, 452,453.
13.6. After severe walking exercises, the patient had severe breathlessness and frothing in mouth:
The complainant has not provided in evidence in support of the allegation:
13.7.Complainants were not informed about the gravity of condition of the patient: From time to time the treating doctors opposite party no. 1 and other super specialists like Dr.Parekh informed the relatives about the condition of the patient and the treatment which was being given.
Dr.Parekh mentioned on case record that the relative are unable to 9 CC/00/201 understand the same. Reference of document no.27 dated 15th April 1998 which is part of indoor case record of Jewel Nursing home.
14. Learned advocate for opposite party submitted that the complainant refused the surgery of V.P. shunt on the patient and it was explained by the neurosurgeon regarding the need of operation for patient. It was also informed to the complainant that V.P. shunt was corrective treatment and not curative treatment. In spite of explaining the need for V.P. shunt the complainant refused the surgery. Document reference Page 27 notes of the Neurosurgeon in indoor case record of Jewel Nursing Home.
15. Learned advocate of the opposite party invited our attention to the affidavit in evidence of Dr.Harshad Parekh, (document reference page no.438 of complaint compilation) the Neurosurgeon. Ld. Advocate submitted that the expert doctor, Dr.Harshad Parekh has given the details about the protocol being followed for patients suffering from "normotensive hydrocephalus", which is accepted practice. Standard medical Protocol in such case is:
a. Evaluate the patient by taking history, examination of the patient, investigations including CT scan of brain. b. If CT scan shows normotensive hydrocephalus, L.P. is advised with removal of 2o to 25 ml of CSF on three consecutive days. c. If patient shows improvement with, advise V.P. shunt. d. MRI brain which CSF flow studies can be done as an indicator for improvement after be patient.
Dr Harshad Parekh has also filed medical literature from Harrisons Principles of Internal Medicine 18thedition that give information about normotensive hydrocephalus.10
CC/00/201
16. The text book reference is on page 448 of the compilation (Chapter 371 of Harrison's Principles of Internal Medicine 18th edition), it reads as under:
"The normal pressure hydrocephalus NPH is a relatively uncommon treatable syndrome. The clinical, physiologic and neuroimaging characteristics of NPH must be carefully distinguished from those other dementias associated with gait impairment. Transient improvement in Gait or cognition may follow lumbar puncture with removal of 30 to 50 ml of CSF; but this finding has also not proved to be consistently predictive of post shunt improvement. Perhaps the most reliable strategy is a period of close inpatient evaluation before, during and after lumbar CSF drainage."
17. We have gone through the documents on record - complaint memo, written statement, expert opinions, and written notes of arguments by parties, medical literature and the case laws submitted by both the parties. The exhaustive list of the case laws is as follows:-
18. The Learned advocate and the complainant submitted authorities- Case laws on Medical Negligence, the list of which is as follows:
a. Lakshman Balakrishna Joshi versus Dr. Trimbak Bapu Godbole AIR 1969 SC 128 Duty of Care and Skill b. Indian Medical Association versus V.P. Shantha and others Service, Consumer c. M/s Spring Meadows Hospital and others versus HarjotAhluwalia AIR 1995 SC 18(4) d. Dr. J.J. Merchant and others versus ShrinathChaturvedi SC 2002 Para 37- Complicated question of fact and law competency 11 CC/00/201 e. State of Haryana and others versus Smt. SanthanaAIR 2000 SC 1888 f. Nizam's Institute of Medical Sciences versusPrashant S.Dhanaka and others SC 2009(2) GLH 385 Onus shifts that develops or care- negligence- no consent- Para 17- action for negligence/ battery- Para 29, 30, 40 multiplier method g. SavitaGarg versus Director National Heart Institute (2004) 8 SE C 56 Consent, Onus shift on Hospital/ doctors negligence h. Shri Ramesh Kumar vs. Dr.GulshanKapoor and others SCDRC New Delhi Preliminary Objections rejected i. PoonamVerma versus Ashwin Patel AIR 1996 SC 2111 j. Indu Sharma versus Indraprastha Apollo Hospital and others NCDRC New Delhi 22nd April 2015, Referred to board k. SubhashChandran versus MD Jaipur Golden Hospital, NCDRC New Delhi 25th August 2011 l. Sunflag Hospital versus Raghubir Singh PorwalNCDRC New Delhi 12th September 2012 m. Mangesh R Parikh (minor) versus Dr.Mayur H Mehta, AIR 2011 SC 249 n. Dr SathyM. Pillai, wife of Dr.MadKaran Pillai versus S. Sharma, son of Sekaran and others, NCDRC New Delhi 9th may 2001 o. Michael Rodricks versus Dr. Shantharam and Surve, SCDRC 17th February 2014 p. Amit Datta and others versus Vishakha Hospital, NCDRC New Delhi 16th May 2016, Unethical act 12 CC/00/201 q. CCI chamber CHS Limited process Development Credit Bank Limited IR 2004 SC 184 r. Dr. Mrs SadiyaAtri versus Shashi Sharma s. GanapamRamalingam Reddy versus Apollo Hospital. SCDRC AP November 2002 t. Johnson Thomas