Chandigarh

DF-I

CC/934/2022

ASHWANI KUMAR - Complainant(s)

Versus

Brig DR. H.S. BHATOE - Opp.Party(s)

ANIL KUMAR BHAI & GULSHAN KUMAR

27 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/934/2022
Date of Institution	:	22.11.2022
Date of Decision	:	27/9/2024

 

1. Ashwani Kumar S/o Late Sh. Manzur Gill R/o # 565, Setor-11B, Chandigarh.

Complainant

 

Versus

 

1. Brig Dr. H.S. Bhatoe, (Neurosurgery & Spine Surgery) Director, Max Super Speciality Hospital, Near Civil Hospital, Phase-6, Sector-56, SAS Nagar, Mohali.

2. Dr. Vipul Gupta, Neurosurgery, Max Super Speciality Hospital, Near Civil Hospital, Phase-6, Sector-56, SAS Nagar, Mohali.

3. Max Super Speciality Hospital, Through Dr. Ankush General Manager, Near Civil Hospital, Phase-6, Sector-56, SAS Nagar, Mohali.

4. United India Insurance Company Ltd. MO Office at 44/2, Vhunch Road, Bhopal Near Lajpat Nagar, SouthDelhi-110014 Delhi.

5. ICICI Lombard General Insurance Co Ltd.

(i) Reg. Office:- Sidhivinayak Temple Prabhadevi, Mumbai-400025.

(ii) 414, Veer Savarkar Marg, Near Sidhivinayak Temple, Prabhadevi, Mumbai-400025

6.   The New India Assurance Co. Ltd. Issuing Office 301, R.G. City Centre, LSC, Block-B, Lawrence Road, New Delhi-110055.

...Opposite Parties

 

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR SURESH KUMAR SARDANA	MEMBER MEMBER

                       

ARGUED BY	:	Sh.Anil Kumar Bhai & Guomhan Kumar, Advocates for the complainant. Sh.G.S.Rangi, Adv. for OPs No.1 to 3 Sh.Vinod Chaudhary, Adv. for OP No.4 Sh.Sahil Abhi, Adv. for OP No.5 Sh.Madan Lal Chaudhary, Adv. for OP No.6
	:

Per SURESH KUMAR SARDANA, Member

     Briefly stated that the complainant was suffering with on and off back pain, for which he was already getting Physiotherapy and visited Opposite Party No-1, at Max Super Specialty Hospital, Phase-6, Mohali, on 22/10/2021 for consultation and opinion with MRI (film & report), During consultation Opposite Party No-1, saw MRI, films & report and without referring any medication or physiotherapy suggested direct surgery to Complainant to get permanent release from back pain. On asking about side effects and duration of healing, OP No-1, assured to complainant for proper healing in four weeks after surgery and assured for no side effect or after effect. OP No-1, emphasized complainant that he needs to go for surgery as soon as possible. On asking for procedure of surgery, complainant hesitate to opt open spine surgery and told OP no-1, that 'He is interested in 'Endoscopic Spine Surgery procedure i.e., latest technique of spine surgery. But, OP no -1, deceived complainant with statement that 'in endoscopic surgery procedure most of the time one piece of disc remains inside body, which leads serious problem to patients for lifetime'  on the continuous insistence of OP No-1 the complainant agreed for surgery. On 24/02/2022, OP No-1, admitted complainant in the hospital to be operated on 26-02-2022 and operated upon L4/L5 left side of spine of complainant on 26/02/2022. Next day on 27.02 2022 complainant felt an acute pain in his right leg, but on complaining Dr. H.S. Bhatoe, took it lightly and advised pain killers to Complainant. But Complainant's right leg pain continued for another 2-3 days, but OP No-1, totally ignored the condition of complainant and instead of treating pain of right leg he charged Rs.3,25,130/- and discharge complainant from hospital with the assurance that this pain is easily curable with pain killers and further advised to revisit after 15 days. By reaching home pain in right leg of complainant got more acute and intolerable, hence complainant contacted Dr. Bhatoe on telephone, but OP No-1, keep telling to have pain killers to break circle of pain. On dated 8.3.2022 as prescribed by OP No.1 for follow up, complainant visited at his OPD in Max Hospital, and narrated his miserable condition due to acute pain, but OP No-1, took it very lightly and simply prescribed medicines ignoring deteriorated condition of complainant with pain in right leg of complainant. Thereafter, complainant's condition got worst day by day, even he was unable to get up from bed and Intensity of pain arose upto the extent that it raises even with a little moment of body Such worst condition of Complainant due to pain in right leg and with constant screaming of complainant destroyed his family's peace of mind and Complainant was even unable to get up from bed and totally dependent on family to get up or going to washroom etc. On 15.03.2022 the complainant again visited OP No.1 who advised him to get fresh MRI. After seeing the MRI OP No-1, said that one piece of disc have been overlooked and left inside the body, which is creating pain and advised immediate second Laparoscopy surgery for removing the piece of disk from complainant's body and said that "this has never happened before in entire my career and it needs to be removed immediately by second Laparoscopy surgery only". Complainant had No option rather to believe OP No.1, As Complainant was suffering with acute pain which was unbearable, and he agreed for the second Laparoscopy surgery suggested by OP No.1. As per advise of OP No.1 Complainant was again admitted in Max Hospital on 16.03.2022 to be operated on 17.03.2022.. Thereafter, OP No.1 along with OP No.2 operated the complainant on 17.03.2022 and charged Rs.2,96,874/-.  