Karnataka

Kolar

CC/34/2019

Chalapathi woorf Nyathappa - Complainant(s)

Versus

Dr.Naveen Kumar - Opp.Party(s)

Sri.K.V.Shankarappa

07 Mar 2023

ORDER

 

Date of Filing: 14/05/2019

Date of Order: 07/03/2023

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES,KOLAR – 563 101.

 

Dated: 07^thDAY OF MARCH 2023

SRI.SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT.SAVITHA AIRANI,B.A.L., LL.M., …..LADY MEMBER

CONSUMER COMPLAINT NO :: 34 OF 2019

Chalapathi @ Nyathappa,

S/o. Muniswamy,

Aged About 45 Years,

Agriculturist, Vaddahalli

Village, Bethamangala

Hobli, Bangarpet Taluk.

(Rep. by Sri. K.V. Shankarappa, Advocate)                ….  Complainant.

 

- V/s -

1) Dr. Naveen Kumar,

S/o. Krishnamurthy,

Aged About 33 Years,

Dental Doctor, Proprietor,

Sri Sharada Murthy Clinic.

 

2) Dr. L. Swetha,

W/o. Dr. Naveen Kumar, Major,

 

Both are R/at: Sri Sharada Murthy

Clinic, S.R.K. Complex, Opposite SKH

ITI, Kolar Road, Bethamangala,

Kolar District-563 116.

 

And Both are R/at: No.369,

Behind Renuka Temple, Renuka Nagar,

Virupakshi Road, Someshwara Palya,

Mulbagal

(OP Nos. 1 & 2 are represented by Dr.S.V. Joga

Rao & Smt. S.Radha Pyari, Advocates)                …. Opposite Parties.

-: ORDER:-

BY SRI. SYED ANSER KALEEM, PRESIDENT

01.   This is the complaint filed by the complainant alleging medical negligence caused by the opposite party Nos.1 & 2 doctors in treating the son of the complainant by name Abhiram resulting in death and hence prays for compensation of Rs.19,50,000/- and for such other reliefs may be granted as this Hon’ble Commission deems fit in the circumstances of the case. 

02.   The brief facts of the complaint is that, the son of the complainant is a student and he is very good at his studies and he is likelihood of having a bright future carrier. That the son of the complainant by name Abhiram due to feeling pain in beneath of his left ear and thereby approached the Op No.1 doctor. On examination Op No.1 doctor prescribed certain lab test and accordingly conducted the lab test and the laboratory attached to the Ops clinic.  It is stated that after going through the blood test report and the OP No.1 administered some injections and also given drip and the said drip some injections were also infused and given tablets for consumption and finally asked the patient to take rest and advised to come back in the evening. Further states that the complainant took his son to the OP clinic again in the evening at about 06.00 p.m. Further stated that the Op No.1 doctor examined the son of the complainant and administered three more injections together and thereby patient immediately crawling with stomach pain and kept crying and OP doctor informed that, it will be alright within 10 minutes and again given the drip, but the stomach pain did not reduced even time reaches to 8:00 pm, but due to pain patient was crying, but the Op No.1 doctor did not show any interest. Thereafter the complainant called upon the 108 ambulance service in order to shift the patient to the R.L. Jallappa Hospital and finally the patient was shifted to R.L. Jallappa Hospital, Kolar and ultimately the doctors of R.L. Jalappa Hospital by examining the patient and informed that, the son of the complainant is dead. Thereafter the R.L. Jalappa Hospital Doctor sent the dead body to the mortuary and conducted the post mortem. Further the post mortem report confirmed that, the cause of the death is due to “ANAPHYLATIC SHOCK AS A RESULT OF ADMINISTRATION OF DICLOFENAC”.  Hence the complainant alleged that, the OP No.1 is a Dentist and he is not a qualified/license to practice Allopathic in General medicine cases as he is not a registered practitioner in KPMEA the authority for licensing a Doctor to practice and hence alleged that Op No.1 is incompetent to administer treatment to the son of the complainant, however OP No.2 is MBBS doctor.

