BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  

FA  

Between:

Asian Institute of Gastroenterology

6-3-661, Somajiguda

Hyderabad-500 082

Rep. by its Manager                                                     

And

A. H.No. 16-11-310/9-5

Saleem Nagar Colony-II

Malakpet, Hyderabad.                                                                                                                                    

Counsel for the                        

Counsel for the  

CORAM:

&

TUESDAY, THE TWELFTH DAY OF MARCH 

ORAL ORDER: 

***

1)  

2)                                  

3)                  Percutaneous        performed ERCP + Stone Clearance + Stenting on 25.11.2006 and the patient was planned for TURP+ Laproscopic Cholecystectomy.               

4)         

5)                

6)                         

7)                        

In the discharge summary it is stated that     

8)                   

3.6.4.  

In patients with      partial (or even complete)    

He further drew our attention  

“Biliary endoprosthesis insertion for choledocholithiasis is an important         

Retained common bile duct stones after    

The main                  

9)                           

10)                   discharge summary in which 

He      

11)             Hon’ble Supreme Court in     

50. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks.

51. InRoe and Woolleyv.Minister of Health(1954) 2 QB 66, Lord Justice Denning said : ‘It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way.”

69. This court in a landmark judgment inJacob Mathewv.State of Punjab & Another(2005) 6 SCC 1 while dealing with the case of negligence by professionals also gave illustration of legal profession. The court observed as under:-

“18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or 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 and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. 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 practicing and  Michael Hyde and Associatesv.J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charles worth & Percy, ibid, Para 8.03)”

74. In another leading caseMaynardv.West Midlands Regional Health Authoritythe words of Lord President (Clyde) inHunterv.Hanley1955 SLT 213 were referred to and quoted as under:-

“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men...The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...".

The court per Lord Scarman added as under:-

"A doctor who professes to exercise a special skill must exercise the ordinary skill of his specialty. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional  

"22. In the matter of professional liability professions differ from occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services. (see: Jackson and Powell on Professional Negligence, 3rd Edn. paras 1-04,1-05 and 1-56).

88. InAchutrao Haribhau Khodwa & Othersv.State of Maharashtra & Others(1996) 2 SCC 634, this Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. 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.

94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic 

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  

Had the patient been suffering from                

12)                 medical procedure and there is no negligence    

13)                

1)PRESIDING MEMBER 

2)          ________________________________

MEMBER 

12/03/2013

*pnr

UP LOAD – O.K.