State Consumer Disputes Redressal Commission
Nirmala Gupta vs Combined Medical Institute, Dehradun & ... on 14 March, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
CONSUMER COMPLAINT NO. 04 /2008
Smt. Nirmala Gupta
W/o Sh. M.R. Gupta
R/o 21 Bank Colony, Adhoiwala
Dehradun
.......Complainant
Versus
1. Combined Medical Institute
54, Haridwar Road, Dehradun
2. Dr. Sumita Prabhakar
Combined Medical Institute
54, Haridwar Road, Dehradun
3. Dr. R.K. Jain
Combined Medical Institute
54, Haridwar Road, Dehradun
4. Dr. Harsh Johri
Combined Medical Institute
54, Haridwar Road, Dehradun
5. Dr. S.P. Saxena
Combined Medical Institute
54, Haridwar Road, Dehradun
6. Dr. Mahesh Kuriyal
Combined Medical Institute
54, Haridwar Road, Dehradun
7. The New India Insurance Company
25-A, Rajpur Road, Dehradun
......Opposite Parties
Mr. Alok Pundeer, Learned Counsel for the Complainant
Mr. Nitin Kumar Singhal, Learned Counsel for the Opposite Party Nos. 1, 3, 4, 5 & 6
Mr. J.K. Jain, Learned Counsel for the Opposite Party No. 2
Mr. Suresh Gautam, Learned Counsel for the Opposite Party No. 7
Coram: Mr. C.C. Pant, Member
Mrs. Kusumlata Sharma, Member
Dated: 14/03/2013
2
ORDER
Per: Mr. C.C. Pant, Member:
Smt. Nirmala Gupta W/o Sh. M.R. Gupta, R/o 21, Bank Colony, Adhoiwala, Dehradun (hereinafter to be referred as "Complainant") has filed this consumer complaint No. 04 of 2008 before this Commission on
02.04.2008 under Section 12 read with Section 18 of the Consumer Protection Act, 1986, alleging medical negligence committed by the following in her treatment:-
1. Combined Medical Institute 54, Haridwar Road, Dehradun
2. Dr. Sumita Prabhakar Combined Medical Institute 54, Haridwar Road, Dehradun
3. Dr. R.K. Jain Combined Medical Institute 54, Haridwar Road, Dehradun
4. Dr. Harsh Johri Combined Medical Institute 54, Haridwar Road, Dehradun
5. Dr. S.P. Saxena Combined Medical Institute 54, Haridwar Road, Dehradun
6. Dr. Mahesh Kuriyal Combined Medical Institute 54, Haridwar Road, Dehradun
7. The New India Insurance Company 25-A, Rajpur Road, Dehradun
2. Hereinafter these shall be referred as opposite party Nos. 1, 2, 3, 4, 5, 6 & 7 respectively. The complainant, after narrating her grievances against these opposite parties, has prayed in her consumer complaint that the opposite parties be directed to pay to her:-
a) Rs. 90,000/- towards medical expenses incurred during the treatment at P.G.I. from 10.01.2003 to 16.02.2003.3
b) Rs. 45,000/- towards other expenses at P.G.I..
c) Rs. 30,000/- towards expenses during admission in the hospital of opposite party No. 1.
d) R.s 5,00,000/- towards mental pain and agony suffered by the complainant.
e) Rs. 5,00,000/- towards mental pain and agony suffered by the husband of the complainant.
f) Rs. 5,00,000/- towards mental pain and agony suffered by the children of the complainant.
g) Rs. 50,000/- towards conveyance charges.
h) Rs. 33,000/- towards loss suffered by the complainant on account of salary till filing of the complaint.
i) Rs. 57,000/- towards loss suffered by the husband of the complainant on account of salary.
j) Rs. 5,00,000/- towards additional mental agony of Smt. Nirmala Gupta after April, 2003 till date 27.09.2007.
k) Rs. 1,82,000/- towards additional loss suffered by the complainant on account of salary for 13 months after March, 2003 till 27.09.2007.
l) Rs. 48,000/- towards the charges of the maid servant as attendant for complainant for 16 months.
m) Rs. 20,000/- towards special nutrition diet charges till 27.09.2007.
n) Rs. 1,00,000/- towards additional medical expenses incurred after 20th April till 27.09.2007.
o) Rs. 25,000/- towards transportation charges incurred on account of complainant being taken to P.G.I., Chandigarh, for consultation and regular check-up.