02(a).   Further complainant states that, though the OP No.1 is incompetent to treat his son and to prescribe Allopathic medicine as he was only a Dentist. Hence the complainant also lodged the police complaint and the criminal case bearing Cr. No. 73/2017 was also registered against the OP No.1 and the OP No.1 was taken the bail from the jurisdictional Court and the case is pending for consideration.  With the above backgrounds of the facts, the complainant alleged that, the OP No 1 has committed severe negligence act by giving treatment to the deceased without having any responsibility and caused great loss of life of the son of the complainant. Hence this complaint.

 

03.       On issuance of notice OP No.1 and OP No.2 are appeared through their counsel and filed their version.

 

04.       In the version of Ops it is contended that, the patient by name Abhiram accompanied by the complainant approached the OP clinic and who treated in the OPs clinic. It is contended that, the said Abhiram complained fever since 03 days, after due examination by Dr. Swetha - OP No.2 asked the patient to go for blood check-up since temperature was 99.7 and also due to fact that, he had fever from past 03 days. It is submitted that, the doctor Naveen-OP No.1 is also with doctor Swetha to assist her as she was 07 months pregnant and she asked her husband OP No.1 to write lab requisition seeking few tests.  Further stated that, after 20 minutes the patient came with the lab report and after seeking the lab report Dr. Swetha L as she was getting late for her duties as medical officer (working nearby Primary Health Centre, Oorgumpet which is around 08 kms away from their clinic) and hence asked Dr. Naveen to take dictation of medication, and accordingly Dr. Swetha had dictated the following medicines:-

1. Tab Mahacef plus 1
2. Tab nimlace p1
3. tab axusSp 1
4. Cap omiark D 1
5. InjMonocef 1gm
6. InjEldervit 1,

after writing the above prescription Dr. Naveen has handed over the same to the patient and after that Dr. Swetha called staff nurse and asked her to give certain medicines in the infusion bottle namely injection Monocef 1 gm, injection Eldervit slowly.  Further Doctor asked the patient to come by 06:00 pm in the evening and thereafter Dr. Naveen took Dr. Swetha to drop her at her work place.

04(a).   Further contended that, when the patient came in the evening with his father in the Motor cycle Dr. Swetha explained the following facts to the patient that, the patient was little weak and advised him to get hospitalized in the nearby nursing home for further treatment.  However the father of the patient requested Dr.Swetha to continue the same medication for that day and informed the Doctor that, next day morning he will take him to the higher center. Hence contended that, on the request made by the father of the patient Dr. Swetha asked the staff nurse to give same medication in slow infusion (drip).  It is contended that, at about 07:00 pm Dr. Swetha felt that, the patient was okay and as there were no complaints from the patient and thereon called his father and asked him to take to any higher center and accordingly patient and his father walked out from the clinic with well-maintained gait and sat on a two wheeler and went and also Op No 1 and 2 were also went away to their home by closing the clinic. Further submitted that, about 10:50 PM, OP No.1 received an information through unknown call that, the son of the complainant was no more.

 

04(b).   It is specifically denied the fact that, as per the allegation made in Para 6 of the complaint that, the death of Mr. Abhiram was due to “ANAPHYLATIC SHOCK AS A RESULT OF AMINSTRATION OF DICLOFENAC” as reveled by the expert opinion and Forensic Lab Report.  It is contended that, neither in treatment nor in the medicines stated in the prescription given by the Ops above mentioned DICLOFENAC is not noticed, apart qualified doctor has treated the patient.  Further contended that, whatever treatment rendered to the patient in the instant case is absolutely in accordance with medical practices and there is no iota of negligence or deficiency in service on the part of the Ops while treating the patient. Further it is denied that, there were no legal notices served to the Ops on their addresses or they have given reply to any notice. Further it is contended that, the OP No.1 is the Proprietor of the clinic and false allegation made against the Ops for monetary compensation. Further contended that, OP No.2 Dr. Swetha holds professional qualification of MBBS with KMC Registration No. 107456 and practicing in licensed day care centre with registration number KLR-00246-14-CD under KPME Act 2007 and Rules 2009. Hence contended that, unfounded and untenable allegations have been arrayed against her with obvious motive.