Immediately after recovering out of anaesthesia in recovery room complainant felt that there is no moment in his left leg and lower part of body is numb and there was only little moment in right leg. Complainant screamed and shouted in recovery room. On listening screaming of complainant OP No-2, (Dr. Vipul Gupta), who was present there, checked complainant and found that his left foot is totally dropped. Then complainant fell into deep sleep due to effect of anaesthesia. When got up he was in his ward room, Complainant tried hard to ask to Hospital Staff to call Dr. H.S. Bhatoe, even on repeated requests by Complainant OP No-1, never turned to see complainant after surgery whereas the OP no.2 Dr. Vipul Gupta visited to check to Complainant, thereafter, as per advised Complainant remained 3 days in the hospital after surgery but OP No.1 (Dr. Bhatoe) never visited to see the patient, whereas Complainant time and again was complaining the numbness of his lower part and his dropped foot, by seeing Complainant's condition OP No-2 (Dr. Vipul Gupta) called the physiotherapist and tried to make him stand from the bed but Complainant was unable to stand up because his lower part was numbed and left leg had been almost paralysed. After that on the instructions of Of No.1, hospital's untrained staff removed the catheter in a cruel manner, which caused running urine problem to Complainant, which is continuing till date and Complainant has to use dippers. Complainant explained all these complications to the hospital staff and OP no.2 but Of No. 1 & 2 did not pay any heed toward the complaint's complications with which Complainant was suffering. All these complications created due to negligent act of OP No-1 & 2, traumatized complainant with fear of permanently paralytic conditions, Complainant was discharged against his will from hospital on 20.3.2022 after prescribing some medicines. Physiotherapy and instructed for follow up on 29.3.22. The complainant was almost bed ridden, shocked and depressed He was not in position to sit or walk independently, even family of complainant, hoping for some good result of treatment and brought complainant to OPD on wheel chair on 29/01/2022 for follow up and after checking to complainant, OP No.1, admitted that 'second surgery effected the nerves which leads to numbness and dropped foot and prescribed again medicines and send back to complainant and asked for next follow up after one month. As per doctors' advice my client booked appointment on 27.4.22 and again visited the hospital but OP No. 1 was not there and therefore OP No. 2 (Vipul Gupta) attended him and again prescribed medicines and asked to come after one month again. On next visit on 25.05.2022 when complainant pressurized OP NO.1 to know the vital truth about what actually has happened with him during second surgery by which his lower part of body has gone numb, left foot feel, no sensations feeling of urine, tilting of spine towards right side and consisting constipation but instead of giving honest reply or satisfying to Complainant, OP No-1 advised and referred complainant to get checked by Dr. Gursimran (Neurologist) for numbness and also referred to Dr. Rai (Urologist) for urine problem.  As per prescription and advised by OP No.1, complainant had hired a physiotherapist at the cost of Rs.600/- per day to visit daily at home for physical therapy, with the effortful and honest hard work of physiotherapist complainant starts standing and walking few steps with the help of steel walker and also numbness in right side of lower body decreased. Thereafter, as complainant started walking with steel walker but within two three days complainant felt same pain in his right leg and even with the light movements Complainant's right leg had worst pain than earlier, when Complainant's pain became totally unbearable he Complainant again on
14-06-2022 visited OP NO.1 at Max hospital asked to OP No.1 "why the pain is accrued again but OP No. 1 instead of giving any solution, suggested to complainant for fresh MRI, Complainant got done the MIR. Even OP No.1, did not reply of tilting spine towards right side and increasing pain day by day. OP No.1, simply said it will be cured very soon.Medical leave of complainant was also exhausted so he requested OP NO.1, to write bed rest on medical ground as complainant was unable to resume duties because his body had become so weak, he could not wear shoes with the dropped foot and was unable to dress up and also facing urine & stool problems but OP No.1 refused to prescribe more medical leaves and asked complainant to resume his duty. The Complainant remained in miserable condition and was totally dependent on attendants, Thereafter the complainant visted another Doctor, Orthopaedic surgeon who revealed that in such case surgery was not necessary, which had been done deliberately by OP No.1 to grab Complainant's medical insurance cover, with complete negligence, Which leads to deficiency in his service. Alleging the aforesaid act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed.

