Haryana

Karnal

35/2012

Rajinder Kaur Wd/o Sham Singh - Complainant(s)

Versus

Dr. O.P. Miglani, Miglani Nursing Home - Opp.Party(s)

Subhash Chander

18 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No. 35 of 2012

                                                             Date of instt.:16.01.2012

                                                              Date of decision:18.01.2017

 

Rajinder Kaur widow of late Shri Sham Singh son of Malook Chand Tuli resident of House no.19, Jarnaily Colony, Karnal.

                                                                   ……..Complainant.

                                      Vs.

1. Dr. O.P. Miglani, Miglani Nursing Home, Old Kunjpura Road, Karnal.

2. The New India Assurance Co. Ltd. Divisional Office, Karnal through its Divisional Manager (Insurer of respondent no.1)

                                                                      ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh. Subhash Chander Advocate for the complainant.

                    Sh. Rajesh Saini Advocate for the Opposite party no.1

                    Sh. Parveen Daryal Advocate for opposite party no.2.

                  

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that her husband Sham Singh got some tests conducted on 11.03.2010 and 16.03.2010, on the recommendation/consultation of the opposite party no.1. Ultrasound of the whole abdomen was also got conducted on 11.3.2010 from Guru Diagnostics Jenerally Colony, Karnal. Thereafter, she and her husband approached opposite party no.1, who suggested/recommended for removal of left kidney stone as per impression of ultrasound report. The opposite party no.1 was duty bound to inform about the details of the disease affecting her husband, the various alternatives available and the risk involved in the proposed treatment i.e. operation, but the opposite party no.1 failed to do so, which amounted to negligence of duty on his part. On being satisfied as a fit case for the conducting operation for the removal of the left kidney stone, the opposite party no.1 performed operation in his operation theatre, after getting Anesthesia/injection administered in spinal cord from the doctor of the opposite party no.1/specialist in 3^rd week of March, 2010. Thereafter, her husband remained admitted in the hospital of opposite party no.1 as per the requirement of post operation period. She always remained with her husband during operation and post operation period and they both regularly consulted and visited the clinic of opposite party no.1 on 23.3.2010, 24.3.2010, 28.3.2010, 31.03.2010, 2.4.2010, 8.4.2010 and 10.4.2010 and so on, as suggested by him during post operation period and followed the diagnose strictly. As per suggestion of opposite party no.1, her husband got various tests done on 28.3.2010, 30.3.2010, 10.4.2010, 14.4.2010, 22.04.2010, 3.5.2010 and 12.5.2010. However, her husband became bed ridden after operation since March, 2010, due to negligence in administering Anesthesia/injection in spinal cord, which ultimately turned into Aplastic Anemia. Thereafter, he husband consulted almost all local doctors/hospitals, P.G.I.Chandigarh, Jaipur Golden Hospital, Delhi, AIIMS Hospital, New Delhi and got conducted various tests after the operation conducted by opposite party no.1. Ultimately, the problem of bone marrow was detected in September/October 2010, as per report of bone marrow conducted on 14.09.2010. Predominantly Megaloblastic Marrow with Erythroid Hyperplasia  was shown in the report of PGI, Chandigarh conducted on 5.10.2010. Hypocellular marrow was mentioned in the report conducted by AIIMS, New Delhi on 7.3.2011 and it was reported completely Hypoplastic Cellular. Her husband was diagnosed for Aplastic Anemia by AIIMS Hospital, New Delhi since March, 2011, which was the result of negligence on the part of the opposite party no.1, which occurred during the operation at the time of administering Anesthesia injection in spinal cord in his hospital. Her husband remained admitted in the AIMS New Delhi from 22.08.2011 to 31.10.2011 and died due to the said illness.

                   It has further been pleaded that after the operation in March 2010, her husband remained alive on blood transfusion and 167 units of blood were transfused upto 27.9.2010, and 202 units of blood platelets upto 29.9.2010, as the platelets count remarkebly reduced and the level of Haemoglobin dropped from 13 gms/dl in march 2010 to 5.5. gms/dl in March/April, 2011 and sometime it dropped to 3 gm/ d 1. She had incurred an amount of Rs.15,00,000/- on the treatment of her husband, but despite that her husband died due to carelessness and negligent act on the part of the opposite party no.1. She approached opposite party no.1 for making payment of Rs.15,00,000/-, but opposite party no.1 postponed the matter on one pretext or the other. Ultimately, registered legal notice dated 3.10.2011was got served upon the opposite party no.1, but the same also did not yield any result.

