State Consumer Disputes Redressal Commission
Dr. R.B. Garg vs Jharri Ram Bhatt on 21 December, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 21-12-2006 Appeal No. A-1154/1998 (Arising from the order dated 22-09-1998 passed by District Forum-I, Tis Hazari Court, Delhi in Complaint Case No.2548/94) 1. Dr. R.B. Garg, Appellant No.1 D-10/3, Sector 10, Through Rohini, Delhi. Mr. Anoop K. Kaushal, Advocate. 2. Sant Parmanand Blind Appellant No.2 Relief Mission, 18, Alipur Road, Delhhi. Versus Shri Jharri Ram Bhatt Respondent 21/35-A, West Ghonda, Through Delhi. Mr. Ashutosh Sharma, Advocate. CORAM : Justice J.D. Kapoor - President Mr. Mahesh Chandra - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) On account of medical negligence in not taking care while operating the eye of the respondent and also not taking post-operative care, the appellants have been held guilty for deficiency in service by the District Forum vide its order dated 22-09-1998 and directed to pay Rs. 50,000/- as compensation and Rs. 1,000/- as cost of litigation.
2. Feeling aggrieved, the appellants have preferred this appeal.
3. The allegations of the respondent leading to the aforesaid impugned order, in brief, are that on 27-04-1994 he got admitted his wife Smt. Govindi Devi in hospital at Sant Parmanand Blind Relief Mission for operation of her left eye and on 28-04-1994 respondent No.1 R.B. Garg performed the said operation. After the operation a lense was implanted by the doctor and he was charged for the same. On the next day of the operation when the bandage was opened his wife couldnt see and doctors were talking among themselves that operation was not performed properly. The doctors gave injection in her eyes for the next few days and she was also given some medicines to swallow and eye drops were also given. It is also the case of the respondent that his wife was discharged and she had puss in her eye at that time and because of negligence in performing the operation his wife lost the eye sight of the left eye and when his wife went to the hospital after some days, appellant No.1 Dr. R.B. Garg told her that she had spoiled her eye by putting acid in the same. He took his wife to Guru Nanak Eye Centre, New Delhi and Dr. Rajendra Prasad Hospital, a wing of All India Institute of Medical Sciences and he was informed by the hospitals that the left eye of his wife had become useless because of wrong operation.
4. As against this the version of the appellants, in brief, is that immediately after the operation it is not biologically possible to cover full vision in the sight of the respondents wife.
Prima facie it appeared that patient developed corneal haziness as a result of lack of proper postoperative care and strict adherence to follow-up instructions as advised at the time of discharge. It could also be attributed to unhygienic conditions at her house. Further that precise detection of alleged trouble cannot be made within the limited scope of hospital, the patient was immediately referred to Rajendra Prasad Centre for Opthalmic Sciences at All India Institute of Meidcal Sciences on 25-05-1994 and patient didnt go there as per advise and thus wasted valuable time causing damage to her eye. That the appellant claims that he is a Surgeon of credence and great experience and alleged infection was not due to any omission, deficiency or negligence in the operation or in the treatment given by the appellants.
5. On behalf of appellant No.2-Hospital the plea was taken that it was a charitable hospital and did not charge any fees for the medical service rendered but they charge only donation of Rs. 650/- and cost towards loading and food and the lense implanted and therefore the respondent did not fall within the definition of consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. By virtue a consumer who hires or avails service for consideration which has been paid partly, partly promised or under any system of differed payment and include any beneficiary of any such service other than the consideration paid for any commercial purpose.
6. So far the contention that complainant is not a consumer is concerned, it has no substance and is completely devoid of merit in view of the decision of Supreme Court in Indian Medical Association Vs. V.P. Shantha & Ors. III (19995) CPJ 1 (SC) and our latest decision in S.C. Mathur & Ors. Vs. AIIMS & Anr. , C-268/95 dated 08-08-2006 wherein we have in a highly dissective manner dealt with each and every aspects of services rendered by Government and private hospitals and also those hospitals who are charitable and provides free service etc. as these services fall within the service rendered against consideration :-
(i) Only those Government Hospitals/Health Centre/Dispensary fall outside the purview of Consumer Protection Act, 1986 where no charge is made from any person rich or poor availing the medical services. Nominal or token amount of registration or on any such count does not amount to consideration for service as envisaged by section 2(1)(d) of the Act.
(ii) Where services are provided against charges including the charges for consumables, charges for ward, service charges etc. by the Government Hospitals/Health Centres/ Dispensaries, these services fall within the ambit of service for the purpose of Section 2(1)(o) of the Act and the patient availing such service falls within the definition of consumer as defined by section 2(1)(d) of the Act. It is immaterial whether these charges are not charged from poor sections.
If such charges are charged from any other patient, poor patients can avail the benefit as a consumer.
(i) Since consideration for a contract of personal service is essence of relationship of consumer and service provider and since such a consideration is received by the Government Hospital/Health Centre/ Dispensary and not by a treating doctor or team of treating/attending doctors, patient paying such charges is a consumer qua the Government Hospital/Health Centre and not the treating Doctor/Doctors.
(ii) Since Doctors at Government Hospital /Dispensary/Health Centre do not receive either from the patient or from the Hospital consideration for treatment of individual patient as private medical practitioners charge per patient and since Government Doctors receive monthly salary for treating thousands of patients and not patient-wise consideration which even otherwise is pea-nut as compared to private medical practitioners, there is no contract for personal service between the patient and these doctors.
(iii) In case of Government Hospitals/Health Centres/Dispensaries, treating doctors cannot be held liable either individually or jointly or severally for medical negligence for the purpose of compensating the patient/consumer.
