Haryana

StateCommission

A/617/2015

DR.NEELAM KAKKAR - Complainant(s)

Versus

BHARAT KUMAR - Opp.Party(s)

ROHIT GOSWAMI

22 Sep 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeals No: 616,617 & 625 of 2015

Date of Institution: 22.07.2015 & 27.07.2015     

Date of Decision: 22.09.2015      

 

Appeal No.616 of 2015

 

1.      Bharat Kumar son of Shri Kishan Chand, Resident of Saini Mohalla, Kaithal, District Kaithal.

 

2.      Juna Devi (Deceased) wife of Bharat Kumar through her legal heir Nischal Shareshth (minor) s/o Sh. Juna Devi, deceased, through Bharat Kumar s/o Sh. Kishan Chand, being his natural guardian.

                                      Appellants-Complainants

Versus

 

1. State of Haryana through Collector, Kaithal.
2. Dr. Neelam Kakkar, Medical Officer, Civil Hospital, Kaithal.
3. The New India Assurance Company Limited through its Branch Manager, 510/4, Gobind Nagar, Pehowa Chowk, Kaithal.

                                      Respondents-Opposite Parties No.1,3 & 8

4. Civil Surgeon, Kaithal.
5. Dr. B.B. Kakkar, Medical Officer, Civil Hospital, Kaithal.
6. Dr. Hazari Lal, Medical Officer, Civil Hospital, Kaithal.
7. Dr. R.D. Chawla, Medical Officer, Civil Hospital, Kaithal.
8. Dr. R.C. Mittal, C.M.O., Civil Hospital, Kaithal.

Performa Respondents-Ops No.2,4,5,6& 7

 

Present:               Shri Tarun Gupta, Advocate for appellants.

S/Shri Wazir Singh, Advocate & Rohit Goswami, Advocate for respondents No.1 and 2.

Shri J.P. Nahar, Advocate for respondent No.3.

Respondents No.4 to 8-performa.

 

Appeal No.617 of 2015

 

1. Dr. Neelam Kakkar w/o Dr. B.B. Kakkar, Senior Medical Officer, CHC, Pehowa, District Kaithal.  
2. State of Haryana through Dr. Neelam Kakkar, Senior Medical Officer, CHC, Pehowa, District Kaithal.

Appellants-Opposite Parties 1 & 3

Versus

1. Bharat Kumar son of Shri Kishan Chand, Resident of Saini Mohalla, Kaithal, District Kaithal.
2. Nischal Shareshth (minor) through his father Shri Bharat Kumar s/o Sh. Kishan Chand, Resident of Saini Mohalla, Kaithal.

Respondents-Complainants

3. Civil Surgeon, Kaithal.
4. Dr. B.B. Kakkar, Medical Officer, Civil Hospital, Kaithal.
5. Dr. Hazari Lal, Medical Officer, Civil Hospital, Kaithal.
6. Dr. R.D. Chawla, Medical Officer, Civil Hospital, Kaithal.
7. Dr. R.C. Mittal, Senior Medical Officer, Civil Hospital, Kaithal.
8. The New India Assurance Company Limited, through its Branch Manager, 510/4, Gobind Nagar, Pehowa Chowk, Kaithal.

Performa Respondents- Ops No.2, 4, 5, 6, 7&8

 

Present:     S/Shri Wazir Singh, Advocate & Rohit Goswami, Advocate for appellants.

Shri Tarun Gupta, Advocate for respondents No.1 and 2.

Shri J.P. Nahar, Advocate for respondent No.8.

(Service of respondents No.3 to 7 dispensed with).

 

Appeal No.625 of 2015

The New India Assurance Company Limited, through its Branch Manager, 510/4, Gobind Nagar, Pehowa Chowk, Kaithal.

Now through its authorized signatory, Tarsem Chand, Deputy Manager, Regional Office, SCO No.36-37, Sector 17-A, Chandigarh.

Appellant-Opposite Party No.8

Versus

1. Bharat Kumar son of Shri Kishan Chand, Resident of Saini Mohalla, Kaithal, District Kaithal.
2. Juna Devi (Deceased) wife of Bharat Kumar through her legal heir Nishal Shareshth (minor) s/o Sh. Juna Devi-deceased, through Bharat Kumar s/o Sh. Kishan Chand, being his natural guardian.

Respondents-Complainant

3. State of Haryana through Collector, Kaithal.
4. Civil Surgeon, Kaithal.
5. Dr. Neelam Kakkar, Medical Officer, Civil Hospital, Kaithal.
6. Dr. B.B. Kakkar, Medical Officer, Civil Hospital, Kaithal.
7. Dr. Hazari Lal, Medical Officer, Civil Hospital, Kaithal.
8. Dr. R.D. Chawla, Medical Officer, Civil Hospital, Kaithal.
9. Dr. R.C. Mittal, Senior Medical Officer, Civil Hospital, Kaithal.

Performa Respondents- Ops No.1 to 7

 

CORAM:             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member                      

 

 

Present:     Shri J.P. Nahar, Advocate for appellant.