2.                Notice of the complaint was given to opposite parties. Opposite party no.1 put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that the complaint is not maintainable; that the complainant has no locus standi and cause of action; that the complaint is bad for non-joinder of the Anesthetist as necessary party and that no opinion of any Medical Board before admitting the complaint was obtained.

                   On merits, it has been submitted that the patient and his attendant were explained the pros and cons of the surgery and their consent was obtained after explaining to them the nature of surgery and risk involved therein. The required tests were got performed and the patient was not found to be suffering from any other ailment at the relevant time, as per the tests. The patient was given Anhesthesia by qualified anesthetists i.e. Dr. Satish Khattar and after administering anesthesia, the patient was operated upon by opposite party no.1. There was no negligence in giving treatment to the patient on the part of the opposite party no.1. He was given treatment as per the standard medical protocol. There was no possibility of the patient developing Aplastic anemia, because of the treatment given by opposite party no.1. There can be several reasons for development of Aplastic anemia and development of Aplastic anemia cannot be attributed to the surgical procedure carried out by the opposite party no.1. Anesthesia was administered as per the recognized medical practices and there was no negligence in administering the same. After giving anesthesia, the opposite party no.1 performed operation for removal of the kidney stone as per the standard medical practices and there was no negligence in conducting the operation. The other allegations made in the complaint have been specifically denied.

                   Alternatively, it has also been averred by opposite party no.1 that there was no negligence on the part of the opposite party no.1, but if this forum comes to the conclusion that the complainant is entitled to compensation, then liability to pay is of opposite party no.2, with which opposite party no.1 was insured at the relevant time.

3.                Opposite party no.2 filed separate written statement disputing the claim of the complainant. Objections have been raised that the complaint is not legally maintainable in the present forum; that the complainant has no locus standi to file the complaint; that the complaint is bad for non-joinder of Anesthetist Dr. Satish Khatter, who is necessary party; that the complicated questions of law and facts are involved in the present complaint, which cannot be decided by this forum in summary proceedings; that the opposite party no.1 had not complied with the terms and conditions no.7 and 8 of the insurance policy, therefore, the opposite party no.2 is not liable to indemnify.

                   On merits, it has been asserted that there was no negligence on the part of the insured doctor and that the complainant has tried to put forward the false and concocted story with ulterior motive.

4.                In evidence of the complainant, her affidavit Ex.C1 and documents Ex.C2 to Ex.C26 have been tendered.

5.                On the other hand, in evidence of the opposite parties, affidavit of opposite party no.1 Ex.O1, affidavit of D.K.Sareen Divisional Manager Ex.OP2/A  and documents Ex.O2, Ex.O3 and policy Ex.OP2/B have been tendered.

6.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

7.                Admittedly, operation was performed by opposite party no.1 on Sham Singh, the husband of the complainant, for removal of left kidney stone, on 15.3.2010. Anesthesia for the purpose of operation was given by Dr. Satish Khatter. As per the allegations of the complainant her husband become bed ridden after the operation due to negligence of opposite party no.1 and the Anesthesia given for the operation by the doctor called by opposite party no.1. He could not recover despite getting treatment from opposite party no.1 and other hospitals and ultimately died on 31.10.2011, while admitted in the AIIMS, New Delhi. The opposite party no.1 has denied all such allegations and asserted that there was no negligence on his part or the Anesthetist and that stand medical procedure for performing operation was followed.

8.                Thus, the material question which arises for consideration is whether there was any negligence on the part of the opposite party no.1 while getting anesthesia administered and performing the operation upon the husband of the complainant for removal of stone from left kidney.