 

04(c).    Further the Ops filed their additional version and in the said version it is contended that, no notices were served on them as per the postal SHARA notice were returned with SHARA “Not available during the delivery” and the Ops came to know that, about the filing of the complaint from the one of the advocate who is the friend to the brother of the OP No.1 and immediately steps taken and order of the ex-parte recalled and had taken steps to file version.

 

04(d).   Further contended that, the criminal case filed against the OPs bearing Cr. No 73/2019 and the same is challenged before the Hon’ble High Court of Karnataka in Crl. P. No. 874/2019 and ultimately the Hon’ble High Court quashed the entire charge sheet filed by the jurisdictional police. Further specifically denied that, the complainant did not took his son in an Ambulance-108 from the OPs clinic to the R.L. Jalappa Hospital, as the trip sheet reveals that, on 10.05.2017 Master Abhiram and the complainant were taken from the house of the complainant situated at Vaddahalli Village and not from the clinic of the OPs. Further contended that, when the patient was boarded the Ambulance he was suffering from breathing problem and he did not suffer from any stomach pain as alleged in the complaint. Further contended that, the patient also not suffered any allergy and the patient shifted to R.L. Jalappa Hospital and was not carried dead to R.L. Jalappa Hospital, hence contended that, there is negligence from their part in treating the patient. With the above grounds and ultimately Ops pray for dismissal of the complaint.

 

05.       In order to prove their case of the parties, both complainant and OP Nos.1 & 2 filed their affidavit evidence along with documentary evidence.

 

06.       On the basis of the pleadings of the parties the following points will arise for our consideration:-

1. Whether the Complainant proved Negligence of the OP doctors in treating the son of the complainant by name Mr. Abhiram and thereby resulting in death?

 

2. Whether the Complainant is entitled to the relief as prayed for in the complaint?

 

3. What order?

 

07.       Heard the arguments of the parties, perused the evidence placed on record.

08.   Our answer to the above points are:-

             POINTS (1) & (2):-     Are in the Negative

             POINT No.(3):-        As per the final order

                                           for the following :-

5299419885.  

09.       POINT NOs.(1) & (2):- These two points are interlinked to each other and hence taken up together for common discussion for the sake of brevity and convenience and to avoid repetition of facts and discussion.

10.       On perusal of the pleadings of the parties it discloses that, it is an undisputed fact that, the son of the complainant approached OPs clinic with certain health issues on 10.05.2017 and in the OPs clinic patient was treated after following the lab report and administered the injections and medicines. It also not in dispute that, the Ops doctors asked the patient to visit again in the evening at about 06:00 pm of the same day and accordingly patient visited Ops hospital and again taken treatment at the OPs clinic. Further it is also not in dispute that, the patient- Abhiram was unfortunately died on the same day. 

 

11.       On carefully perusing of the complaint petition and the affidavit evidence of the complainant, it discloses that, the specific allegation of the complainant is that, the son of the complainant was suffering of pain beneath the left ear and thereby complainant took his son to the OPs clinic and OPs hospital  doctor after examining the patient and asked the complainant son to get blood test from the lab attached to the clinic.  Subsequent to the lab report the Doctor administered the injections and given drip with medical prescription, thereafter patient was sent to home and advised to visit again in the evening by 06:00 pm. Further it is also not in dispute that, the complainant again took his son to the Ops hospital and again the OPs doctor given medicine and administered the injection.