Shri Tarun Gupta, Advocate for respondents No.1 and 2.

S/Shri Wazir Singh, Advocate & Rohit Goswami, Advocate for respondents No.3 to 5.

(Service of respondents No.6 to 9 dispensed with).

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This order shall dispose of afore-mentioned three appeals bearing No.616,617 and 625 of 2015 having arisen out of the common order dated June 8^th, 2015, passed by District Consumer Disputes Redressal Forum (for short District Forum), Kaithal, whereby Consumer Complaint No.268 of 2003, filed by complainants, seeking compensation alleging medical negligence and deficiency in service on the part of opposite parties, was allowed, directing as under:-

“……..the present complaint is accepted against the respondents No.1, 3 & 8 who shall pay the amount of compensation of Rs.5.00 lacs and Rs.5,000/- as litigation charges and costs. Let the order be complied with within 30 days, failing which, the complainants shall be entitled interest @ 8% p.a. on the awarded amount from the date of order till its realization.”

2.      Briefly, the facts stated in the complaint are that Juna Devi-complainant No.2, was pregnant. On 21.01.2003 she having suffered labour pain, was brought to Civil Hospital, Kaithal at 9.30 A.M. She was examined by Dr.Neelam Kakkar-Opposite Party No.3 and prescribed medicines and bed rest for 15 days. However, when the condition of the patient became critical, she was admitted in hospital. Ultra Sound Examination was got conducted the report of which was received at 12.15 P.M. After examining the report, it was observed that it was a case of previous Lower Segment Caesarean section. Dr. Lajja Ram examined the patient at 12.23 P.M. and desired her to visit again after full bladder. Scar thickness of Uterus was observed to be 4 mm which revealed that uterus was OK. Dr. Neelam Kakkar, carried the patient to operation threatre. Dr. R.C. Mittal, S.M.O. Civil Hospital, Kaithal (Anaesthetist) administered spinal anesthesia to the patient at 4.00 P.M. However, during operation, the child in the womb died. The complainants alleged that the child died due to negligence on the part of the treating doctors-opposite parties. By filing complaint, they sought compensation of Rs.18.00 lacs from the opposite parties.

3.      The opposite parties contested complaint. Opposite Parties No.1 and 2 in their joint written reply stated that Juna Devi-patient was brought to General Hospital, Kaithal for delivery on 21.01.2003. she was attended by Dr. Neelam Kakkar, who had been treating the patient previously also. The opposite parties No.4 and 5 had nothing to do with the patient. Dr. R.C. Mittal is a specialist in Anesthesia and remained present in the operation theatre at the time of operation. The opposite party No.6 was called when the patient had suffered cardiac arrest during surgery. The opposite parties No.6 and 7 got the Cardiac resustciation and controlled the patient first. Dr. R.D. Chawla, removed the already expired child from the uterus and thereafter the patient was shifted to causality ward after stitching etc. The patient was being treated, handled and operated upon by Dr. Neelam Kakkar, independently.  The opposite party No.3 was in service for the last sixteen years out of which she had served with the Gyane departments for the last ten years. She had been conducting tubectomy operation and other operations independently and efficiently. During the operation, the uterus was found ruptured and the patient also got Cardiac arrest suddenly. Dr. R.C. Mittal, immediately handled the patient to revive and also called for the surgeon Dr. R.D. Chawla, who was on emergency duty, for help. Both the doctors adopted the Cardiac resuscitation measure and revived the patient for cardiac arrest. Dead child was delivered. Two units of blood were administered to the patient. After operation, the patient was shifted in emergency with normal BP and respiration etc. Dr. Hazari Lal-opposite party also examined the patient after operation and seeing the condition of patient, consulted the doctors of Medical College, Rohtak, telephonically and as per advice put the patient on ventilator, which was available with ‘Shah Hospital, Kaithal’. After four weeks, the patient was referred to Medical College, Rohtak. There was no negligence on the part of the opposite parties.

4.      Opposite Parties No.3 and 4 in their joint reply stated that the complainant No.2 (patient) had been regularly visiting the opposite party No.3. She had visited during third week of October, 2002. At that point of time, report for USG was obtained and pregnancy of 24 weeks was observed. The patient was advised rest and prescribed medicines for 15 days. The patient again visited on 07.11.2002 and thereafter on 05.12.2002. Thereafter, the patient visited on 21.01.2003 at 11.40 A.M. with the same old OPD slip. Before operation, Dr. R.C. Mittal, had given anesthesia and he remained present in the operation theatre during operation. All the necessary tests were got carried out before operation was conducted. The patient had unfortunately and suddenly suffered Cardiac Arrest during the process of operation. All the medical and surgical procedures were carried out inside the operation threatre where no body on behalf of the patient was present and the patient’s relatives were unable to see any kind of medical and surgical procedure or what exactly happened inside the operation threatre, as alleged.

5.      The opposite party No.8-Insurance Company while relying upon the version of the treating doctors, denied any kind of negligence and deficiency in service and prayed for dismissal of the complaint.

6.      Vide impugned order, the District Forum allowed complaint and issued direction as detailed in paragraph No.1 of this order.

