Date of Filing : 11/12/2015
Order No. 23 dt. 23/02/2018
The case of the complainant in brief is that the complainant was under the treatment of Dr Gautam Bhadury the then Director, Regional Opthalmic Institute of Calcutta Medical College. As per the advice of Dr Gautam Bhadury three Avastin injections were applied on the right eye of the complainant on 10.04.2013, 23.05.2013 and 25.09.2013. thereafter the complainant was referred to o.p.1 Dr Rudra Prasad Ghosh for operation on his right eye. The operation was done on 30.10.2013 and medicines were prescribed namely Milflox DM and Navnac after applying the eye drop the complainant felt pain and reported the matter to Dr R P Ghosh. The said doctor prescribed medicines namely Iobit and hypersol 5 and asked the complainant to repeat all the medicines upto 25.11.2013 and date was given for laser treatment on 10.12.2013. The complainant thereafter went to Sankarnetralaya, Kolkata and Dr Sudipta Das after examining the right eye he opined that his right eye has been affected by Glaucoma by excessive use of Milflox DM and he prescribed some medicines referred the complainant to Dr R. Dey who gave an appointment on 16.12.2013. Dr Dey after examining the complainant prescribed medicines and advised him to meet him on 30.12.2013. On 30.12.2013 the right eye of the complainant was examined after laser treatment but no improvement of the vision was found and accordingly the said doctor prescribed some medicines. At present the complainant is undergoing treatment of Dr. T. K. Hazra of Dissa Hospital, Sheoraphuli and he prescribed tablet as well as eye drop. It has been categorically stated by the complainant that due to wrong treatment of the o.p. the vision of the complainant’s right eye is day by day declining. Due to medical negligence on the part of the o.p. Dr. R. P. Ghosh the complainant filed this case praying for compensation of Rs.5,00,000/- from the o.p.
O.p. contested the case by filing w/v and denied all the material allegations of the complaint. It was stated that the complainant has miserably felt to establish that he had hired the services of the o.p. for a consideration which has been paid or promised or partly paid or partly promised. In support of the said contention the o.p. relied on a decision as reported in 1995 SCC (6) 650 (Indian Medical Association Vs V.P.Santha). The complainant was never under the care and medical treatment management of the said o.p. directly but rather under the supervision of such other doctors under whose instructions alone the o.p. had provided the service. The other doctors who provided service to the complainant has not been made parties to the complainant and the same is bad for non-joinder of necessary parties.
The o.p. further stated that the complainant was under the care and treatment of Dr. Gautam Bhadury and at that time the o.p. was working as RMO-cum clinical tutor under Dr G Bhadury. It appears from the record that the complainant visited the OPD for the first time on 10.04.2013 and thereafter two occasions. The complainant had undergone cataract surgery under Dr. G Bhadury and was discharged on stable condition. The complainant had visited the OPD of RIO and last time on 25.09.2013 and subsequent to that date the complainant was never under the treatment of o.p. The Avastin Injection is given to eyes which are grossly damaged due to various retinal diseases and while the complainant underwent cataract surgery he received three such injections which indicate that the condition was already poor. The eye drops namely Milflox DM and Navanac were prescribed which are a standard post operative medicine, after cataract surgery is given to the patient by doctor. The Iobet was prescribed to prevent the rice of intra ocular pressure (Glaucoma) and asked him to review after seven days but he did not turn up and he met the doctor on 26.11.2013 after the lapse of 20 days for which the complainant was asked for to undergo laser treatment but he failed to turn up. On the basis of the said fact the o.p. stated that as per the prescribed formula the patient was treated properly and there was no medical negligence for which the o.p. can be held liable for the same and will have to pay the compensation as claimed by the complainant. Accordingly the o.p. prayed for dismissal of the case.
On the basis of the pleadings of the respective parties following points are to be decided:-
- Whether the complainant was treated by o.p.?
- Whether the complainant was treated by other doctors?
- Whether the o.p. prescribed wrong medicines for which the complainant suffered?
- Was there any medical negligence on the part of the o,p.?