Total - Rs. 27,68,000/-.
3. The facts of the case, as stated by the complainant in her consumer complaint, are that the complainant had some problem in her uterus. She went to the opposite party No. 1 - Combined Medical Institute, Dehradun and consulted opposite party No. 2 - Dr. Smt. Sumita Prabhakar. On her advice, some tests were carried out and surgery was conducted for the removal of the 4 uterus on 04.01.2003 by the opposite party No. 2 in opposite party No. 1 - hospital. It is alleged that the complainant was not given food till 06.01.2003, but after taking food on 06.01.2003, the condition of the complainant deteriorated. The nurse was informed, but no doctor came to see her till the morning of 07.01.2003. The husband of the complainant requested the authorities of the hospital to conduct an E.C.G. of the complainant, but no doctor attended the patient. The nurse of the hospital sent the complainant for E.C.G. The report of the E.C.G. was abnormal. Upon this, the doctor came and made a check-up of the complainant and decided to re-operate the complainant immediately. The operation was started at 10:30 a.m. and lasted upto 03:00 p.m. Then the complainant was shifted to I.C.U. The opposite party No. 3 informed the husband of the complainant that the complainant was having some heart problem and that she was being given medicines for heart problem. The complainant was kept in I.C.U. from 07.01.2003 to 15.01.2003 and was given medicine for the heart problem while the fact was that, as alleged by the complainant, the rectum had got injured during the operation conducted by opposite party No. 2 due to her negligence and the husband of the complainant was kept in dark in this regard. Due to rectal injury, the complainant had developed severe complications and her condition got deteriorated day-by-day. The husband of the complainant could know this fact only when the complainant was shifted to P.G.I., Chandigarh on 16.01.2003. The complainant has alleged that the opposite parties did not tell her husband till 15.01.2003 regarding rectal injury caused to her during operation and had assured him that she was being given best treatment and they had also consulted the doctors of Sir Ganga Ram Hospital, New Delhi in this regard. As stated in the consumer complaint, the complainant was being administered HEPARIN injection and her husband was told that this was the only injection, which can be given for the treatment of his wife and there was no other treatment for such heart problem. It was only when the brother of the complainant's husband came on 15.01.2003 and insisted that she should be shifted to some higher medical institute, the complainant was shifted to P.G.I., Chandigarh on 16.01.2003. The complainant remained there from 16.01.2003 to 17.02.2003 and was discharged on 17.02.2003.
54. The complainant has alleged that by the time she was shifted to P.G.I., Chandigarh, her condition had become so worse that even the doctors of P.G.I. refused to accept the case. Somehow, on her husband's request, they admitted her in the hospital. When the doctors checked-up the complainant, they made the comments (as stated in the consumer complaint) such as "are you" i.e. complainant's husband, "coming from village", "this operation is being done by some Registered Medical Practitioner", "the operating doctor appears to be a butcher who has cut the abdomen of the complainant like this" and so on. The complainant has also alleged that when the doctors of P.G.I., Chandigarh, contacted opposite party No. 2 over telephone, she (i.e. opposite party No. 2) accepted that a small injury had occurred during the operation. As per the consumer complaint, the complainant remained unconscious till 23.01.2003. But, due to the efforts made by the doctors of P.G.I., Chandigarh, she recovered gradually and was discharged on 17.02.2003.
5. In para 28 of the consumer complaint, it has been stated that:-
"28. That future of the complainant has become in dark, since she is not well and she is continuously having temperature and it is not certain whether she will be able to join back her duty or not."
6. The complainant attributes all this to the negligence committed by the opposite parties in her operation and the fact of rectal injury was hidden by them and, instead, the husband of the complainant was told that the complainant had developed some heart problem, for which the best possible treatment (i.e. injection HEPARIN) was being administered on her. Due to this conspiracy of all the opposite parties, the condition of the complainant got worsened and she could be saved only when she was shifted to P.G.I., Chandigarh. For the redressal of these grievances, the complainant has filed this consumer complaint, praying therein for the relief, as stated above.
7. The opposite party Nos. 1, 2, 3, 4, 5 & 6 have filed a joint written statement which is at Paper Nos. 40 to 49. Denying the allegations leveled by 6 the complainant against them, the opposite parties have stated in the written statement that the doctor of Doon Hospital, Dehradun had advised the complainant for surgery on the basis of the test of Pap Smear and this test was not done at the opposite party No. 1- hospital. The opposite parties had carried out routine pre-operative investigations and the complainant was operated by opposite party No. 2. She did not commit any negligence in the operation. The rectal injury is a known complication in case of Hysterectomy. No colostomy was done on 04.01.2003. The operation was done by opposite party No. 2 diligently and cautiously with utmost care. The opposite parties have also stated that the complainant was allowed liquid diet from 05.01.2003 and as the record reveals, she was fine the whole day on 5th - 6th January, 2003. The opposite party No. 2 examined her at regular intervals post operatively. On 6th January, 2003, the complainant started vomiting and decreased hydration. On examination by opposite party No. 2 at 7:15 p.m. and then at 8:45 p.m., she was kept on half-hourly monitoring and the doctor on duty frequently reported opposite party No. 2 about her condition. However, till 7:00 a.m. on 07.01.2003, her condition did not change and it was found that her pulse rate had increased. After examination, opposite party No. 2 opined and explained to the attendants of the complainant that re-exploration has to be performed due to abdominal distension and high pulse rate (with a possibility of intra- peritoneal bleeding). The opposite parties have admitted that re-exploration was done on 07.01.2003, but they have denied the allegation that there was no doctor on call and that the E.C.G. was done on the request of the husband of the complainant. According to the opposite parties, E.C.G. was advised by the doctor on duty after consulting opposite party No. 2 and was done accordingly in her room. It has also been stated that the operation was over by 12:30 p.m., and not by 3:00 p.m., as alleged by the complainant, and the patient- complainant was shifted to ICU at 1:00 p.m., as the pulse rate of the patient was very high and the same was informed to the husband of the complainant. After an examination by Dr. Kuldeep Dutta, M.D., on 07.01.2003, it appeared to be a case of Pulmonary Embolism and Septicemia. Accordingly, treatment was given to the complainant. The husband of the complainant was never told by the opposite party No. 3 that she had some heart problem. The attendants of 7 the complainant were also told by opposite party Nos. 2 & 3 that colostomy was performed during re-exploration by Dr. G.P. Painuly, General Surgeon in the presence of opposite party Nos. 2 & 3. The fact of rectal injury was communicated to the husband of the complainant. Such a complication in such type of operation is a known one and colostomy is the procedure recommended by all standard text books for such cases. Denying the allegation that the fact of rectal injury was hidden by the opposite parties, the written statement says that the problem of rectal injury was managed by doing colostomy and by giving appropriate antibiotics. As colostomy is something which is right on patient's abdomen and can not be hidden, the question of withholding information about colostomy does not arise. The opposite parties have further clarified that the complainant was not given medicines for heart problem, but treatment for Pulmonary Embolism and Septicemia was given. The patient was kept in ICU not because of heart problem, but for the treatment of infection and pulmonary embolism. The injection HEPARIN is given for prevention of blood clotting.
