Order No. 42 dt. 05/09/2017
The case of the complainant in brief is that the complainant had an accidental fall on 17/10/2008 and sought for medical assistance from B. P. Poddar Hospital and Medical Research Ltd. for treatment and for recovery of his neck femur bone. The complainant was treated under Dr. Sanjay Sen, o.p. 2 attached to o.p. 1, hospital. The complainant was admitted to the said hospital after undergoing several tests and underwent surgical operation conducted by o.p. 2 and o.p. 3 adopting a procedure in situ fixation of fracture with four cannulated screw after close reduction. The complainant noticed that after undergoing such surgery the complainant felt severe and acute pain and deformity existed in the right hip. Therefore the complainant had to be admitted again in the hospital on 15/12/2008. The surgery was conducted for removal of one loose screw on 16/12/2008. The said surgeon extracted the loose screw which gave rise to pain to the complainant. After such operation the complainant could not move freely and he had to depend on crutches. The complainant thereafter consulted another doctor at Kothary Medical Centre and Dr. A. K. DasBiswas asked the complainant for undergoing some tests. The complainant thereafter consulted another doctor namely Dr. C. Lenin at his Gariahat Chamber who was attached to Apollo Hospital of Chennai. The said doctor after examining the complainant opined that his screw of setting for his neck femur bone was loosening and it was further opined that removal of screw is necessary to heal up and to repair the fracture of the knee.
Because of such medical negligence and the reckless treatment provided by Dr. Sanjay Sen, o.p. 2 who guilty of deformity created and/or percolated in the setting of femur bone fracture of the complainant. The complainant could not join his duty for which he suffered for financial loss of Rs. 6,00,000/- and accordingly prayed for compensation of Rs. 9,00,000/- in total against the o.p.s no. 1 to 3 and also prayed for litigation cost of Rs. 20,000/- from them.
O.p.s contested the case by filing w/v and denied all the material allegations against them. It was stated that the present complaint is not supported by any medical expert opinion as filed by the complainant. The complainant filed this case without support of any expert’s view of subject and he has made these allegations without support of any scientific literature in this regard. On the basis of the said fact the o.p.s prayed for dismissal of the case. The o.p.s further stated that the o.p.s did not commit any negligence in rendering treatment to the complainant and as such the o.p.s prayed for dismissal of the case. The o.p. 2 as per prescribed norms of practice treated the said patient and there was no act of negligence on his part. The o.p. 2 after having taking all precautions and using requisite skills, diligence, knowledge and expertise, no warranty or guarantee was ever given by the o.p. 2 to the patient about result of treatment, since the procedural complication / results is a matter of fact and not a matter of speculation. Hence the complainant is liable to be dismissed.
The complainant after injury to his right hip/right side of face and forehead took admission at o.p. 1, hospital he was attended by the emergency doctor in the emergency and the R.M.O. and o.p. 2 in the ward. X-ray was taken which showed intracapsular fracture of neck of right femur. The patient was not taking any medications for diabetes even though his blood sugar was very high. The intracapsular fracture of neck of right femur should be fixed with cannulated hip screw. The blood report revealed that the patient had a blood sugar, (fasting of 120 and p.p. 224). The patient was referred to physician who started the patient on insulin. Accordingly, he was put on antibiotics since he was not taking any medications for diabetes for long time. As an abundant precaution the patient was started on IV antibiotics one day prior to operation. The patient party was explained (by way of documentation) about the possibilities of non-union of neck of femur. Fixation of cancellous screws were under C arm post. O.p. patient was out on IV antibiotics and insulin. On 21/10/2008 the patient refused to take insulin twice though his blood sugar was high. Second post-operative day dressing was changed and surgical wound was found to be cleaned. The patient was released on 24/10/2008 and he was advised to be non-weight bearing on crutches. The complication that arose in the said placing of screws was due to high blood sugar the complainant suffered at the relevant point of time and his refusal to take medicine as per the advice of the doctors. The diabetes delays healing of any fracture. On the basis of the said fact the o.p.s stated that there was no deficiency on their part and the case is liable to be dismissed.