- Whether the complainant will be entitled to get any 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 was under the treatment of Dr Gautam Bhadury the then Director, Regional Opthalmic Institute of Calcutta Medical College. As per the advice of Dr Gautam Bhadury three Avastin injections were applied on the right eye of the complainant on 10.04.2013, 23.05.2013 and 25.09.2013. thereafter the complainant was referred to o.p.1 Dr Rudra Prasad Ghosh for operation on his right eye. The operation was done on 30.10.2013 and medicines were prescribed namely Milflox DM and Navnac after applying the eye drop the complainant felt pain and reported the matter to Dr R P Ghosh. The said doctor prescribed medicines namely Iobit and hypersol 5 and asked the complainant to repeat all the medicines upto 25.11.2013 and date was given for laser treatment on 10.12.2013. The complainant thereafter went to Sankarnetralaya, Kolkata and Dr Sudipta Das after examining the right eye he opined that his right eye has been affected by Glaucoma by excessive use of Milflox DM and he prescribed some medicines referred the complainant to Dr R. Dey who gave an appointment on 16.12.2013. Dr Dey after examining the complainant prescribed medicines and advised him to meet him on 30.12.2013. On 30.12.2013 the right eye of the complainant was examined after laser treatment but no improvement of the vision was found and accordingly the said doctor prescribed some medicines. At present the complainant is undergoing treatment of Dr. T. K. Hazra of Dissa Hospital, Sheoraphuli and he prescribed tablet as well as eye drop. It has been categorically stated by the complainant that due to wrong treatment of the o.p. the vision of the complainant’s right eye is day by day declining. Due to medical negligence on the part of the o.p. Dr. R. P. Ghosh the complainant filed this case praying for compensation of Rs.5,00,000/- from the o.p.
Ld. Lawyer for the o.p. argued that the complainant has miserably felt to establish that he had hired the services of the o.p. for a consideration which has been paid or promised or partly paid or partly promised. In support of the said contention the o.p. relied on a decision as reported in 1995 SCC (6) 650 (Indian Medical Association Vs V.P.Santha). The complainant was never under the care and medical treatment management of the said o.p. directly but rather under the supervision of such other doctors under whose instructions alone the o.p. had provided the service. The other doctors who provided service to the complainant has not been made parties to the complainant and the same is bad for non-joinder of necessary parties.
The o.p. further argued that the complainant was under the care and treatment of Dr. Gautam Bhadury and at that time the o.p. was working as RMO-cum clinical tutor under Dr G Bhadury. It appears from the record that the complainant visited the opd for the first time on 10.04.2013 and thereafter two occasions. The complainant had undergone cataract surgery under Dr. G Bhadury and was discharged on stable condition. The complainant had visited the OPD of RIO and last time on 25.09.2013 and subsequent to that date the complainant was never under the treatment of o.p. The Avastin Injection is given to eyes which are grossly damaged due to various retinal diseases and while the complainant underwent cataract surgery he received three such injections which indicate that the condition was already poor. The eye drops namely Milflox DM and Navanac were prescribed which are a standard post operative medicine after cataract surgery is given to the patient by doctor. The Iobet was prescribed to prevent the rice of intra ocular pressure (Glaucoma) and asked him to review after seven days but he did not turn up and he met the doctor on 26.11.2013 after the lapse of 20 days for which the complainant was asked for to undergo laser treatment but he failed to turn up. On the basis of the said fact the o.p. stated that as per the prescribed formula the patient was treated properly and there was no medical negligence for which the o.p. can be held liable for the same and will have to pay the compensation as claimed by the complainant. Accordingly the o.p. prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainant was treated by Dr Gautam Bhadury initially who referred the complainant to the o.p. Dr R. P. Ghosh. The said doctor after examining advised for IOL operation on 30.10.2013. After operation the complainant was released from the operation table and with the help of nursing staff he had to wait for sometime the said doctor prescribed some medicines. It has also been alleged that after applying the medicines including the Avastin injection was given to the complainant which caused the complainant of affecting the vision of the right eye. The complainant came to the said conclusion after consulting a doctor of Sankarnetralaya, Kolkata but it is curious enough that the complainant could not produce any evidence in support of his contention that the doctor who treated him at Sankar Netralaya that because of application of Avastin injection the vision of the complainant was affected. It appears from the materials on the record that the complainant had earlier underwent cataract operation in respect of his left eye. The Avastin injection is applied in order to protect the retinal diseases. The complainant was not only treated by o.p. doctor but several doctors including Dr G Bhadury treated him but unfortunately those doctors have not been parties in this case. The complainant in order to fortify his claim that due to medical negligence rather for application of Avastin injection the vision of the right eye of the complainant was affected. The complainant could not produce any expert’s opinion ín support of the contention that because of application of Avastin injection the vision of the complainant has affected.
