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Judgment
Binoy Kumar, Presiding Member
This Revision Petition has been filed by the Legal Heirs of the Petitioner – Kuldeep Chand Dutta (hereinafter referred to as, the ‘Complainant’) against the impugned Order dated 16.02.2015 passed by the State Consumer Disputes Redressal Commission, Haryana (hereinafter referred to as the “State Commission”) in Remand Appeal No. 646/2013 First Appeal No. 701/2011, whereby the Appeal filed by the Opposite Parties Nos. 1 and 3 was allowed and the Order of the District Consumer Disputes Redressal Forum, Panchkula (hereinafter referred to as the “District Forum”), allowing the Complaint against the Opposite Parties Nos. 1 and 3, was set aside.
The brief facts of the case are that on 03.11.2007, the wife of the Complainant (hereinafter referred to as, the ‘patient’) approached the Opposite Party No. 1 for treatment of abdominal pain after disclosing the medical history of her irregular blood pressure and diabetes, where she was alleged to have been advised to undergo minor surgery for Cholecystitites and hernia without exploring other medical treatment options, to which the patient agreed and underwent certain clinical tests at Dhawan Hospital Lab, which is associated with Opposite Party No.1. On 5.11.2007, the patient underwent surgery performed by the Opposite Party No.1. Later, the Complainant was informed that the patient was in coma but would recover soon. However, it was alleged that the Opposite Party No.1 never updated the Complainant on the patient's condition and kept her in the ICU without disclosure of her deteriorating health condition. Suddenly, on 06.11.2007, at around 11:30, the Opposite Party No.1 instructed the Complainant and other relatives to transfer the patient to Opposite Party No. 2 for further treatment, citing inadequate medical facilities. It was alleged that the patient was transferred to the Opposite Party No. 2 without a specialist doctor in the ambulance, despite being in a critical condition, where she was declared brought dead. Being aggrieved with the alleged deficiency in service causing untimely death of his wife due to gross negligence on the part of Opposite Party No. 1 and lack of necessary facilities and having suffered mental agony, physical harassment and financial loss, the Complainant filed a Complaint before the District Forum, seeking compensation amounting to Rs. 10 lakh and Rs. 11,000/- as litigation cost.
The Opposite Parties, in their reply, denied negligence during the treatment given by them.
The District Forum, vide its Order dated 31.03.2011, allowed the Complaint, holding the Opposite Party No. 1 grossly deficient in service. No liability was fastened on the Opposite Party No. 2 being a hospital, but since the Opposite Party No. 3 – Insurance Company was indemnifying the Opposite Party No. 1, therefore, both were held liable jointly and severally.
Aggrieved by the Order of the District Forum, the Opposite Parties Nos. 1 and 3 filed Appeal before the State Commission.
The State Commission, vide its Order dated 16.02.2015, allowed the Appeal and set aside the Order passed by the District Forum and dismissed the Complaint.
Being aggrieved, the legal heirs of the Complainant filed the instant Revision Petition.
Heard the learned counsel for both the sides.
After going through the record and having considered that two expert opinions had been filed in the matter, one by the Petitioner / Complainant and the other by the Respondent No. 2 / Hospital / Doctor, I sent the matter to the concerned specialist Doctors of AIIMS, New Delhi to seek their expert opinion on the issue, with the note reproduced as under:
The expert opinion of concerned Doctors of AIIMS, New Delhi is sought in this matter in view of two different expert opinions filed by the Petitioner / Complainant on the one hand and the Respondent No. 2 / Hospital / Doctor on the other. In this case, the patient, on account of abdominal pain, came to Dr. Kuldeep Dhawan at Dhawan Hospital, Panchkula for treatment on 03.11.2007. The Doctor advised surgery for cholecystitis and hernia. The patient underwent certain clinical tests at the laboratory of the hospital and was admitted on 04.11.2007. The surgery was done on 05.11.2007. On 06.11.2007, the Doctor advised the Complainant to shift the patient to a Super Speciality Hospital, where, on reaching, the patient was declared dead. The patient died due to acute myocardial infarction.
The Complainant / husband of the patient adduced the expert opinion of a Committee constituted by the Orders of Director General Health Services, Haryana, Panchkula, which by its report dated 12.01.2010 opined that “there is negligence on the part of Dr. Dhawan as he has not properly worked up the patient before taking her up for surgery”. This Expert Committee report is at page no. 89 of the main Paperbook.