2. The Opposite Parties NO.1 &3 in their reply, which has also been adopted by OP No.2 stated that the complainant had suppressed the material facts from this Commission as the Complainant was initially evaluated in Neuro surgery OPD on 22-10-2021 with history of Sciatica (L) and foot drop at that time, Clinical examination revealed that he could walk with slight limp due to foot drop. Power in left foot dorsiflexion was MRC Grade 1/5. He was an old patient of fracture neck femur on the right side that had continued to restrict his activities. His neuroimaging showed Prolapsed intervertebral dise L3/L4. A description about the problem, the appearance of the problem on MRI and the surgical procedure needed were discussed in layman's language, with the anticipated postoperative course. He was advised surgery, which he declined and did not report for follow up until 01.02.2022.It is worthwhile to mention here that the Complainant again reported to the OP No.1/ Brig Dr. H S Bhatoe on dated 01.02.2022 with chief complaints of sciatica and foot drop, thereby underscoring the need for surgery, which was advised earlier too. However, since at that time also, he was advised to admit in hospital on next day but he did not turn up and lastly approached the hospital on dated 24.02.2022, he was admitted in hospital with complaints of pain in lower back from 5-6 months, left leg pain from 1 month, difficulty in walking and loss of sensations in left leg from 1 month. MRI lumbar spine done on same day i.e. 24.02.2022, which showed lumbar spondylosis with L2-3, L3-4 and L4-5 disc desiccation with L5-S1 annular tear. L3-4 central and right paracentral disc extrusion indenting thecal sac and causing spinal canal narrowing with compression of right traversing nerve.- L4-5 disc bulge indenting thecal sac causing bilateral neural foramina narrowing with possible compression of bilateral traversing nerves-L5-S1 disc bulge indenting thecal sac causing bilateral neural foramina narrowing. As per history, complaint was operated for fracture neck femur in 2010. As per the records maintained by the hospital in due course of its business, it is submitted that complainant was 50 years old and presented to op no.3 with the abovementioned complaints. Complainant was thoroughly examined and all relevant investigations were done. Complainant was diagnosed with prolapsed intervertebral disc 13/14,14/15. Complainant was planned for surgery, which was done on 26.02.2022. Hemilaminectomy L3, L4 (L) and discectomy L4/L5, L3/L4. Complainant was then discharged on dated 01.03.2022 in hemodynamically stable conditions with the discharge advice. As per the records maintained by the hospital in due course of its business, it is submitted that Complainant had pre-existing foot drop on the left side and left sided sciatica on admission in the hospital. On 27/2/2022, the complainant mentioned pain in the right lower limb, which was duly taken care of and analgesic medication was prescribed. OP No.1 visited the complainant twice a day each time enquiring about pain, which the complainant said was resolving. No symptom was ignored. He was discharged with assurance that pain will get relieved with analgesic medication and rest. Pain in the right leg began much later. Complainant was free from preexistent sciatica after surgery. Postoperative pain is managed with analgesic drugs ("pain killers"). He was able to walk when discharged. Post-operative pain in the back or leg can be seen after disc surgery and has varied actiology. Therefore, an expectant line of management with analgesics and reassurance is followed and in majority of the patients the pain subsides after few days. The same approach was followed in the case of the complainant when he reported for review on 08/3/2022, and he came walking to OPD. The complainant was again admitted on 16.03.2022 with a k/c/o prolapsed intervertebrsl discs L3/L4, L4/L5, post hemilaminectomyL3,L4 (1) and discectomy L4/L5, L3/L4 on 26.02.2022. patient now presented to Hospital with C/O:-pain in right lower limb, sharp in nature, moderate to severe in intensity, aggravating on walking, associated with difficulty in sitting or lying down relieved by medications but now increasing in severity since 1 week., complainant gave h/o surgery of femur neck fracture in 2010, MRI lumbar spine done on same day which revealed Lumbarspondylosis with degenerative disc disease with L3-4 and L4-5 left hemi-laminectomy with T2/STIR hyperintense collection in leftepidural space extending posteriorly through hemi-laminectomy defect alongthe spinous process-L3-4 posterior annular tear central and diffuse disc bulge indenting thecal sac and causing spinal canal narrowing and abutting bilateral exiting nerve roots- L4-5 posterior annular tear central and diffuse disc bulge indenting thecal sacand causingspinal canal narrowing and abutting bilateral exiting nerve roots -L5-S1 posterior annular tear and asymmetric disc bulge indenting thecal sac and causing bilateral neural foramina (left>right) narrowing and compressing the left exiting andtraversing nerve roots. The complainant was operated for Laminectomy L3, Discectomy L3/L4 by following the protocols and discharged in haemodynamically stable conditions with discharge advice. It is alleged that the complainant has concealed material facts from this  Commission and had pre-existing foot drop and the same was not surgery effect. All other allegations made in the complaint has been  denied being wrong.
3. OP No.4 in filed reply taking stand on the line of reply filed by OPs No.1 to 3 and stated that there is absolutely no negligence in the treatment provided to the insured. However,   if still this Commission comes to the conclusion that there had been some deficiency of some sort, then in that event it will be right and proper to apportion the liability amongst the various OPs arrayed in the array of parties. 
4. OP No.5 in its reply  stated that the complainant is not a consumer as defined under the Consumer Protection Act as the complainant has not hired the service of answering respondent No.5 for consideration and there is no privity of contract of insurance between the complainant and answering OP  No.5 i.e. The privity of contract of insurance if any, is between OP No. 2 and OP No.5. The insurance policy is a contract in itself and both the parties to contract are bound by the terms and conditions of the contract. Nothing can be added or subtracted out of the same. The present compliant as such deserves dismissal on this score only.
5. OP No.6 in its reply stated that the answering OP has issued "PROF. INDEMNITY (MEDICAL ESTABLISHMENTS) POLICY" to Home Trail Buildtech Pvt. Ltd. policy number 93000036210200000024 for the period of 20.09.2021 to 19.09.2022 subject to certain terms and conditions, exceptions/exclusions etc. of the said policy of insurance. It is pertinent to mention here that the policy is an Indemnity Policy and if, this  Commission comes to the conclusion that there is any negligence on the part of OP No.6 and any compensation is passed in favour of the complainant then the same would be borne by the insured itself and the answering OP shall reimburse the insured subject to the policy cover limit and other terms and conditions of the policy to the extent of its limited liability as mentioned in the policy. The complainant cannot seek any compensation from the answering OPNo.6 as there is no any connection, agreement or contract between the answering OP and the complainant as such the complaint should be dismissed against the answering OP on this ground alone.
6. Rejoinder was filed and averments made in the consumer complaint were reiterated.
7. Contesting parties led evidence by way of affidavits and documents.
8. We have heard the learned counsel for the contesting parties and gone through the record of the case.
9. The main grievance of the complainant is that as per advice of the doctors of OPs No. 1 to 3 and inspite of having done two spine surgeries by them no substantiate improvement was noticed rather the health conditions of complainant deteriorated further and he developed various complications and when the complainant visited another orthopedic surgeon it was revealed that in such case surgery was not necessary. 