12.       Whereas it is the allegation of the complainant that, when the Doctor given injection the complainant suffered stomach pain and when intimated, the OP No.1 Doctor did not show any interest and 108 Ambulance service was availed and shifted the patient to the R.L. Jalappa Hospital and the doctors of R.L. Jalappa Hospital on examination of the patient and intimated that, the patient was died and post-mortem was conducted.  That the Post Mortem report revealed that, the death in question was due to “ANAPHYLATIC SHOCK AS A RESULT OF ADMINISTRATION OF DICLOFENAC” and hence complainant by questioning incompetency of OP No.1 Doctor and alleged negligent and deficiency in service by the OPs Doctor in treating his son.

 

13.       In order to prove the case of the complainant and the complainant filed his oral evidence by way of affidavit and filed the documents in support of his case and also examined one witness by name Dr. Murali Mohan M.C. as PW-2.

 

14.       On perusal of the affidavit evidence, it discloses that, the complainant has almost reiterated the facts narrated in the complaint, but did not examine any other independent expert opinion in order to substantiate his case.  Further complainant has also not placed any cogent evidence to show that, OP No.1 alone treated his son.

 

15.       Whereas the Ops by denying all the allegations made in the complaint and contended that, Op No.1 did not treated the patient and he was treated by the Op No.2 doctor she is qualified medical practitioner having MBBS Degree and she is the registered medical practitioner and duly obtained the license from the competent authority.   Further in order to demonstrate that OP No. 2 has produced the certificate of registration bearing No 107456 issued by the competent authority i.e., Karnataka Medical Council dated 17^th Oct 2014 as Annexure- A and placed the certificate of Dr. Naveen Kumar-OP No 1 issued by the District Registration Authority Kolar District as per the provisions of KPME Act 2007 as Annexure—B and perusal of these certificates issued by the competent authority   and these certificates will prove the geniuses of Ops are qualifying medical practitioners  and there is no iota of any doubt about the qualification and competency  of the Op No.2 doctor and as well as Op No 1 is duly empanelled registered as ALLOPATHY DAY CARE CENTRE and is empowered to run the Ops hospital as day care centre.

 

16.       On careful perusal of the entire complaint averments, we found that, there no serious allegations made in the complaint about the OP No.2 Doctor. Furthermore OP No.2 had contended that, she was pregnant at the time of treating the patient and hence took the assistance of the Op No.1 to write down the prescription of medicines as per her dictation and also advised the nurse to administer medicines and to give drip to the patient and hence there is no negligence from their part in treating the complainant’s son.  In order to substantiate that, the OP No.2 Doctor was pregnant at the time of treating the patient in question she has produced the Birth Certificate of her child issued by the Competent Authority dated: 20.11.2021.  On perusal of the Birth Certificate it discloses that, OP No.2 Doctor child was born on 17.08.2017, it is evident that, at the time of treating the patient on 10.05.2017, and it clearly discloses on the date of treating the patient the OP No.2 Doctor as she rightly contended that, she was about 07 months pregnant on that day and hence she dictated the prescription to her husband i.e., OP No.1 Doctor in order to treat the patient and accordingly the patient was treated.  However there is no rebuttable evidence produced by the complainant in order to falsify the case and thereon there is no hesitation to accept the contention of the OP No.2 Doctor.

 

17.       Furthermore the crux of the matter is to consider that, the OP No.1 Doctor being Dentist and incompetent to treat the patient and administered the drugs and ultimately resulting in death due to ANAPHYLATIC SHOCK AS A RESULT OF AMINSTRATION OF DICLOFENAC” 

 

18.       On perusal of the Lab Report and the prescription of medicines and injections and these prescription of medicines are as follows:-

1. Tab Mahacef plus 1
2. Tab nimlace p1
3. tab axusSp 1
4. Cap omiark D 1
5. Inj - Monocef 1gm
6. Inj - Eldervit 1,

On perusal of the above prescription of medicines and injections and after going through the medical literature and after ascertaining the fact that, the above medicines does not disclose the component of DICLOFENAC.  It is worth to note that, complainant for the reasons best known to him did not examine the staff nurse or any other person from the Ops hospital in order to prove that the Op No.1 alone treated son of the complainant and administered the drugs due to which caused the death of the master Abhiram.  Further it is noteworthy to mention that, in case of medical negligence the burden of proving the case is solely on the complainant, whereas the complainant failed to adduce the evidence of the expert. Hence in absence of the expert evidence it is not convenient to reach conclusion to the effect that the doctors are negligent in treating the patient.