On the other hand, the Respondent No. 2 / Doctor has filed expert witness reports of a few doctors, who have held the Doctor not guilty of any negligence. There are altogether six such affidavits of different doctors, which are from page nos. 65 to 76 in the main Paperbook. It is noticed that these opinions are uniformly worded in the same format, which needs to be looked into carefully.
In view of the divergent opinions of the reports of the Doctors in favour and against the Respondent No. 2 / Hospital / Doctor and in view of the fact that the patient was undergoing regular treatment at General Hospital, Panchkula / Chandigarh, where she was being treated for Pneumonopathy and both hypertension and diabetes, the seriousness of the preparatory investigation in such a case would be significant and need to be looked into carefully.
Hence, requesting for the expert opinion, so that proper justice may be rendered in the matter.
The Medical Board constituted at AIIMS sent its report dated 23.03.2024, which is as below:
“The medical board is of the opinion that there is no evidence of medical negligence on part of the treating doctors. According to the records available, the patient has been treated as per the standard of care routinely followed for the medical and surgical condition of the patient.”
After going through the expert opinions and the material on record, I notice that it would be difficult to point out medical negligence on the part of the Opposite Party No. 1. The only issue which needed to be carefully seen was whether the hospital / Opposite Party No. 1 had properly prepared for the surgery. The expert opinion of AIIMS clearly states that there was no negligence on the part of the Opposite Party No. 1 and that the patient was treated as per the standard of care routinely followed for the medical and surgical condition of the patient.
In this regard, I would like to rely upon the Order of the Hon’ble Supreme Court in the case of Martin F. D’Souza v. Mohd. Ishfaq, Civil Appeal No. 3541/2002, decided on 17.02.2009, wherein, it was observed as under:
“29. Before dealing with these principles two things have to be kept in mind : (1) Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge; and (2) A balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.”
In my considered opinion, the expert opinion of AIIMS is very clear in arriving at its conclusion that there was no medical negligence on the part of the Opposite Party No. 1. I have not found any other material on record or in the arguments that suggest any specific kind of negligence on the part of the Opposite Parties in performing the surgery. I do not see any ground for differing with the opinion of AIIMS, New Delhi, which has already taken into account the other expert opinions filed by the parties buttressing their respective claims.
I have perused the Order of the State Commission. I find that it is well reasoned and suffers from no illegality, material irregularity or jurisdictional error.
It will be worthwhile to consider certain case laws on the medical negligence cases passed by the Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab & Anr., Criminal Appeals Nos. 144-45 of 2004, decided on 05.08.2005, wherein it was observed as below:
The classical statement of law in Bolam’s case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. 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. Two 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 on which it is suggested as should have been used.
A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. 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. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
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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.
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The purpose of holding a professional liable for his act or omission, if negligent, is to make the 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.
In another case, Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors., Civil Appeal No. 1385 of 2001, decided on 10.02.2010, the Hon’ble Supreme Court observed as below:
On scrutiny of the leading cases of medical negligence both in our country and other countries specially 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 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 a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
In Vinod Jain vs. Santokba Durlabhji Memorial Hospital, (2019) 12 SCC 229, the Hon’ble Supreme Court observed as under:
“9. A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view (Bolam v. Friern Hospital Management Committee). In the same opinion, it was emphasised that the test of negligence cannot be the test of the man on the top of a Clapham omnibus. In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent, and it would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art. A situation, thus, cannot be countenanced, which would be a disservice to the community at large, by making doctors think more of their own safety than of the good of their patients.”
In Bijoy Sinha Roy vs. Biswanath Das & Ors., (2018) 13 SCC 224, the Hon’ble Supreme Court observed as under:
In Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1, this Court observed that uncalled for proceedings for medical negligence can have adverse impact on access to health. While action for negligence can certainly be maintained, there should be no harassment of doctors merely because their treatment was unsuccessful. This Court directed that the Consumer Fora must proceed with any complaint only after another competent doctor or Committee of doctors refers that there was a prima facie case. In V. Krishan Rao versus Nikhil Super Speciality Hospital (2010) 5 SCC 513, para 33, this direction was however, held to be inconsistent with the binding judgment in Jacob Mathew (supra). It was held that there was obvious jurisprudential and conceptual differences between the cases of negligence of civil and criminal matters. Protection of the medical professionals on the one hand and protection of the consumer on the other are required to be balanced.
In view of the aforesaid discussion, the Revision Petition is dismissed and the Order of the State Commission is upheld.