 

 

10. With regard to first allegation we have perused reply of OPs No. 1 to 3 and it is observed that complainant was earlier also operated for fracture neck femur in 2010. It is also observed that the complainant was also having pre-existing foot drop on the left side and left sided sciatica on admission, which was initially evaluated in the neurosurgery OPD on 22/10/2021.  First surgery was performed  on complainant on 26.2.2022 and after subsequent evaluation of the patient/complainant the OPs No.1 to 3 performed second surgery on 17.3.2022.  Regarding the allegation with regard to kind of surgery to be performed or whether the patient is a candidate for microdiscectomy and endoscopic surgery, we are of the view that this decision  is to be made by the neurosurgeon and not by the patient, depending upon the patient’s physical and clinical profile  and the neuroimaging appearances.
11. We have also perused Annexure R-9 which is a informed consent  high risk cases duly signed by the complainant himself, wherein the OPs No. 1 to 3 have made him aware of the risks/complications of the procedures.  The relevant portion of the same is reproduced as under:

 

“Patient Consent:

5. I have been provided with and explained the Anesthesia Informed consent form.
5. The doctor has explained my medical condition and proposed treatment/procedure. I have been explained and have understood the risks known to be attached with the planned treatment/procedure including the risks that are specific to me, and their likely outcomes.
5. The doctor has explained other relevant/alternate treatment options and their associated risks. The doctor has also explained the risks of not having the procedure. I have been given the choice to take a second opinion.
5. I was able to ask questions and raise concerns with the doctor about the procedure and its risks, and my treatment options. My queries and concerns have been discussed and answered to my full satisfaction.
6. I consent to the administration of such drugs, Infusions, plasma or blood/blood products transfusions or any other treatment/procedure deemed necessary in the judgment of the medical staff.
5. I understand that if organs or tissues are removed during the surgery that these may be retained for tests and shall be disposed of sensitively by the hospital as per the regulatory provisions.
5. The doctor has explained and it has been agreed to me that if immediate life-threatening events occur during the treatment/procedure, they will be treated according to the prevalent medical norms.
5. It has been explained to me, that during the course of or subsequent to the Operation/Procedure, unforeseen conditions may be revealed or encountered which may necessitate urgent surgical or other procedures in addition to or different from those contemplated. In such exigency, I further request and authorize the above named Physician/Surgeon or his designee to perform such additional surgical or other procedures as he or they consider necessary or demicable in my interest. I understand and agree that in such condition there will be no requirement. of any additional consent from me or my family members/attendants.
5. I declare that no guarantee of what so ever nature has been given by anyone as to the results that may be obtained.
5. I consent to if any photographing or televising of the operation(s) or procedurels) to be performed, including appropriate portions of my body, for medical, scientific or educational, and marketing purposes. However suitable precautions shall be taken by the hospital that my identity is not revealed anywhere.
5. For purposes of advancing medical education, I content to the admittance of observers to the operating roomI understand that I have the right to refuse treatment or withdraw consent at any time. I agree that any such refusal/withdrawal shall be in writing and acknowledged by the Hospital. And I shall be solely responsible for the outcome of such refusal.