For every kind of deficiency administrative as well as medical, Government Hospital/Health Centre/ Dispensary alone is liable being the service provider qua the consumer.
(iv) In case of private Nursing homes/medical centres/practitioners, where charges for medical treatment are received by them and or paid to the individual doctors per patient, both Nursing home/Medical Centres and treating Doctors are jointly and severally liable.
7. On the contrary the counsel for the respondent has contended that merely that the appellant admitted that complications arose after the operation, may be due to lack of post operative care, which was also the duty of the appellant, and the respondent was under constant treatment of the appellant, the appellants are liable to compensate the respondent for the negligence may be post operative negligence that resulted in the loss of vision.
8. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.
A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
9. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
10. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(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, which 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.(5)
The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
11. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are -
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
12. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence.
The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency 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 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 (Section 2(1)(g)).
13. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death? Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
14. Contention of the counsel for the appellants that the onus was upon the respondent to prove that the problem suffered by her was the direct result of unsuccessful operation or the lack of proper care after the operation does not hold water at all as in order to absolve oneself from the charge of medical negligence or lack of post-operative care onus is on the medical professional or the hospital.
15. We may point out that the question of deciding as to whom the onus lies is directly related to the person who has the full knowledge or technical knowledge and not upon the person who is a gullible person as against those who are well qualified and well aware of the field they are practicing in.
16. Now adverting to the merits of the case. The main defence of the operating doctor is that the complication occurred after the operation and after the patient was discharged and it is not a case that appellant doctor while performing operation did anything which he was not supposed to do and did not do a thing which he was supposed to do and further the lack of post operative care by the respondent as he did not follow up the instructions strictly advised by the doctor and may be because of unhygienic conditions at his house that the problem was further aggravated by the respondent himself by not adhering to the advice and since the precise detection of the alleged problem was not within the limited scope of the appellant hospital, was advised to go to AIIMS but he went there belatedly and by that time the damage to the eye had already occurred. So much so the hospital where the patient was ultimately treated i.e. Guru Nanak Eye Centre also could not detect as to what was the post operative complication, whether it was fungal corneal abscess as they put a question mark as to such a possibility.
17. There are deficiencies of medical professionals and hospitals and the nursing homes by not providing congenial conditions to the patient.
There may be administrative deficiency, there may be lack of management of the patient and there may be deficiencies of not taking post-operative care. Merely because a medical professional has undertaken an operation in a very skillful manner and there was no other option with the medical professional than to resort to that operation he undertakes does not mean that the hospital or the doctor is not liable for the consequences suffered by the patient arising out of the lack of post-operative care or due to administrative deficiency or due to other such conditions. Unless and until the hospital or the medical professional proves by convincing evidence that subsequent development was solely because of the non-adherence of the instruction by the medical professional by the consumer or due to certain conditions over which hospital or medical professional has no control, only inference which is to be drawn against the hospital and the medical professional is that some or other kind of deficiency which in terms of section 2(1)(g) of the Consumer Protection Act has a very wide connotation and includes even ingredient or element of simple fault, imperfection, or any kind of shortcoming or even inadequacy not only in the quality and nature but also in the manner of performance which is required to be maintained by medical professionals and the hospitals, particularly in relation to the service they have provided.
18. Let us test the facts of the case on the anvil of the aforesaid criteria culled out by us on the basis of the well established and unanimous and judicious opinion across the world as to the deficiency or negligence on the part of the medical professional while treating a patient either pre-operation or during operation or post-operation.
19. Admittedly the operation of the respondents wife took place on 28-04-1994 and she was discharged on 05-05-1994. She was advised to come to the hospital on 11-05-1994 when the hospital themselves admitted that she developed corneal haziness. She again visited the hospital on 25-05-1994 with no satisfactory improvement.
Thereafter she again visited the respondent on 01-06-1994 and was referred to Guru Nanak Eye Hospital on the ground that she had requested for reference.
20. As is apparent during all these periods she was in the constant treatment of the appellants and to say that blindness of the eye of the respondent was the result of lack of post-operative care by the respondent herself, would not be believable as the aforesaid reasons could not have been the possible reason of developing corneal haziness as the doctor of Guru Nanak Eye Hospital while treating the patient put a question mark as this problem was detected by the doctors of the Guru Nanak Eye Hospital where she was sent by the appellant because of the non-availability of proper treatment of the alleged problem.
21. There is no doubt that the operating doctor was well qualified and a skilled person to undertake the operation of the kind conducted on the patient. In order to arrive at a conclusion whether there has been any kind of deficiency, may such deficiency be not direct result of succession operation but other patient who is treated by the hospital and the doctors employed by it needs to be attended to in perfect and adequate manner and inference of any lack of care which included the lack of post operative care also can be drawn from consequences or the development of a problem by a patient subsequent to the operation. Appellants have failed to produce the medical literature or any other opinion of any doctor to show that the problem of corneal haziness was a direct result of non-adherence of instructions of the appellants by the respondent and was due to some unhygienic conditions. Because of lack of such a medical opinion the only inference that can be drawn was it was due to the post-operative negligence of the appellants that caused corneal haziness to such an extent that the hospital in question was not even able to detect the problem precisely and had to send the patient to some other hospital with super speciality i.e. Guru Nanak Eye Hospital and by that time the respondent lost vision of left eye.
22. The aforesaid reasons persuade us to dismiss the appeal as it is the hospital which has been asked to pay compensation.
23. F.D.R./Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
24. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
25. Copy be sent to Presidents of District Fora.
26. Announced on the 21st December, 2006.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member jj