 

19.       In order to substantiate the case of the complainant that the complainant produced the copy of the FIR as Anneure-4 of the complaint in order to demonstrate that the criminal case was registered against the Ops for negligence of the Ops doctors causing the death of the son of the complainant.

 

20.       Per contra, Ops produced the  orders of the Hon’ble High Court passed in Criminal Petition No 874/2019 and the Hon’ble High Court ultimately pleased to quashed the criminal proceedings which is pending before the Principal JMFC Court in KGF, Kolar relating to Crime No. 73/2017 (C.C. No. 674/2018) on the ground that as per the decision of the Hon’ble Supreme Court in the case of Jacob Mathew and it is held that “ the Investigating officer who, before proceeding against the Doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a Doctor in Government Service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion. Hence based on the above ratio of the Jacob Mathew the criminal proceedings were quashed due to non-taking the expert opinion and held that, proceedings has been initiated in violation of the Law laid down by the Hon’ble Supreme Court in the case of Jacob Mathew in as much as no opinion of the Expert has been obtained and in violation procedure contained in the standing order No.1018 dated: 18.05.2017 by the Inspector General Of Police, Karnataka State, Bangalore. 

 

21.       Further we have no hesitation to fully accept to the decision of the Hon’ble High Court based on the Jacob Mathew case rendered by Hon’ble Supreme Court, that the complainant has failed to adduce the evidence of the expert in that branch of medical practice.  However the complainant is much relied on the Annexure - 10 the Opinion given by the FSL.  On perusal of the same, it is opined by the FSL Doctor that, the Death is due to “Anaphylactic Shock as a result of Administration of DICLOFENAC. The question is to consider that the death of the patient in question due to administration of DICLOFENAC ? On perusal of the entire evidence placed on record by the complainant there is no cogent evidence placed by the complainant to show that, OPs Doctors had administered the DICLOFENAC to the patient in question.  In the absence of the cogent evidence we cannot relay merely on the pleadings of the complainant. 

 

22.       It is worth to note that, the complainant had only filed his affidavit evidence and based on the FSL Report filed which is the part of the charge-sheet by the police, whereas  the entire charge sheet is quashed by the Hon’ble High Court of Karnataka by its orders dated: 06.06.2019 passed in Criminal Petition No.874/2019 and hence the report given by the FSL as part of the investigation cannot be wise to rely on the said FSL report  as the Hon’ble High Court also held that  “ the Investigating officer who, before proceeding against the Doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a Doctor in Government Service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion and the proceedings has been initiated against the petitioner in violation of the Law laid down by the Hon’ble Supreme Court in the case of Jacob Mathew in as much no opinion of the expert has been obtained”.  Further in the catena of decisions of the National Commission as well as Hon’ble Supreme Court it is time and again held that, in the absence of Expert evidence in the case, it is not possible for us to rely on the evidence placed by the complainant. 