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.LaxmanBalkrishna Joshi v. Dr TrimbakBapuGodbole 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 GadekarSuprathet 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 AchutraoHaribhauKhodwa& 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”.
On the subject of prognosis and management of the nature of cancer sustained by the patient we can rely on few medical books namely “Cancer: Principles & Practice of Oncology by DeVita, Hellman and Rosenberg, Surgical Pathology by Ackerman”. Chemotherapy is warranted for all stages to be applied upon the patient. The complainant has also admitted that after the surgical operation the chemotherapy was applied. Therefore the complainant did not make any complain against the doctors who treated the patient and as such they have not been made parties to this case. The complainant did not file any medical papers to show that the advices provided by the treating doctors were not followed by the hospital, o.p. 1 as well as there was any lack of care taken by the other o.p.s during the treatment of the said patient. The principles for judging whether there was Medical Negligence in the treatment of patient have been enunciated.
“In Kusum Sharma & Others vs Batra Hospital & Medical Research Centre and others, (2010) 3 SCC 480, the court observed that,
50. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the 25benefits without taking risks. Every advancement in technique is also attended by risks.
51. In Roe and Woolley v. Minister of Health (1954) 2 QB 66, Lord Justice Denning said : `It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way."
17. In Jacob Mathews Case, (2005)6 SCC 1, the Hon’ble Supreme Court observed that:-
“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.”
18. In another case AchutraoHaribhauKhodwa and others versus State of Maharashtra and others (1996) 2 SCC 634 Hon’ble Supreme Court has made the following observations
“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 advisable for treating a patient. Courts would indeed 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. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”
19. In the case of Dr.LaxmanBalkrishna Joshi vs. Dr.TrimbarkBabuGodbole and Anr., AIR 1969 SC 128 and A.S.Mittal v. State of U.P., AIR 1989 SC 1570, it was laid down that certain duties of doctor 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.”
On the basis of judgement and observation by Hon’ble Supreme Court in the Kusum Sharma’s case that “We must not look at the 1947 accident with 1954 spectacles". But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of 26proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.”
On the basis of the materials on record we have given our thoughtful consideration to the arguments advanced by both the parties we have perused the prescription slips of different hospitals. None of these doctors mentioned that due to negligence or carelessness by applying the injection of Avastin the vision of the right eye of the complainant was affected. The operation conducted by the said doctor realised that poor visual prognosis explained i.e operative note. The complainant failed to provide any cogent evidence that the medicines prescribed by the o.p.doctor ought not to be prescribed for the treatment of the complainant. Even the complainant has not produced any expert evidence to prove his case.
Hon’ble Supreme Court in a catena of judgements have made elaborate observation on the medical negligence, he has to prove the essential ingredients of medical negligence like Duty, Dereliction of duty of care (breach) and resultant Damage/injury. In the instant case the complainant failed to prove those elements. It should be borne in mind that merely because the patient did not respond favourably to the treatment, cannot be a ground to fasten the liability upon the medical profession (2018 (1) CPR 164 (NC).
Having regard to the facts and circumstances of the case we hold that the complainant has miserably failed to prove the allegation against the o.p. doctor as a consequence to that we hold that the complainant will not be entitled to get any relief as prayed for.
Thus all the points are disposed of accordingly.
Hence, it is ordered,
that the cc no.557/2015 is dismissed on contest without cost against the o.p.