vs.Bishop violin medical Centre, NCDRC 12th April 2010, necessary party referred to board u. SmtR.Thanakamma versus Dr. Nair Hospital SCDRC, 29th December 2010 lumbar puncture v. Cayenne Koteswara Rao versus Kasturba Hospital. NCDRC, date 27th November 2006. Anaesthesia no informed consent, not tell Side Effects, complication spinal cord w. P. Narsimha Rao versus Vara Pooja Prakash NCDRC , 1st February 1989 x. Kusum Sharma versus Batra Hospital and Medical research Centre, 10th February 2010 y. Sameera Kohli vs Dr. Prabha Manchanda, SC 16th January 2008 z. Master Rishabh Sharma versus Dr. Ram Sharma and others NCDRC 10th May 2006 aa. Pramod Chand Guruprasad versus Dr. Ashok c Bagadiya. SCDRC 28 November 2008, Para 18, Every anaesthesia has its side effect, duty of OP to prove that fact bb. V. Kishan Rao vs Nikhil Super Speciality Hospital, No expert opinion cc. UttamSarkar and others vs Management of Tura Christian Hospital, date 7th February 2014 dd. Philips Thomas son of Y Thomas versus Dean, Hospital punaa HGR, date 4th February 2013 SCDRC ee. VipinChander Mehta versus Dr. Samantha GAR 13 CC/00/201 ff. Ram BihariLalvs Dr. Jayant Srivastava, MP high court dated 14th December 1984, Appellant operation, no urgency. Not necessary no consent Para 23, 24, no trained Anaesthesiologist gg. V. Krishna Kumar versus State of Tamilnadu and other SSC 2010, for opinion to board hh. Surinder Kaur versus Battle Medical College SCDRC 2nd June 2014 Complainant related to Civil Court order restressed, appointed committee for opinion ii. Bakshi Ortho versus Kulwant Singh SCDRC, complainant can file complaint without expert opinion jj. A Shiva Narayana versus DasariSantoKumari and others SSC 9th January 2013 Para 1, Complaint can be registered without expert opinion kk. Monivs State of Kerala Kerala High Court 4thFebruary 2011, physical fit operatio ll. Uma Devi versus Mrs.Yashoda Hospital NCDRC 2014 mm. All India Institute of Medical Sciences versus my Show SCDRC 28 April 2010
19. The learned Advocate for the opposite parties submitted the following authorities- case laws on medical negligence the list of which is as follows:
a. Malkiat Singh deceased through l r versus Christian Medical College and Hospital and others IV (2007) CPJ 232 b. AK Gupta(DR) and another versus mahipal III (2007) CPJ 303 (NC) c. Dr KunalSaha versus Dr Sukumar Mukherjee and others III (2006) CPJ 142 (NC) 14 CC/00/201 d. PrashanthakumarChakraborty& Ors versus JaharDebnath(Dr.) & ANR I( 2008) CPJ 473 (NC) e. KarunaNidhi and another versus doctor Padma l Ravindran and another TamilnaduSCDRC IV (2005) CPJ 466 f. Kiran Ajith versus Dr. Nirlep Kaur and others Union territory CDRC Chandigarh III (1999) CPJ 208
20. We have gone through these judgments and we rely on relevant and important findings of these case laws related to the medical negligence.
21. The concept of medical negligence is being dealt with settled principles of the law that govern it. Reasonable degree of care and skill means that the degree of care and competence that an "ordinary competent member of the profession who professes to have those skills would exercise in the circumstance in question." The burden of proof is correspondingly greater on the person who alleges negligence against a doctor than a charge of negligence against the driver of motor car.
22. In Kusum Sharma and Ors Vs. Batra Hospital and Research Centre and Ors,AIR 2010 Supreme Court 1050, the principles have been laid down by Hon'ble Supreme Court are as follows:
94. on scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. 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 15 CC/00/201 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 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 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 16 CC/00/201 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 professionals.
23. The liability of a doctor arises not when the patient has suffered any injury, when he is treated in good faith but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. Thus, the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence, once the existence of a duty has been established, the complainant must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the doctor will not be liable. In order to show the breach of duty, the burden on the complainant 17 CC/00/201 would be to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree.
24. The Hon'ble Supreme Court in the landmark case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, has held that with the best skill in the world, things sometimes go wrong in medical treatment or surgical operation. A doctor cannot be blamed to be negligent simply because something goes wrong or someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way. In the landmark judgment of Indian Medical Association vs. V.P.Shantha, the Apex Court has decided that the skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the Complainant to prove that a doctor was negligent in the line of treatment that resulted in the life of the patient. It is for the Complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubts.