9.                In case of medical negligence, the specific allegations regarding negligence on the part of the doctor have to be proved and the onus of which lies on the complainant. A professional charged with the 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 has discretion in choosing treatment which he proposes to give to the patient, but such discretion is relatively ampler in cases of emergency. Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1 considered as to what constitute medical negligence and laid down as under:-

          “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 acceptance 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 may 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 rea 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 or 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 Halspbury’s laws of England (4^th Edition 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.”

 

10.              In Martin F. D’Souza Versus Mohd. Ishfaq 1(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 lawyers 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.”

 

11.            In Revision Petition no.1311 of 2013 titled Rajiv Navath Versus Dr. Shajahan Yoosaf Sahib and others’ (NC), 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  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 if 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”.

 

12.              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) Vs. S. Ramanujam, II(2009) CPJ 48 (SC)=(2009) 7SCC 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.”

 

13.              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 practioner and there was clear material available to foresee the injury.”

 

14.              It is well settled principle of law that a physician cannot assure the patient of full recovery in every case.  A surgeon cannot 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 practioner would be liable, only where his conduct fell below that of the standards of a reasonably competent practioner of such field.

15.              Learned counsel for the complainant vehemently argued that due to negligence in giving Anesthesia and performing operation by opposite party no.1, the husband of complainant suffered from Aplastic anemia, because damage occured to his bone marrow, slowing or shutting down the production of new platelets. The use of the drugs for Anesthesia as well as during operation could certainly cause Aplastic anemia. In this context, he referred to medical paper relating to Aplastic Anemia.

16.              To wriggle out the aforesaid contention, the learned counsel for opposite party no.1 contended that the Anesthesia was administered by qualified anesthetist as per standard medical procedure and the operation was also performed by opposite party no.1 as per standard medical procedure. The treatment does not indicate in any manner that there was any negligence on the part of the anesthetist or the opposite party no.1. The complainant has led no evidence to establish that there was any negligence on the part of the opposite party no. The opposite party no.1 is a qualified surgeon. It has further been argued that no medical negligence in performing operation on the husband of the complainant for removal of stone from left kidney is proved, therefore, the complaint is liable to be dismissed.

17.              The facts of the present case is are to be analyzed, keeping in view the proposition of law laid down in the aforediscussed authorities. Admittedly, the opposite party no.1 got some tests conducted before performing operation. Even ultrasound was also got done. The bed head ticket Ex.O2 indicates that before performing operation the HB of the patient was 13.0g/dl and after operation on 16.3.2010 also HB was 13.0g. Learned counsel for the complainant could not point out any medicine/drug prescribed or administered to the husband of the complainant, while performing operation or thereafter, which could result in developing the Aplastic anemia. The copy of the medical paper produced by the learned counsel for the complainant shows that some factors viz. radiation and chemotherapy treatments, exposure to toxic chemicals, use of certain drugs, Autoimmune disorders, viral infection etc. can temporarily or permanently injure bone marrow and affect blood cell production. Medications, such as those used to treat rheumatoid arthritis and some antibiotics, can also cause aplastic anemia. There is nothing to establish that Anesthetist and the opposite party no.1 did not follow the stand medical procedure for giving the anesthesia and performing operation upon the husband of the complainant for removal of left kidney’s stone. A doctor cannot be held negligence until and unless it is proved that he had not given proper anesthesia and not performed the surgery properly or that he had chosen wrong line for treatment, which is not adopted for such purpose. If, he adopted the standard medical procedure he cannot be held negligent in any manner.

18.              Learned counsel for the complainant could not bring to the notice of this forum any authentic medical paper/research which may indicate that the problem of aplastic anemia can develop on account of negligence on the part of the doctors while giving anesthesia or while performing surgery for removal of the kidney stone. There is nothing on the record which may show that any wrong medicine was injected by the anesthetist while giving anesthesia or some wrong procedure was adopted by opposite party no.1 while performing operation. Under such facts and circumstances, we have no hesitation in concluding that the complainant has failed to prove that there was any medical negligence on the part of the opposite party no.1 while getting administered anesthesia and performing surgery upon the husband of the complainant for removal of left kidney stone or post operative treatment.

19.              As a sequel to the foregoing reasons, we do not find any merit in the present complaint. Therefore, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:18.01.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member