 

23.       Further for argument sake on perusal of FSL report, it also discloses that, the presence of DICLOFENAC in Article – 1, 2 and 3 and Negative in article 4, 5, 6 and 7.  Article one is stomach and its contents portion of small intestine and contents, article 2 is the portion of liver and kidney and article 3 is the blood, where as article 4 is the preservative used saturated sodium chloride, article 5 is the skin from injection site, article 6 is the Skin from control site and article 7 is Rectified Spirit. Further it also reveled in the FSL report under the heading of the Note: it reads thus “the quantification of DICLOFENAC was not done as the available blood sample is unfit for quantification, this note, obviously create doubt death is due to presence of DICLOFENAC.   To understand about the nature of the drug DICLOFENAC, we have perused the description list produced placed before us, the doctor prescribed the following medicines namely           

            1. Tab Mahacef plus 1                                                     

2. Tab nimlace p1
3. tab axusSp 1
4. Cap omiark D 1
5. InjMonocef 1gm
6. InjEldervit 1, S

 

From the above prescription as we stated supra there is no component of DICLOFENAC.  Further the complainant also examined the witness by name Dr. Murali Mohan, Associate Professor, Forensic Department, Institute of Medical Science, Karwar.  On perusal of the evidence recorded on 18.11.2019 wherein which he deposed that, as per the requisition received from PSI, Bethamangala Police Station to conduct post mortem report of the deceased Master Abhiram and the same was conducted on 11.05.2017 between 03.00 PM to 04.00 PM and he opined that, deceased is said to have died due to administration of unknown injection on 10.05.2017 at Sharada Murthy Clinic in Bethamangala.  Per contra, in the cross-examination witness deposed that, before conducting post-mortem he did not assess and read 108 ambulance medical report.  Further deposed that, he do not aware about what sort of injections/medicines was administered to the deceased.  Anaphylactic reaction means, the usual reaction which is immunity based to any external substance or any drugs given or taken.  Even Anaphylactic reaction may be caused by food also.  The anaphylactic reaction within fraction of seconds or minutes of administration or late reaction may also take place within 24 hours.  Further deposed that, in the FSL report there is no mention of amount of DICLOFENAC content in the body. Further deposed that, he has given his opinion based on FSL and Histopathological report given by the Forensic science Lab.  Further there is no mention in the FSL and Hystopathological report as who has been diagnosed death was caused due to anaphylactic reaction it is my own logical opinion.  It is admitted that, the names in the prescription as per Exhibit-P.4 they are all brand names of tablets and also admitted that, it is not possible for him to comment about either deficiency in service of a doctor as per final opinion given by him.  On foregoing evidence of the witness it discloses the following question that, who has administered the Diclofenac to the patient and on perusal of the Annexure-C the trip sheet of 108 ambulance issued by Emergency Management and Research Institute it discloses that, the temperature shown to be warm and the condition is normal and the temperature reading is 98.6 F, and overall perusal of the trip sheet and its summary of the patient noted nowhere it discloses the allergic problems with the patient when he was shifted to R.L. Jalappa Hospital from Vaddahalli.  It is noteworthy to mention that, on seeing the medical prescription given by the OP doctors nowhere it is proved that, the prescription of medicines contains the components of DICLOFENAC and morning and evening they continued the same treatment to the patient, it is also deposed in Para-8 of the cross-examination of Dr. Swetha PW-2 and deposed that, she had repeated the same dosage to the patient around 06.00 PM on the same day as administered in the morning.  In our opinion, complainant did not place any cogent evidence to relay the allegation made by the complainant and also failed to rebut the deposition given in the above cross-examination to demonstrate that, due to administration of DICLOFENAC only, the patient was dead.   

 

24.       Further on perusal of the deposition of DW-3 Dr. Amarnath’s cross-examination at Para-5 it is deposed that, the prescribed drugs as per the prescription slip can be given to the below 18 years of age of the patient. 

 

25.       Further it is noteworthy to mention that, in order to substantiate the case of the complainant the complainant examined Dr. Murali Mohan M.C, as PW-2.  On perusal of the entire deposition nothing is elicitated to prove that, OP Nos.1 & 2 are negligent in their service.  Further the OPs to substantiate their case they also examined a witness by name Dr. Amarnath and specialized in the field of General Medicine who deposed that the prescribed drugs can be given to the below 18 years of age of the patient.  Further as per the Trip Sheet DW-3 rightly deposed that, the patient was picked up from Vaddahalli village and the patient was stable and his vitals were normal with oxygen though out the journey in ambulance there was no history of allergy and the same is evidenced by the Trip Sheet produced by the OPs.