25. Learned advocate for the opposite parties, invited our attention to the 3 paras in submitted case law on medical negligence, Ins.Malhotra vs. A.Kriplani& OrsCIVIL APPEAL NO. 1386 OF 2001, decided on 24th March 2009, Hon'ble Supreme Court has elaborated the principles of medical negligence, as follows:
26. "18) A three Judge Bench of this Court in the case of Jacob Mathew v. State of Punjab and Another [(2005) 6 SSC 1] had the occasion to deal with and decide the liability of doctors in a death case arising due to criminal medical negligence for an offence under Section 304-A of the Indian Penal Code, 1860. In the case of professional negligence, it was observed that in the law of negligence, 18 CC/00/201 professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or as skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, the professional may be held liable for negligence on one of 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 19 CC/00/201 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. [Paras 18 and 48(3)] 18.1) In the case of medical negligence, it has been held that the subject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator, i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is 20 CC/00/201 to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.
27. 18.2) 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. The classical statement of law in Bolam's case, (1957) 2 AII ER 118, at p. 121 D- F [set out in Para 19 herein] has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular, and holds good in its applicability in India. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. It is not necessary for every professional to 21 CC/00/201 possess the highest level of expertise in that branch which he practices. Three things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time (that is, the time of the incident) on which it is suggested as should have been used. Thirdly, when it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. [Paras 48 (2), 48 (4), 19 and 24] 18.3) Again, it has been held that indiscriminate prosecution of medical professionals for criminal medical negligence is counter- productive and does no service or good to the society. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason-- whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential 22 CC/00/201 surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society. [See paras 28, 29 and 47] 18.4) In the case of State of Punjab v. Shiv Ram and Others [2005] 7 SCC 1, a three Judge Bench of this Court while dealing with the case of medical negligence by the doctor in conducting sterilisation operations, reiterated and reaffirmed that unless negligence of doctor is established, the primary liability cannot be fastened on the medical practitioner. In paragraph 6 of the judgment it is said: (page no. 7) "Very recently, this Court has dealt with the issues of medical negligence and laid down principles on which the liability of a medical professional is determined generally and in the field of criminal law in particular. Reference may be had to Jacob Mathew v. State of Punjab (2005) 6 SCC 1. The Court has approved the test as laid down in Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582: (1957) 2 AII ER 118 (QBD) popularly known as Bolam's test, in its applicability to India". We feel that the above paras are applicable not only for fastening criminal liability upon doctors but also civil liability.
28. We have gone through the documents and case laws submitted.We are of the opinion that the father of complainant, 73 years old patient was bedridden for 2 years. He was admitted in opposite party Hospital and treated by opposite party no. 1 for his chronic illness. As per the affidavits 23 CC/00/201 submitted on record on behalf of opposite parties, based on investigations advise of V.P. shunt operation was given but the complainant was not ready for the same surgery and refused to go ahead with the advised plan of treatment. It is our observation that the complainant complained about the deficiency in service by the opposite party no.1 in opposite party number to hospital. The complainant has not filed any expert evidence - opinion regarding the medical negligence or deficiency in service and it seems that the complaint is based on complainant's vims. The complainant's perceived negligence in all aspects of the service provided by the qualified physician, opposite party no. 1. Apparently she was not happy with the admission of her ailing father, she complained that the urethral catheterization should have been done by doctor, also the enema given to her father should have been given in presence of doctor, she alleges negligence in lumbar puncture procedure performed by a qualified doctor, she refuses the surgery advised based on CT Scan by a qualified neurosurgeon, she also alleges that at Jaslok Hospital there was delay in admission process as well as delay in dialysis of the patient which she attributes to the doctor, opposite party no. 1, according to her this is also negligence. Finally while calculating the loss and damages, the complainant states that due to the death of her father, there was loss of his monthly pension on which the complainant and her four sisters were depending upon for their livelihood. We are of the opinion that this is a frivolous complaint lodged long ago to harass the doctor who has followed the standard practice of treating such patients. We hereby declare that the complainant has failed to prove her case of medical negligence.Hence we answer the POINT no.1 as NEGATIVE.
29. As to POINT No.2 Entitlement for compensation 24 CC/00/201 Since the complainant has failed to prove the medical negligence and deficiency in service, she is not entitled to get the compensation. As per the noted submissions, documents on record and arguments during final hearing the complaint appear to be frivolous the reasons for which are in Para 28 of this order.This being frivolous complaint, the complainant will pay amount of Rs.10, 000/- to the opposite parties as per the section 26 of the Consumer Protection Act 1986.
Section 26 in the Consumer Protection Act, 1986:
94[26. Dismissal of frivolous or vexatious complaints.--Where a complaint instituted before the District Forum, the State Commission or, as the case may be, the National Commission is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding ten thousand rupees, as may be specified in the order.] Hence we answer the POINT no.2 as NEGATIVE.
30. As to POINT No.3 What Order?
ORDER
1. The complaint is dismissed with costs Rs.25000/- to be paid by the complainant to the opposite parties.
2. Being Frivolous complaint, the complainant is directed to pay Rs.10,000/- to the opposite parties within period of one month from the date of this order failing which interest @ 12 % till realization.
25CC/00/201
3. Free certified copies of the order be furnished to the parties forthwith.
Pronounced Dated 21stDecember 2018 [P.B. Joshi] Presiding Judicial Member [Dr.S.K.Kakade] Member 26