On the basis of the pleadings of parties the following points are to be decided :
- Whether the complainant sustained injury during accident?
- Whether the complainant was treated by o.p. 2 and o.p. 3?
- Whether there was any medical negligence on the part of the o.p. 2 and o.p. 3?
- Whether the complainant will be entitled to get relief as prayed for?
Decision with reasons :
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. Lawyer for the complainant argued that the complainant after sustaining injury was removed to o.p. hospital for recovery of his broken neck femur bone and he was admitted on 17/10/2008 at o.p. 1, hospital and he was admitted under Dr. Sanjay Sen, o.p. 2. The said doctor operated and fixed the screw and said fixation was made by the o.p. 2 with the assistance of o.p. 3. After the said operation the complainant suffered pain and while he went to the doctor he was again advised to take admission in the said hospital and further surgery was conducted for removal of one screw on 16/12/2008. The said surgeon extracted the loose screw which gave rise to severe pain. The complainant thereafter consulted one doctor Sr. A. k. DasBiswas who advised him for seeking opinion from another doctor attached to Apollo Hospital, Chennai and Dr. C. Lenin treated the complainant for which he got relief. On the basis of the said fact the Ld. Lawyer for the complainant prayed for compensation and litigation cost.
Ld. Lawyer for the o.p.s argued that in order to substantiate the claim of the complainant that there was medical negligence the complainant failed to produce any expert’s opinion to establish the fact that the treatment rendered by o.p. 2 and o.p. 3 was not made in accordance with the normal medical procedure. It was further emphasized by the Ld. Lawyer of the o.p.s that the complainant had high blood sugar and he did not take any medicine to keep control of his blood sugar level before doing surgery upon the said patient the complainant’s relatives were informed that due to high blood sugar the operation may have some complications. In spite of providing such information the operation was done as per the normal treatment to be provided to the patient in case of such type of surgery. It was further emphasized that the complainant failed to follow the strict advice of the doctor during the post-operative period for which some complication arose that cannot give rise to any substance to the claim of the complainant that there was medical negligence on the part of the o.p. 2 and o.p. 3.
Considering the submissions of the respective parties it is an admitted fact that the complainant met with an accident on the fateful day and he was taken to o.p. 1, hospital. It is an admitted fact that the complainant had the high blood sugar and he never accepted any medicine to keep control of his high blood sugar. The o.p. 2 and o.p. 3 operated upon the complainant. The allegation of the complainant is that the screw placed during the time of operation became loosened for which the complainant suffered severe pain and second time he was again operated and the screw placed earlier was removed and during that period the complainant suffered severe pain. In order to substantiate the medical negligence the complainant must proof with the expert’s opinion but no such opinion was placed at the time of hearing of the case.
The complainant claimed that there was medical negligence on the part of the said doctor.
For establishing the fact regarding medical negligence we can rely on a book titling “ ‘Medical Negligence’ written by and shri S. P. Tyagi (Edition 2004) Reprint 2008, it has been mentioned at Page No. 64, 65, 66, 67 and 68 regarding Medical Negligence, classification of medical negligence of mistakes.
It runs thus :-
"What is Medical negligence
The term medical negligence is nowhere defined in any Code or Act. No legislature, has so far, made any attempt to define it. Even the medico legal jurists have not come forward to provide a specific meaning to this express.
'Medical negligence' is always an outcome of doctor patient inter se conduct and relationship, which lacks uniformity. The issue of medical negligence is a complicated one as medical professionals deal with human body. They do not deal with the machine. Human body is not a mere composition of bones and flesh. It is susceptible to emotions also. Response of medicinal treatment varies from patient to patient. This phenomenon is also applicable to recovery aspect. Further recovery aspect is not solely dependent upon the appropriateness of treatment provided by the doctor. Response or recovery of a patient also depends on his individual anatomy and physiology. Possibility cannot be ruled out that a drug may be effective in case of one patient, it may not be effective in second and may cause reaction in third. Medico Legal experience also establishes that there exist inherent risk in every treatment, medicinal or surgical. Further possibility of unforeseen mishap may not be ruled out. Even the medicinal literature provides for failure rates particularly in surgery.