 

26.       On perusal of the cross-examination of the complainant at para-3 it is deposed that, around 12.00 PM we received the blood report.  After seeing the report Dr. Naveen Kumar told that, deceased was having fever and given injection and advised to stay at the Clinic for about half an hour.  After injection patient was slightly tiered.  Dr. Naveen Kumar had administered the injections to the deceased.  I do not know who has administered the injection to the deceased since the patient was taken inside to the Clinic.  I do not know whether the nurse was administered the injection or the Doctor.  From the above deposition it is clear that, complainant is blowing hot and cold, at one breath he is deposing that, Dr. Naveen Kumar administered the injection and on another breath he deposed that, he do not know who has administered the injection.  Above all, complainant did not say which injection was administered and who had administered the injection in question.  In a case of medical negligence without cogent evidence it is not possible for us to reach any conclusion and also we cannot decide the case on the basis of preponderance of probabilities or on the basis of surmises and conjecture. 

 

27.       As per the evidence of witness of the complainant i.e., Dr. Murali Mohan who is the author of post-mortem report whose evidence is not helpful to the case of the complainant as he is not independent expert  to place his opinion.  Hence the Hon’ble High Court in the Criminal Petition bearing No.874/2019 and ultimately by discarding the entire charge-sheet including the part of the post-mortem report quashed the Criminal proceedings with an observation on the ground that as per the decision of the Hon’ble Supreme Court in the case of Jacob Mathew and it is held that “ the Investigating officer who, before proceeding against the Doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a Doctor in Government Service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion.  Though the complainant was also a party to the proceedings with respect to Criminal Petition No.874/2019, when the Hon’ble High Court clearly express about obtaining the medical opinion preferably from a Doctor in Government Service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion, but the complainant failed to examine expert opinion. 

28.   Further complainant failed to prove that, OPs doctors are negligent in their service to show that, OP Doctor is negligent in his professional duty owed to the patient, also not proved the deficiency and the breech of such duty and more particularly direct causation.  Hence we cannot rely upon the preponderance of probabilities to fix the liability on the Doctor.  Especially in the medical negligence cases there is no presumption of or inference of negligence merely because of an unfortunate result which might have occurred despite the exercise of care.  The Hon’ble Supreme Court in case of Laxman Balakrishna Vs Dr. Triambak report in AIR 1969 Supreme Court 128 so also in the reported decision of Indian Medical Association Vs V.P. Shanta, the Hon’ble Apex Court and the Hon’ble National Commission has held that, the skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the complainant to prove that, the doctor was negligent in the line of the treatment that resulted in the death of the patient.  We have gone through the entire written arguments as well as the evidence placed on record and therefore the entirety of the foregoing discussion we are of the considered view that, not to fix any liability upon the OP Nos. 1 & 2 Doctors as the complainant has failed to prove the breach of duty which amounts to deficiency in service.  Furthermore complainant did not produce any expert evidence to establish negligence on the part of the OP Nos.1 & 2 doctors.

 

29.   On the basis of above discussion we reached to conclusion that, the complainant has failed to prove negligence on the part of OP Nos.1 & 2 doctors and thereby complainant has failed to prove deficiency in service on the part of the OP Nos.1 & 2 Doctors.  Under the circumstances the complainant is not entitled for any relief as sought in the complaint.  Accordingly we answered point Nos.1 & 2 are in the Negative.

 

30.   POINT NO.3:-  In view of our finding on Point Nos.1 & 2 and the discussions made thereon, we proceed to pass the following:-

ORDER

01.   The complaint is dismissed.  No order as to costs.

02.   Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 07^th DAY OF MARCH 2023)

 

 

 

 

   LADY MEMBER                          PRESIDENT