   IT HAS BEEN EXPLAINED TO ME THAT RISK OF THE OPERATIVE/ POST OPERATIVE COMPLICATION/MORTALITY IS HIGH I CERTIFY THAT I HAVE READ AND FULLY UNDERSTOOD THE ABOVE CONSENT, THAT THE EXPLANATIONS THEREINREFERRED TO WERE MADE AND THAT ALL BLANKS OR STATEMENTS REQUIRING INSERTION OR COMPLETION WEREFILLED IN AND ANY INAPPLICABLE PARAGRAPHS STRICKEN BEFORE I SIGN ED.”

12. Hence, we are not convinced with the stand of the complainant that his health condition deteriorated further and developed various complications as the complainant was made aware of the same, as per above consent. Moreover, the complainant has failed to adduce any documentary evidence or opinion of any other expert doctor in this regard. With regard to second allegation of the complainant about visiting on orthopedic surgeon, who revealed him that in such case surgery was not required, the complainant  has failed to adduce any documentary evidence to prove the said plea.
13. We are supported by the ratio of law laid down by the Hon’ble Supreme Court of India in Dr. Harish Kumar  Khurana Vs. Joginder Singh  &  Ors., Civil   Appeal   No. 7380  of  2009  decided  on 07.09.2021. Relevant part of the said order is reproduced hereunder:-

 “….To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception. In the instant case, apart from the allegations made by the claimants before the NCDRC both in the complaint and in the affidavit filed in the proceedings, there is no other medical evidence tendered by the complainant to indicate negligence on the part of the doctors who, on their own behalf had explained their position relating to the medical process in their affidavit to explain there was no negligence ….”

2.      Here we may also like to refer case titled as Dr.Laxman Balkrishna Joshi vs. Dr.Trimbark Babu Godbole and Anr., AIR 1969 SC 128 and A.S.Mittal v. State of U.P., AIR 1989 SC 1570, wherein, it was laid down by the Hon’ble Supreme Court that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In the aforementioned case, the apex court interalia observed that negligence has many manifestations – it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence, or negligence per se. Black's Law Dictionary defines negligence per se as “conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of statute or valid Municipal ordinance or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.” Thus, it has been made clear by the Hon’ble Supreme Court of India that a doctor owes to his patient certain duties of care in deciding whether to undertake the case and duty of care in the administration of that treatment and any breach thereof may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In the present case, the OPs did not fail in their duties to take due care of the Complainant. 
3. Moreover, it is well settled legal position in medical negligence law that only expectation from a treating doctor is that whether he has discharged his duty of reasonable care and skill and treated the patient as per standard medical protocol and thereafter, irrespective of the consequence of such treatments the courts cannot hold the doctor guilty of any medical negligence solely on the basis of the outcome of such treatment. Record shows, the OPs No. No.1 to 3 had given treatment to the Complainant with all responsible skills and competence. In these conditions, no negligence can be attributed on the part of the OPs No. 1 to 3, unless certain practice or procedure by the doctor is proved by the Complainant which gives rise to an interpretation that the doctor was negligent in treating the patient.
4. In Devarakonda Surya Shesh Mani and Ors. Vs. Care Hospital, Institute of Medical Sciences and Ors., IV (2022) CPJ 7 (SC), the Hon’ble Supreme Court held that the mere allegations of medical negligence are not sufficient but the Complainant should prove it by positive evidence which leads to conclusion that the doctor failed in his duty towards the patient in a case of medical negligence.
5. Relying upon the aforesaid judgment of the Hon’ble Apex Court, we are of the view that the Complainant has not given ample evidence from which it may be concluded that any medical negligence has been committed by the OPs No. 1 to 3 on the treatment of the Complainant, hence, to our mind it would be hypothetical assumption to form a view of lack of due medical care or that the Ops No. 1 to 3 were negligent to perform their duties or any treatment.   

 

6.      Before coming to a conclusion, it is necessary to mention here that the skill of a medical practitioner 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 advisable for treating a patient. The Hon’ble Apex Court in catena of cases has held that the Courts should be slow in attributing negligence on the part of a doctor, if he has performed his duties to the best of his ability and with due care and caution. The negligence must be established and not presumed. A bonafide mistake is excusable, but a mistake which would tantamount to negligence cannot be pardoned. If it is an error that such a man, acting with ordinary care might have made, then it is not negligence. Balom’s test, which is recognized in various pronouncements of Hon’ble Supreme Court, makes it clear that the medical practitioner must do his take with 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. However, gross medical mistake will always result in finding of negligence and in some situations principle of Res ipsa loquitur can be applied. In Bolam Vs. Friern Hospital Management Committee, (1957) 1 WLR 582, it was held that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body or medical men skilled in that particular field.
7. In Martin F.D’Souza Vs. Mohd. Ishafq, I (2009) CPJ 32 (SC), the Hon’ble Supreme Court in Para 17 has held that: -

“Medical practitioner not liable for negligence simply because things went wrong from mischance/ misadventure through error of judgment and the medical practitioner would be liable only where his conduct fell below that of standards of reasonably competent practitioner in his field and simply because patient not favourable responded to the treatment given by doctor or surgery failed, doctor cannot be held straightaway liable for medical negligence by applying doctrine of Res ipsa loquitur.”

 

8.  Further, in Jacob Mathew Vs. State of Punjab & Anr., III (005) CPJ 9 (SC) 122, the Hon’ble Supreme Court realizing that doctors have to be protected from frivolous Complaints of medical negligence, laid down certain rules in Para 49 of its judgment:-

“49. (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.” 

 

 

9.      In Dr. (Mrs.) Chanda Rani Akhouri and Others Vs. Dr. M.A. Methusethupathi & Others, Civil Appeal No. 6507 of 2009 decided on 0.04.2022, the Hon’ble Supreme Court observed as under: -

 

“27. It clearly emerges from the exposition of law that a medical practitioner is 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 to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.”

 

 

10.      In Ms. Ins. Malhotra Vs. Dr. A. Kriplani & Others, II (2009) PJ 18 (SC), the Hon’ble Apex Court laid down principle for assessing negligence of a doctor. Relevant part of the judgment is extracted below:-

“Negligence in the context of the 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.” 

 

 

11.      In “Kusum Sharma Vs. Batra Hospital and Medical Research Centre”, 2010 (3) SCC 480, the Hon’ble Supreme Court held as under: -

 

 “……….As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence.”

 

12.      In “V. Kishan Rao Vs. Nikhil Super Speciality Hospital”, (2010) 5 SCC 513, , the Hon’ble Supreme Court held as under: -

 “47. In a case where negligence is evident, the principle of Res ipsa loquitur operates and the Complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the Respondent to prove that he has taken care and done his duty to repel the charge of negligence.”

 

 

13.      In the instant case, we do not find any concrete evidence available on record from which we can come to a conclusion that any medical negligence has been committed by the OPs No. 1 to 3 while treating the Complainant in the hospital. Whatever the treatment was provided to the Complainant the same was as per the line of treatment prescribed under the medical norms. 

15. In these set of circumstances, it can safely be concluded that there has been no deficiency in service on the part of OPs  and the whole gamut of facts and circumstances leans towards the side of the Ops. The case is lame of strength and therefore, liable to be dismissed.
16.     Taking into consideration all the facts and circumstances of the case, we have no hesitation to hold that the Complainant has failed to prove that there has been any medical negligence on the part of the OPs No. 1 to 3. As such, the Complaint is devoid of any merit and the same is hereby dismissed, leaving the parties to bear their own costs.

			[Pawanjit Singh]
			President
			[Surjeet Kaur] Member
27/9/2024			[Suresh Kumar Sardana]
mp			Member