8. The opposite parties have also clarified in their joint written statement that the option of taking the complainant to a higher centre was given by opposite party Nos. 2 & 3, but the attendants of the complainant did not pay any heed to it. The fact of rectal injury was not hidden by the doctor / opposite party No. 2. In support of this contention, the opposite parties have stated that the colostomy was done and dressing was being done 3-4 times / day in front of attendant and the same itself verifies the fact that they knew about the injury of rectum, otherwise how could opposite party No. 2 and Dr. G.P. Painuly justify doing a colostomy for a case of hysterectomy. On 10.01.2003, Dr. G.P. Painuly attached colostomy bag. Thus, the written statement says that the complainant is hiding the true facts with some ulterior motive. The opposite parties have further, explained that a known complication of surgery is not considered negligence. Hysterectomy - the operation of uterus removal has many complications. It is mentioned in all the surgery text books that there is a possibility of injury to structures, which are very close to the uterus such as rectum, bladder and uterters. Complications occur more frequently in 8 complicated cases like those with intestines sticking to uterus due to infection, inflammation or endometriosis (as in complainant's case). The patient was treated with antibiotics, analgesics, I/V fluids, blood transfusion and injection heparin. Colostomy is a temporary procedure and is usually closed in 3-4 months and it leaves no residual permanent disability. Further, the complainant was escorted to P.G.I., Chandigarh, by two doctors of opposite party No. 1 and was admitted there by diligent efforts of doctors of opposite party No. 1. With regard to allegation that the doctors of P.G.I., Chandigarh, made comments that the operating doctor appears to be butcher, the opposite parties have termed it defamatory and have stated that they reserve their right to take necessary action against the complainant and have asked the complainant to prove such wild allegations. The opposite parties have clarified that opposite party No. 2 is a post-graduate in Gynaecology and Obstetrics from a reputed university and a Member of Royal College of Obstetricians & Gynaecologists (London). The problem of the complainant was well under control. The husband of the complainant took her to P.G.I., Chandigarh on his own because that option is always with the attendant of the patient. The opposite party Nos. 1 to 6 have also stated that the opposite party Nos. 1 & 2 were insured with The New India Insurance Company for a sum of Rs. 50 lacs and 10 lacs respectively (Paper Nos. 54 & 55).
9. The opposite party No. 7 has filed a separate written statement, which is at Paper Nos. 66 to 67. In its written statement, the opposite party No. 7 has stated that Smt. Nirmala Gupta, the complainant, is hale and hearty and regularly going to her office. Till 15.01.2003, all the nursery and attendance of the patient was done by the opposite party No. 1. From 16.01.2003, the patient was not in control and management of opposite party No. 1. It has also been stated that the amount of compensation claimed by the complainant is highly hypothetical, unreasonable, imaginary, without any basis and has been claimed without considering the uncertainty of life for which no body is to be blamed. The amount of compensation claimed by the complainant under various heads of pain and agony to herself, to her husband and to her children are overlapping and highly exaggerated.
910. In support of her consumer complaint, the complainant has filed 16 documents in evidence, which are at Paper Nos. 170 to 185. Out of these documents, Paper No. 171 is a certificate issued by M/s Medicine Point, Dehradun, but the complainant has termed it as the medical certificate of the complainant issued by opposite party No. 1 (i.e. C.M.I.). Rest of the documents are bills issued by various chemists. However, these bills are also not in proper order and the amounts, as shown by the complainant in the list (Paper No. 170) also vary. Thus, these documents are quite misleading. The complainant has also filed her affidavit dated 09.01.2011 (Paper Nos. 186 to
191) and also photocopies of the medical certificates issued by C.M.I., Dehradun; Himalayan Institute Hospital Trust, Doiwala; Doon Hospital, Dehradun; P.G.I., Chandigarh and bills of various dates, which are at Paper Nos. 192 to 387. Before going into the details of these documents, we would like to see, whether it is a prima facie case of medical negligence or not.
11. The record reveals that the complainant had also filed a consumer complaint before the National Human Right Commission (in short "NHRC"). The NHRC has passed the following order in this regard (Paper No. 430):-
"Concluded and No Further Action Required (Dated 9/15/2005) Status on 07.12.2006. The case is closed."
12. Then an investigation was also conducted at the behest of the Hon'ble Lokayukta, Uttarakhand. In this regard, a report was submitted to the State Government by the Director General, Medical, Health and Family Planning, Uttarakhand, who had got the matter investigated by a Committee of experts consisting the following:-
(a) Dr. Smt. P.L. Joshi, Additional Director, Medical Services
(b) Dr. Smt. Anjali Nautiyal, Sr. Gynaecologist, Women's Hospital, Dehradun
(c) Dr. Surendra Dutt Saklani, Surgeon, Doon Hospital.10
This Committee made the following observations in the matter:- (Paper Nos. 439-440).
" 2& fnukad 03-01-2003 dks efgyk dk (Chronic Infection with Recurrent Adenomyosis) ds fy, vkWijs"ku gqvk ftldk fyf[kr lgefr dk çek.k ekStwn gSA ¼Nk;kçfr layXu½ 3& rhu fnu rd ejht dh fLFkfr lkekU; Fkh] fnukad 06-01-2003 dks ejht dh gkyr fcxM+h ftlds fy, Mk0 lqferk çHkkdj us fnukad 07-01-2003 dks nqckjk mDr jksxh dk vkijs"ku fd;k vkSj ejht dks ICU esa f"k¶V fd;kA 4& lh0,e0vkbZ0 vLirky ds ,d gh dUlsUV QkeZ ij fnukad 03-01-2003 rFkk fnukad 07-01-2003 dh frfFk;ka vafdr gS ftl ij vfHkHkkod dk gLrk{kj ekStwn gSA ¼Nk;kçfr layXu½ 5& fnukad 16-01-2003 rd jksxh dks vkbZ0lh0;w0 esa j[kk x;k tgka ij "kY; fpfdRld] dk; fpfdRld] g~n; jksx fo"ks'kK ds lkFk Mk0 lqferk çHkkdj us ejht dk mipkj fd;k rFkk 16-01-2003 dks ejht dks ih0th0vkbZ0] p.Mhx<+ ds fy, jSQj dj fn;k x;kA 6& fnukad 16-01-2003 ls 17-02-2003 rd mDr jksxh P.G.I., Chandigarh esa jgha tgka ij muds Recto Vaginal Fistula rFkk Burst Abdomen, Colostomy Closer ds vkWijs"ku gq,A 7& vc ejht vius dk;kZy; esa dk;Zjr gSA 8& Gynaecology and Obstetrics ds dbZ esfMdy dkystksa@mPp fpfdRlk laLFkkuksa esa ,e0Mh0 esa LukrdksRrj dh fMxzh nh tkrh gS rFkk dgha ij MS dh ¼LukrdksRrj½ fMxzh çnku dh tkrh gSA nksuksa gh ikB;Øe dk;Z{kerk ,oa i}`fr ,d leku gSA ;gh cukjl fgUnw fo"ofo|ky; ds Mhu ds çek.k&i= ls Li'V gksrk gSA bu rF;ksa ls ;g çrhr gksrk gS fd Mk0 lqferk çHkkdj tks fd Gynaecology and Obstetrics esa MD fMxzh /kkjd gSa fdlh Hkh Gynaecology and Obstetrics lEcU/kh "kY; fpfdRlk djus ds fy, l{ke gSaA Mk0 lqferk çHkkdj us vkijs"ku ls iwoZ ejht dks bUosfLVxs"ku dh lykg nh FkhA lh0,e0vkbZ0] nsgjknwu ds ,d gh dUlsUV QkeZ ij fnukad 03-01-2003 o 07-01-2003 nksuksa dh frfFk;ka vafdr gSAa 11 fdlh Hkh "kY; fØ;k esa dkEiyhds"kUl gksus dh lEHkkouk lnSo cuh jgrh gSA blhfy;s lgefr i= ij gLrk{kj djk;s tkrs gSaA fgLVªsDVeh djrs le; jsDVy bUtjh gksus dh laHkkouk jgrh gS ftldk mipkj fd;s x;s mipkj ds vuq:i gSA ftldk mYys[k Gynaecology and Obstetrics ltZjh dh fofHkUu iqfLrdkvksa esa fd;k x;k gSA fu'd'kZ%& bu rF;ksa ls ;g çrhr gksrk gS fd jksxh ds vkijs"ku ds nkSjku ejht dks jsDVy bUtjh dk dkEiyhds"ku gqvk Fkk rFkk tSls gh bldk irk pyk fpfdRldksa us mldk leqfpr mipkj fd;k rFkk ejht dh fLFkfr esa lq/kkj u gksus ij mls fnukad 16-01-2003 dks ih0th0vkbZ0] p.Mhx<+ jSQj fd;k x;kA lnL; lnL;
g0@& g0@&
¼Mk0 vatfy ukSfV;ky½ ¼Mk0 lqjsUnz nRr ldykuh½
lhfu;j xkbukdksyksftLV ltZu
ftyk efgyk fpfDrlky;] nsgjknwu nwu fpfdRlky;] nsgjknwu
v/;{k
g0@&
¼Jherh ih0,y0 tks"kh½
vij funs"kd ¼fpfDrlk mipkj½ "
13. This report was submitted by the Committee on 28.03.2007 to the Director General, Medical Health and it reveals that the opposite party No. 2 had not committed any negligence in the treatment of the complainant. However, the complainant has submitted the report of the Committee constituted by the Director General, Medical Health, Uttarakhand vides its order dated 19.03.2004 and forwarded the findings made by the Committee to the Assistant Registrar (Law), NHRC, New Delhi vide its letter dated 08.09.2004 (Paper No. 597). The observations made by the committee were as under:-
"¼1½ jksxh ds vkijs"ku ls iwoZ jksxh dk jsfM;kykSftdy@iSFkksyksftdy ijh{k.k ugha fd;k x;kA ¼2½ "kY; fpfdRlk ls iwoZ jksxh ds vfHkHkkod ¼ifr½ dh lgefr ugha yh x;hA 12 ¼3½ "kY; fpfdRlk djrs le; jsDVe batjh gks xbZ ftldks fd "kY; fpfdRld Mk0 ¼Jherh½ lqferk çHkkdj }kjk "kY; fØ;k ds nkSjku laKku esa fy, tkuk çrhr ugha gksrkA ¼4½ Mk0 ¼Jherh½ lqferk çHkkdj }kjk vius iSM ftl ij ,e0,l0 vkCLVªsfVd ,.M xk;uksdkWyksth eqfnzr Fkk] dk ç;ksx fd;k x;k tc fd Mk0 ¼Jherh½ lqferk çHkkdj ,e0Mh0 vkCLVªsfVDl ,.M xk;uksdkWyksth fMxzh /kkjd gSAa bl çdkj Mk0 ¼Jherh½ lqferk çHkkdj }kjk viuh fMxzh ds ckjsa esa Hkzked tkudkjh nh xbZA ¼5½ mijksDr ds fy, Mk0 ¼Jherh½ lqferk çHkkdj mRrjnk;h gSaA "
14. However, as stated above, the NHRC closed the file without taking any action against Dr. Sumita Prabhakar - opposite party No. 2 on the ground that a criminal case No. 2172/2003 is pending in the Court of Judicial Magistrate, Dehradun and also that the complainant has approached District Forum, Dehradun. However, from the perusal of the record (Paper Nos. 442 to 448), it appears that Dr. Sumita Prabhakar had filed a Criminal Revision No. 84 of 2006, Dr. Sumita Prabhakar vs. (1) State of Uttaranchal, (2) M.R. Gupta against the order dated 01.07.2006 passed by the Additional Chief Judicial Magistrate - Ist, Dehradun in criminal complaint case No. 928 of 2006. The Learned Sessions Judge, Dehradun vide his order dated 05.02.2007, allowed the criminal revision and the order passed by the Additional Chief Judicial Magistrate was set aside and the complaint was dismissed. In this judgment, all the aspects of the case have been discussed in detail. The Learned Session Judge has concluded that:-
"37. Thus, from whatever briefly said earlier makes it loudly clear that (i) the accused was not lacking in skill and expertise required for removal of such ailment with which the patient was suffering from and (2) the evidence is completely lacking to prove even prima facie that the accused did not exercise with reasonable competence the skill and expertise which she did possess. These were two minimum requirements to prosecute a medical practitioner for the alleged negligence in treatment. Consequently, the impugned order being in direct conflict with the mandate of 13 Hon'ble Supreme Court is not sustainable in law and deserves to be set aside and the complaint not disclosing any offence against the accused is also liable to be dismissed. "
15. The complainant's authorised representative, her husband Sh. M.R. Gupta, has filed the written arguments which are at Paper Nos. 547 to 634. The opposite party No. 2 has filed her written arguments which are at Paper Nos. 635 to 646. The opposite party Nos. 1 and 3 to 6 have filed their written arguments, in common, which are at Paper Nos. 649 to 654. The opposite party No. 7 has filed its written arguments which are at Paper Nos. 657 to 659.
16. The learned counsel for the opposite parties have also referred to the following judgments of the Hon'ble Supreme Court, Delhi High Court, High Court of Punjab and Haryana and State Commissions, which are as under:-
1) Sunder Singh Rana vs. Govind Ram; III (2003) CPJ 352.
2) Satyendra Singh Negi vs. Smt. Zoni Devi & Ors.; 2006 UAD 950.
3) Indian Overseas Bank vs. R.M. Marketing and Services Pvt.
Ltd.; AIR 2002 Delhi 344.
4) Tikam Chnad Jain vs. State Government of Haryana and Anr.; (1987) 62 CompCas 601 (P&H) = (1987) 67 STC 388 (P&H).
5) Yudhisthir Khatua vs. District Consumer Disputes Redressal Forum & Ors.; III (2007) CPJ 225.
6) Bhunesh Kumar Bhatnagar & Anr. vs. Dhapa Devi; II (2005) CPJ 268.
7) Kusum Sharma and Ors. Vs. Batra Hospital and Medical Research Centre and Ors.; AIR 2010 Supreme Court 1050.
8) Madan Lal & Ors. Vs. Dr. R.K. Chaudhary & Ors.; 2012 HVD (MNC) 207.
17. We went through the written arguments submitted by the parties. In these arguments, the parties have reiterated the facts which we have already 14 discussed above. The learned counsel for the parties made oral submissions. We perused the above cited judgments. The above cited judgments mentioned at serial No. 5 to 8 pertain to the case of medical negligence. The Hon'ble Supreme Court in the case of Jacob Mathew (Dr.) Vs. State of Punjab and another; III (2005) CPJ 9 (SC) has clearly observed in sub-para (3) of para 49 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 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". The Hon'ble Supreme Court in the aforesaid judgment has also discussed in para 22 the Halsbury's Law of England (Fourth Edition, Volume 30, Para 35), in order to evaluate the degree of skill and care required by a medical practitioner in the following words:
"The practitioner must bring to his task 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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in 15 fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
18. The Hon'ble Supreme Court's judgment in the case of Jacob Mathew (Dr.) (supra), has been followed by the Hon'ble Apex Court in the case of Martin F. D'Souza Vs. Mohd. Ishfaq; I (2009) CPJ 32 (SC) = 2009 (1) CPR 231 (SC), cited by the learned counsel for respondent No. 1. In the said case, the Hon'ble Apex Court has held as under:
"41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa and others Vs. State of Maharashtra and others; AIR 1996 SC 2377, or operated on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
44. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
46. There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers some serious harm, should the doctor be held liable? In our opinion he should not. Science advances by experimentation, but experiments sometime end in failure eg. the operation on the Iranian twin sisters who were joined at the head since birth, or the first heart transplant by Dr. Barnard in South Africa. However, 16 in such cases it is advisable for the doctor to explain the situation to the patient and take his written consent.
47. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
54. In para 52 of Jacob Mathew's case the Supreme Court realizing that doctors have to be protected from frivolous complaints of medical negligence, has laid down certain rules in this connection:
(i) A private complaint should not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
(ii) The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion, preferably from a doctor in Government service, qualified in that branch of medical practice who can normally be expected to give an impartial opinion applying the Bolam test.
(iii) A doctor accused of negligence should not be arrested in a routine manner simply because a charge has been leveled against him. Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest should be withheld."
19. In the light of the aforesaid judgments of the Hon'ble Supreme Court and also the view taken by the Learned Sessions Judge in the criminal revision, 17 we are of the considered view that no case of medical negligence can be made out against the opposite parties.
20. The learned Session Judge, Dehradun has also held the same view in his order dated 05.02.2007 passed in Criminal Revision No. 84 of 2006. Therefore, we do not find any force in this consumer complaint.
21. In view of the above, the consumer complaint is dismissed. No order as to costs.
(MRS. KUSUMLATA SHARMA) (C.C. PANT)