7.      While assailing the impugned order, learned counsel for the opposite parties-appellants argued that neither any expert opinion nor evidence to prove the medical negligence and deficiency in service on the part of opposite parties, has been produced and therefore, the order of the District Forum is liable to be set aside.  

8.      It is not disputable that every complainant has to succeed on the strength of his/her own merits. In the case of medical negligence, the specific allegations regarding negligence on the part of doctor/s have to be proved, the onus of which lies upon the complainant. In cases of medical negligence, a professional charged with negligence is to show that he acted in accordance with general and approved practice. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. The doctor no doubt has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In the context, as to what constitute ‘Medical Negligence’ Hon’ble Supreme Court has laid down the law in “Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1” as under:-

“1. Negligence is the breach of a duty caused 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.

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. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while 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.

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, 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.

4. The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.”

5. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law my not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

6. The word ‘gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ‘grossly.’

7. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did 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. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

          8. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsaloquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

In Jacob Mathew (supra) the three Judge Bench of Hon’ble Supreme Court elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury’s Laws of England (4^th Edn., Vol.30, para35), 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; …”

9.      In MARTIN F. D’SOUZA versus MOHD. ISHFAQ, I(2009) CPJ 32 (SC), Hon’ble Supreme Court observed as under:-

“From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.”  

“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, 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 submission.”

 “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 straightway 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.”

10.    In Revision Petition No.1311 of 2013 titled ‘Rajiv Navath Versus Dr. Shajahan Yoosaf Sahib and others’ (N.C.), Hon’ble National Commission held as under:-

      “12. What constitutes Medical Negligence is now well established by a plethora of Rulings of the Honorable Supreme Court of India and by several orders of this Commission. In the Bolam’s case (Bolam Vs. Frien Hospital Management Committee (1957)1 WLR 582). The locus classicus of the test for the standard of care in law, required of a doctor, developed from this landmark case. Mr Justice McNair, in his direction to the jury, said:

[a doctor] is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art …Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”

11.    In S.N. SINGH (DR.) versus DEVENDRA SINGH & ANR, III(2011) CPJ 390 (NC), Hon’ble National Commission while relying upon the judgment of Hon’ble Supreme Court and held as under:-

“17.   In C.P. Sreekumar (Dr.) MS (Ortho) v. S. Ramanujam, II(2009) CPJ 48 (SC)=(2009)7 SCC 130, the Supreme Court held that bald statement of the complainant cannot be accepted to reach conclusion that the Doctor lacked expertise. It is observed that too much suspicion about the negligence of the attending Doctors and frequent interference by Courts could be a dangerous proposition as it would prevent Doctors from taking decision which could result in complications and in such a situation the patient will be the ultimate sufferer.”

12.    Hon’ble National Commission in Mohd. Abrar versus Dr. Ashok Desai and others, 2011 CTJ 613 (CP) (NCDRC) has observed as under:-

“The medical practitioners cannot be treated as magicians or demi-Gods. They are fallible human beings. The liability to pay compensation may arise only when the complainant proves that the causation was result of negligence committed by the medical practitioner and there was clear material available to foresee the injury.”

13.    In the instant case the complainants have failed to discharge burden to prove the medical negligence. A perusal of the OPD slip dated 21.01.2003 shows that the patient was examined when she came in OPD. She was examined and advised rest, ultrasound and other tests.   Had she been in distress at that time,   she could have pointed out and could have been admitted at that time.  Thus, it raises an inference that after she left the hospital, she developed some problem and was again brought back at 11.50 A.M.  when after ultrasound,  which opposite party No.3  got  done  on  priority  and  the patient requiring immediate procedure for delivery,  messages were sent to Dr. R.D. Chawla, opposite party No.7 - Senior Medical Officer, who happened to be Anaesthetist.  The patient was taken to operation threatre where she delivered a still born child. It is also not dispute that it was during the operation that the patient developed cardiac arrest and was successfully resuscitated by the Anaesthetist  certainly as it was the job of Anaesthetist.

14.    Onus was upon the complainant to prove as to how the opposite party No.3 was negligent and that due to her negligence still born child was delivered.  There is nothing on the record to show that the child born was already dead.

15.    It is well settled principle of law that 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 successful, much less to the extent of 100% for the person operated upon. 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 while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect.  A medical practitioner cannot 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 to 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.

16.    In view of the above, there is nothing on the record to show that any act of medical negligence and deficiency in service was committed by the treating doctors.  The ratio of the above mentioned cases fully applies to the facts of the present case. It is established that whatever best could be done by a medical practitioner, was done by the treating doctors. The District Forum has failed to appreciate the true facts of the case and the evidence produced by the parties.

17.    Hence, appeals No.617 and 625 of 2015 are accepted, impugned order is set aside and complaint is dismissed. Consequently, appeal No.616 of 2015 filed by the complainants, stands dismissed.

18.    The statutory amount of Rs.25,000/- each deposited at the time of filing appeals No.617 and 625 of 2015, be refunded to the respective appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

Announced: 22.09.2015

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

CL