The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be more than one course of treatment which may be advisable for treating a patient. Medical opinion may differ with regard to the course of action adopted by a doctor treating a patient. Further the concept of medical negligence may be studied with reference to the extent of approach of a medical professional towards three under mentioned concepts, which generally work as guidelines to determine the factum of medical negligence or otherwise in a particular case.
- Duty of care in accepting the patient for treatment.
- Duty of care in providing appropriate treatment.
(3) Breach of duty or commission of negligence in any of them and damage cause by such breach.
In other words, medical negligence is result of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties. Broadly speaking medical negligence means negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in vogue, which are being practiced by an ordinary and reasonably competent man, practicing on the same branch of medicine or surgery.
Classification of medical negligence or mistakes.
Negligence in medical care may broadly be classified into four categories :-
- Medical negligence at the level of doctors / paramedical staff / hospital authorities. Liability for negligence may be fixed at individual level and / or jointly or vicariously where hospitals nursing homes are involved.
(2) Negligence at the level of patient himself or his attendants also known as contributory negligence.
- Negligence at the level of manufacturers of drugs, equipment etc. and dispensers.
- Composite negligence i.e. at more than one of the above 3 levels. Negligence of first category may further be sub-classified into two categories viz.
(i) Individual liability of a medical professional.
(ii) Vicarious liability of an individual doctor or hospital for the Medical negligence may also be classified as under :
1. Medical mistakes.
2. Clinical negligence.
3. Surgical mistakes
4. Misplaced injection."
16. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128 (V 56 C 27), Hon'ble Supreme Court has observed thus :-
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. 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 : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."
17. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
‘Para” 90” In Jacob Mathew’s case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder :
(1) Negligence is the breach of a duty caused by omission to do something which is 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’.
(2)Negligence in the context of 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.
(3) 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. Para “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 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 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 is 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 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 Dr. Sanjay Gadekar Suprathet Hospital and Surgical Research Institute Ltd. Vs. Sangamitra @ Sandhya Khobragade, 2016 (3) CPR 270 (NC), Hon'ble National Commission has observed thus :-
"11 In this context we place reliance upon few judgments of Hon'ble Supreme Court. In Jacob Mathews Case (2005) 6 SCC 1, it was observed by Hon'ble Supreme Court as :
"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, the Hon'ble Supreme Court held that :
"in the very nature of medical profession, skills differ 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."
The Hon'ble Supreme Court in the case Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others (2010) 3 SCC 480; the bench comprising Hon'ble Justices Dalveer Bhandari and H.S. Bedi while dismissing the complaint held that :
"Consumer Protection Act, (CPA) should not be a "halter round the neck" of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death."
It further observed as, "It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish."
In Hucks v. Cole & Anr (1968) 118 New LJ 469, Lord Denning speaking for the Court, observed as under:
"a medical practitioner was not to be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner, in his field."
In Smt. Tilat Chaudhary & Anr. Vs. All India Institute of Medical Sciences & Anr. 2012 (4) CPR 565 (NC); Hon'ble National Commission has observed that "Laparoscopic Cholecystectomy for removal of stones in Gall Bladder. Injury to Bile Duct during operation. CBD injury was caused and detected during Laparoscopic dissection procedure and said procedure was converted into open cholecystectomy to rectify complication. CBD injury is a well-known complication of laparoscopic cholecystectomy procedure and frequency of such complications has increased with advent of laparoscopic cholecystectomy. Incidence of CBD injury is a well-known risk when a patient undergoes a laparoscopic cholecystectomy procedure. Same cannot be correlated as act of negligence or carelessness on part of operating surgeon. Merely because laparoscopic cholecystectomy had to be converted to open cholecystectomy procedure, it cannot be said that laparoscopic cholecystectomy procedure adopted by surgeon was counter indicative. Once it is shown that due medical protocol was followed, no case of medical negligence is made out against opposite parties. Complainants have failed to establish their case about medical negligence and/or deficiency in service against opposite parties."
The skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the complainant to prove that doctor was negligent in the line of treatment that resulted in the life of the patient.
The OPs have filed copy of consent letter dated 06.11.2015 of the complainant. In the said consent letter the name of complainant and the name of the doctor is mentioned. In the consent letter it is mentioned that risk in anaesthesia and risk of other procedures were explained to the complainant and the complainant gave his consent to the OPs for conducting operation of his daughter. In the consent letter it is specifically mentioned that “Matter in other language”.
In A.K. Vishwakarma (Dr.) Vs. Kiran Sinha & Anr. and Kiran Sinha Vs. A.K. Vishwakarma (Dr.), II (2016) CPJ 204 (NC); Hon'ble National Commission has observed thus :-
“ What constitutes medical negligence is well settled through a catena of decisions of the Hon'ble Supreme Court, including in Jacob Mathew v. State of Punjab & Anr., III (2005) CPJ 9 (SC) = VI (2005) SLT 1 = 122 (2005) DLT 83 (SC) = III (2005) CCR 9 (SC) = (2005) 6 SCC 1, a three-Judge Bench decision, Indian Medical Association v. V.P. Shantha and Others., III (1995) CPJ 1 (SC) = 1995 (SLT Soft) 561 = (1995) 6 SCC 651. Noted from these judgments, the broad principles to determine what constitutes medical negligence, inter alia, are : (i) Whether the doctor in question possessed the medical skills expected to an ordinary skilled practitioner in the field at that point of time; and (ii) Whether the doctor adopted the practice (of clinical observation diagnosis – including diagnostic testsand treatment) in the case that is accepted as proper by a responsible body of professional practitioners in the field. In this connection, in Jacob Mathew (supra), the three-Judge Bench, elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury's Laws of English (4th Edn., Vol. 30, para 35) as follows :-
"35. 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 operation in a different way…"
Even if for the sake of argument if it is found that there was ‘an error of judgement on the part of professional is also not negligence per se ,’ was held in the case of Dr. Mahadeb Prasad Kaushik vs. State of U.P., in criminal appeal no. 1625 of 2008. The bench headed by justices C. K. Thakker and D. K. Jain while quasing the prosecution initiated against a doctor, the bench explained, “the standard to be applied for judging whether a person charged has been negligent or not would be that often ordinary competent person exercising ordinary skill in that person”. The court granted a breather to doctors, who, are living under the constant in threat of being dragged to course of “erroneous” treatment these days, are hounded by ambulance chasers, a category of lawyers who convinced patients who file cases against any treatment “gone wrong”.
Hon’ble Supreme Court said “medical profession often called upon to adopt a procedure which involves higher element of risk, but which a doctor honestly believes as providing better 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 facts and circumstances of a given case”.
From the aforesaid discussion it is crystal clear that the complainant claimed that due to alleged negligence in performing surgery as a result of which fracture did not heal. As per the claim of the complainant that due to the loosening of screws the complainant sustained severe pain. It is found from the materials on record that the complainant was suffering from high blood sugar and he never took any medicine to control his blood sugar level. Due to such negligent act on the part of the complainant the injury suffered by the complainant did not properly heal. In this respect we can rely on a decision as reported in 2017 (2) CPR 864 NC wherein it was held that no such surgery can claim 100% recovery. In view of the facts and circumstances as stated above that the allegation made by the complainant against the o.p.s cannot be accepted and the complainant will not be entitled to get relief as prayed for.
Thus all the points are disposed of accordingly.
Hence, it is ordered,
that the case no. 403 of 2010 is dismissed on contest against the o.p.s without cost.
Supply certified copy of this order to the parties free of cost.
