Haryana

StateCommission

A/597/2015

SURINDER KUMAR - Complainant(s)

Versus

DR.SUMESH GARG - Opp.Party(s)

RAKESH BAKSHI

21 Dec 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal    No  :    597 of  2015

Date of Institution  :      15.07.2015   

Date of Decision    :      21.12.2015

 

Surinder Kumar s/o Sh. Kidu Ram, Resident of Village and Post Office Kalawar, Tehsil Jagadhri, District Yamuna Nagar.

                                      Appellant/Complainant

Versus

1.      Dr. Sumesh Garg, Vignesh Hospital, Malviya Nagar, Ambala Road, Jagadhri, District Yamuna Nagar, Haryana.

2.      United India Insurance Company Limited, Branch Office at 60 Janpath, Cannaught Place, New Delhi-110001 insurer of Vignesh Hospital Jagadhri.

                                      Respondents/Opposite Parties

CORAM:

                             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

                             Mr. Diwan Singh Chauhan, Member.                                                                                          

Present:               Shri Rakesh Bakshi, Advocate for appellant.

                             Shri Sahil Khunger, Advocate for respondent No.1.

                             Shri P.S. Saini, Advocate for respondent No.2.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

Challenge in this appeal is to the order dated 8^th May, 2015, passed by District Consumer Disputes Redressal Forum, Yamuna Nagar (for short ‘the District Forum’), whereby complaint No.668 of 2012 filed by Surinder Kumar-Complainant, alleging medical negligence and deficiency in service on the part of respondents/opposite parties, was dismissed.

2.      The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986, averring that he had fallen ill on February 1^st, 2012. He visited Dr. Sumesh Garg-Opposite Party No.1. The opposite party No.1 advised ultrasound and X-ray. The complainant got conducted his ultrasound and x-ray examination. After examining the report of ultrasound and x-ray, the opposite party No.1 started treatment of complainant. He was given glucose due to which heavy swelling was noticed on the left hand of complainant. The opposite party No.1 referred the patient to Government Medical College Hospital, (GMCH) Sector-32, Chandigarh. In GMCH, the doctors after examining the complainant found that due to wrong treatment given by the opposite party No.1, septic had developed due to which four fingers of left hand of the complainant were amputated by the doctors in GHCH.

3.      The opposite party No. 1 in his reply denied the allegations of the complainant. It was stated that the complainant was treated diligently, prudently and with due care and caution. The complainant and his attendants were explained the poor condition of the complainant. The patient was properly examined, investigated, diagnosed and treated. The opposite party No.1 has always maintained the highest standard of professional conduct and never allowed him to be influenced merely by the motive of profit. The opposite party No.1 is a reputed and qualified doctor having qualifications M.B.B.S., M.S. from Kuvempu University. However, the opposite party No.1 was insured with United India Insurance Company Limited.

4.      The opposite party No.2- United India Insurance Company Limited, in its reply admitted to be the insurer of the opposite party No.1.

5.      Question for determination is whether the opposite party No.1 committed any medical negligence while giving treatment to the complainant?

6.      It is well settled principle of law that medical negligence has to be higher than the negligence which is enough to fasten liability in civil proceedings, but at the same time it is not disputable that for civil liability the complainant has to prove that the doctor did not exercise reasonable care in accordance with the principles mentioned in BOLAM Rule, which is the basic principle relating to medical negligence. It has been laid down in the judgment of Justice McNair in Bolam v. Friern Hospital management Committee, (1957) 1 WLR 582 that: -

“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill……It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

7.      In MARTIN F. D’SOUZA versus MOHD. ISHFAQ, I(2009) CPJ 32 (SC), in para No.49 it has been held 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, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission.”

8.      Para 47 of MARTIN F. D’SOUZA’s case (Supra) is as under:-

“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.”

9.      The principle governing the liability of a medical professional had been noticed by the Hon’ble Supreme Court in case Jacob Mathew Vs. State of Punjab (2005) 6 SCC 1, in which the test laid down in Bolam V. Friern Hospital Management Committee (1957) 1 WLR 582 have been approved. The relevant observations which have a bearing for the decision of the instant case read as under: -

“(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (decided 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)     …A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence……

(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.”

                   This Court has further held in Jacob Mathew case: (SCC.24,Para 33)

“33. Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated (see Black’s Law Dictionary, 7^th Edn.). Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence.”

10.    The crux of the findings recorded in the above cited cases is that a physician cannot assure full recovery of the disease suffered by the patient. 

11.    Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab (Supra) held as under:-

“A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. 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 all what the person approaching the professional can expect.” 

12.    In the case in hand, nothing supporting the version of the complainant has been produced on the record. Except his own affidavit, the complainant has failed to produce any cogent evidence against the opposite party No.1. There is no evidence on the record to establish that on account of prick of needle for the purpose of IV fluids, gangrene developed and due to that his fingers were amputated. Exhibit C-2 issued by the opposite party No.1 clearly shows that patient was a chronic alcoholic, smoker and gangrene had developed in his right hand. It is established on record that whatever best could be done by a medical practitioner, was done by the opposite party No.1 by exercising his skill with reasonable competence and if the patient did not get any relief, it was a misfortune of the complainant.  Without there being any evidence in support of complainant’s version, no case of medical negligence is made out against the opposite party No.1 and therefore no case for interference in the impugned order is made out.

13.    In view of the above, the appeal is dismissed being devoid of merits.

Announced 21.12.2015

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL