Delhi

StateCommission

CC/1021/2015

VIKAS MALIK & ANR. - Complainant(s)

Versus

I.P. APOLLO HOSPITAL & ANR. - Opp.Party(s)

04 Sep 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing: 04.09.2018

                                                                                                              

                                                                   Date of decision:28.09.2018

 

 

Complaint No. 1021/2015

 

IN THE MATTER OF:

 

Mr. Vikas Malik,

S/o Late Sh. Naresh Kumar Malik,

R/o Kothi No.1, 2^nd floor,

Road No.-17 East Punjabi Bagh,

New Delhi-110026                                                        

 

Ms. Mamta Pahuja

D/o Late Sh. Naresh Kumar Malik

R/o A-506 Salarpuria

Silverwoods, No.15

Varthur Road, Nagvarpalya,

CV Raman Nagar,

Banglore-560093

 

Ms. Kunti Malik

W/o Late Sh. Naresh Kumar Malik,

R/o Kothi no.1, 2^nd floor,

Road No.-17 East Punjabi Bagh,

New Delhi-110026                                                         ….Complainants

 

VERSUS

 

Indraprastha Apollo Hospital,

Through its Chairman

Mathura Road, Sarita Vihar,

New Delhi-110076

 

Dr. Sandeep Guleria

Sr. Consultant

Transplant and General Surgery

Indraprastha Apollo Hospital,

Mathura Road, Sarita Vihar,

New Delhi-110076

 

Dr. Ajay Kumar

Sr. Consultant,

•  

Indraprastha Apollo Hospital,

Mathura Road, Sarita Vihar,

New Delhi-110076

 

Dr. Surjeet

(Assistant Surgeon)

Indraprastha Apollo Hospital,

Mathura Road, Sarita Vihar,

New Delhi-110076                                                         ….Opposite Parties

 

 

HON’BLE  SH. O.P. GUPTA, MEMBER(JUDICIAL)

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER

 

1.   Whether reporters of local newspaper be allowed to see the judgment?             Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

Present:       Sh. Ashish Mohan, Sh. Akshit, Ms. Mahima Singh and

Ms. Swati Seth, Counsel for the Complainant

Sh. Anand Jain and Ms. Rosy Jha, Counsel for the OP-1

Sh. Anshumaan Sahni, Ms. Tuba Mohdi, Counsel for the

OP-2 and 4

Sh. Arnav Kumar, Counsel for the OP-3

                  

PER:           ANIL SRIVASTAVA, MEMBER

 

JUDGEMENT

1.                 The present complaint filed before this Commission by Sh. Vikas Malik and others, for short complainants, under Section 17 of the Consumer Protection Act 1986 (the Act) relates to the alleged medical negligence in the treatment of a retired Air Force Officer namely Sh. Naresh Kumar Malik the patient since deceased who had walked into the Indraprastha Apollo Hospital, New Delhi hereinafter referred to as OP Hospital, for treatment. The patient was advised to undergo ultra sound test owing to his having developed severe pain on his right upper abdomen and the said ultra sound test indicated the presence of cholelithiasis with locally invasive gall bladder mass, measuring approximately 24mm. He (the Patient) after ten days of admission came out dead from the OP Hospital. Point for adjudication in this complaint is whether there was any deficiency of service on the part of the OP Hospital, arrayed as OP-1 or negligence on the part of treating doctors in the OP Hospital namely, Dr. Sandeep Guleria, Senior Consultant Transplant and General Surgery, Dr. Ajay Kumar, Senior Consultant Gastroenterology, and Dr. Surjeet, Assistant Surgeon, arrayed as OP-2,3,4 respectively, while treating the patient or the end of the patient was natural.
2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           Sh. Naresh Kumar Malik, retired Air Force Officer, having developed severe pain in his right upper abdomen was brought in the Base Hospital, New Delhi for check up. Ultra sound done at the Base Hospital indicated the presence of CHOLELITHIASIS with locally invasive gall bladder mass, measuring approximately 24mm. CT Scan done on following day echoed the findings of the U.S.G.  In these circumstances the complainants brought the patient to the OP-1 Hospital for treatment on 01.04.2013. OP-2 after examining the patient prescribed following tests, namely,

 

1. Complete Blood Count Test
2. Liver Functioning Test (LFT)
3. Chest X-Ray
4. Electrocardiogram
5. MRCP (Magnetic Resonance Cholangio Pancreatography)

All these tests, except, MRCP, were undertaken. The said test, on the recommendations of OP-3, was deferred to be undertaken, after receipt of LFT report.

4.           Based on the reports of the tests done, the OP-2 noted that the patient had presence of stones in his gall bladder with a mass. Accordingly the patient was admitted in OP Hospital on 02.04.2013 for treatment of cholelithiasis (formation of stones in gall bladder) with gall bladder mass. On the scheduled day of surgery (radical cholecystectomy) i.e. 03.04.2013, the deceased suffered from jaundice. However according to the complainants the underlying cause for the jaundice was not probed by OP-2, who nonchalantly gave the clearance for surgery. During the surgery, various standard operating procedures were allegedly given a go-by. Further, during post-surgery, the OPs not only failed to provide due and reasonable post-operative care to the deceased but also acted in a grossly negligent and casual manner leading to rapid deterioration in the condition of the deceased, who eventually passed away on 11.04.2013.
5.           The complainants have alleged that the demise of the patient is wholly attributable to the grossly negligent and deficient services of the OPs. The OPs-2 and 4 miserably failed to exercise due and reasonable care and caution and did not adhere to the prescribed norms and standard medical procedures while handling the patient, leading to his demise. The complainants have further averred that the medical practitioners are required to act with a reasonable degree of skill and knowledge, to be exercised with a reasonable degree of care which includes: a duty of care in deciding whether to undertake the case, what treatment to give and care in administration of that treatment. A breach of any of these duties gives a right of action for negligence. The allegation is that the OPs had completely failed to exercise this “duty of care” towards the deceased. The medical negligence and deficiency in services on the part of the OPs according to the complainants fall within three categories:

 

Pre-surgery lapses

• MRCP test, if conducted, before the surgery would have given a clear picture as to the condition of the deceased. Failure to conduct such a crucial test, despite a plethora of other tests being conducted, was allegedly a serious omission, which resulted in the poor diagnosis of the illness of the deceased.
• On the scheduled day of surgery, the patient developed jaundice, but that was taken nonchalantly by the OP-2, who despite the ailment of jaundice gave the clearance for surgery without making efforts to probe the cause of jaundice though very significant from the point of treatment.
• Without any diagnostic test being conducted to confirm whether the deceased was suffering from cancer of the gall bladder, radical cholecystectomy was performed upon the deceased, in undue haste and without observing standard care and precautions. The report of biopsy conducted post-surgery based on assumptions and without proper diagnosis clearly evidences gross negligence on part of the OPs.

 

Lapses at the time of surgery

• While performing surgery on the deceased, saline was not passed through the bile duct to ensure clear passage, which was contrary to accepted medical practice. This was despite the fact that the deceased had developed symptoms of jaundice.
• During the surgery, hardness found at the bottom of the bile duct of the deceased was assumed to be lymph node, without conducting proper examination of the same;
• Other standard operating procedures were also not followed during the surgery.

 

Post-surgery lapses

• Despite the patient having continuous bilious discharge since the surgery, the OP-2 and 4 did not provide proper care and attention.
• When it was finally decided to perform MRCP (after lapse of six days of surgery), it was not only scheduled at an untimely hour but was also further delayed by another twelve hours from its scheduled time. Making an incredibly weak post-operative patient to fast for long hours knowing that the deceased was not fit for undergoing the procedure, shows the lackadaisical attitude of the OPs, which further aggravated the already deteriorating condition of the patient.
• MRCP conducted on 09.04.2013 revealed stones in distal end of the common bile duct of the deceased. Had MRCP been conducted in time, stones in the common bile duct would have been detected much earlier;
• Considering that both MRCP and ERCP fulfil the same function, by directing an ERCP (which is a more invasive and less safe procedure) after the MRCP, the OPs further jeopardized the life of an already fragile post-operative patient;
• Even while conducting ERCP on the deceased on 10.04.2013, standard procedures, such as factoring the patient’s blood coagulation factor and other vital parameters, were not followed.

6.           The complainants have finally alleged that not undertaking of the said test as also ERCP (Electrograde Retrograde Cholanglopancreatography) even after surgery the OPs have been negligent as, according to them, MRCP is a non-invasive procedure that reflects images of liver gall bladder, bile ducts, pancreas and pancreatic duct.
7.           On 10.04.2013 at 4p.m., ERCP was conducted by the OPs and in view of the swelling the ‘needle knife papillotomy’ was performed and a biliary stent was inserted in CBD. The tests performed at the laboratories of the OP-1, prior to ERCP, found that the deceased had high blood coagulation factor (INR Factor), i.e. 5.1, which was too high from the normal measure of 1.5. Moreover, the ERCP was not backed up with any frozen plasma, which is a standard procedure adopted by medical professionals in the event the INR is above 1.5.
8.           However on 11.04.2013 the patient died. The complainant has alleged that the OPs have been negligent in their conduct at all the stages of the surgery i.e., pre surgery, during surgery and post surgery. Having regard to this the complainants have filed this complaint for the redressal of their grievances praying for the relief as under:

 

1. Direct the OPs to refund the entire medical expenses incurred by the complainants amounting to Rs. 5,02,431/- and
2. Direct the OPs to pay an amount of Rs. 5,00,000/- to the complainants towards mental and emotional agony over the extremely unexpected death of the deceased and
3. Direct he OPs to pay an amount of Rs. 5,00,000/- on account of compensation for loss of human life and prospective life; and
4. Direct the OPs to pay an amount of Rs. 31,000/- as pecuniary damages for expenses incurred by the complainants and
5. Direct the OPs to pay an amount of Rs. 15,00,000/- to the complainants towards extra ordinary damages for deficiency of services by the OPs and
6. Direct the OPs to pay an amount of Rs. 10,00,000/- to the complainants towards loss of consortium and
7. Direct the OPs to pay for the litigation expenses of the complainants and
8. Pass such further orders and/or directions as this Hon’ble Forum may deem fit and proper in the facts and circumstances of the case and in the interest of justice.

 

9.           OPs were noticed and in response thereto three sets of written statements from OP-1, secondly from OP-2 and 4 and finally from OP-3, have been filed resisting the complaint.

 

Defence of the OP-1 Hospital

 

10. The OP-1, the Hospital, have denied any deficiency of service on their part or any negligence on the part of their treating doctors, OP-2, 4 and OP-3. Their version defending both set of doctors is that on examining the patient the OP-2, observing that the patient had a history of jaundice and a strong suspicion of cancer of gall bladder, recommended to get a complete blood count, liver functioning before the treatment could commence advised for LFT Test in addition to UGI endoscopy but for MRCP the opinion was to get it conducted after LFT report is received. The patient was admitted with a diagnosis of cholelithiasis with Carcinoma gall bladder and was planned for exploratory laparotomy and proceed with radical cholecystectomy by the treating consultant. However before performing the surgery which could not have been delayed or deferred keeping in view the condition, all the pre-requisite investigations and PAC were conducted on the patient. The patient was informed about the possible risks and considering all the pros and cons he gave his written consent for the surgery. Post operatively the patient had an increase in bilirubin (14.9 direct 12.4) with normal SGOT and SGPT and a slight increase in alkaline phosphatise. Patient also had anemia (Hb 7), low TLC (4000) and platelets (72000). Since the jaundice was not settling, a Gastroenterologist opinion was solicited from the OP-3. USG abdomen was done on 06.04.2013. On 06.04.2013 he had further increase in serum bilirubin levels. MRCP done on 09.04.2013 was suggestive of a normal biliary tract with a stone at the lower end of common bile duct with splenomegaly with dilated tortuous splenic vein and collaterals. ERCP was done on 10.04.2013 based on the opinion of OP-3 and the papliliotomy cholangiogram revealed stone in common bile duct(CBD), low insertion of cystic duct and leak from cystic duct stump with edema. 
11. However ironically the patient collapsed in the early hours of 11.04.2013. He was shifted to intensive care unit. The patient had a low BP, GI Bleed, hyperkalemia and anuria. The patient was resuscitated with IV fluids, blood transfusion and high inotropic support. Since his blood pressure continued to be low, an urgent endoscopy was done by the OP-3. Angiographic embolization was considered but could not be done in view of unstable condition of patient. The patient did not improve and continued to deteriorate. He had a cardiac arrest. Resuscitation was carried out but the patient could not be revived. But OP-1 and their treating doctors had done their best so far as treatment is concerned at every stage and that there was no deficiency or negligence on their part in the process.

 

Defence of OP-2 and 4

 

12. The OP-2 and 4 in their written statement filed jointly while resisting the complaint and defending their action, have in the first instance highlighted the CT report of Base Hospital which reads as under:-

 

“The study shows pathological thick-walled gall bladder with multiple calculi, stranding of the pericholecystic fat and loss of fat planes with the liver close to fundus, neoplastic etiology needs consideration. Mild thickening of the cystic duct and supra-pancreatic CBD are seen with small nodes in the upper abdomen. There are also changes of liver parenchymal diseases with splenomelagy. Further workup is necessary. The prostate is enlarged.”

 

                                                          (emphasis supplied)

 

Medical literature notes that neoplastic etiology is another terms for cancer.

 

13. The diagnostic analysis of the report very clearly spelt out possibility of cancer of gall bladder besides there being stones on the gall bladder. Thus emergency surgery was advised to the patient for saving his life and/or spreading of cancer as gall bladder was infusing into liver. The patient was consequently advised to get liver function test (LFT), chest x-ray, ECG and MRCP done. Patient was also advised to get upper GI endoscopy done. Such tests were to prepare the patient for surgery, since the possibility of cancer in the gall bladder had already been confirmed. Thus, surgical intervention for removal of gall bladder necessarily became immediate. The complainants themselves did not proceed to get MRCP done on the patient in spite of advice given. As a consequence thereof they were faced with cancerous emergency situation of having to take a call on going ahead with surgery. Finally they have averred that MRCP is another diagnostic tool but not a cure. Their defence to the alleged negligence stage wise is as under:

 

1. Pre-surgery care:-

All requisite precautions were taken. Requisite parameters of medical history of the patient were considered and recorded. In the instant case, the ultrasound and CT scan reports of the deceased had clearly established carcinoma of gall bladder. Pre-operative tests and other tests revealed all the results as normal. The patient and his family members were informed about the possible risks of the surgery. The patient, after understanding the procedure and risk, gave his consent for the surgery. At the time of surgery, the patient was operated through a sub-costal incision. The gall bladder was dissected with blunt and sharp dissection. Since the gall bladder was hard, cystic duct and artery had to be cut by a knife. Under the circumstances this was the only acceptable method of closing a large incision.

2. Post-surgery care:-

Surgery was performed on 03.04.2013 as that could not have been delayed keeping in view the condition of the patient. The gall bladder was successfully removed and the patient was shifted to ICU on the same day at about 7.30 pm and was examined by the anaesthetic expert. The surgery was successful. All parameters were correct. For 24 hours after the surgery, patient was in ICU and during that time there was no symptoms of jaundice. Thus it is evident that the patient was normal and stable after the surgery. For five days after the surgery nothing abnormal was noted in the condition of the patient.

3. After post-surgery care:-

On the 6^th day there was bilious discharge. Possibility of stones in the bile duct was diagnosed leading to jaundice. The patient was referred to OP-3 soon thereafter. ERCP/MRCP was conducted on the patient by OP-3 on 09.04.2013. Hence all the possible steps and care were taken to treat the patient. The OPs 2 and 4 strongly refuted the allegation that they failed to adhere to the prescribed norms and standard of medical procedure leading to the end of the patient.

 

Defence of OP-3

 

14. The OP-3 has also filed his written statement separately, denying the allegation of negligence on his part and he has justified his bonafide at every stage of the treatment, namely,

 

1. Pre-surgery lapses

OP-3 has very strongly refuted the allegation that he had initially advised against conducting of MRCP Test. His observation on the prescription slip noted below would show that he had advised the patient for undertaking the MRCP test but after the receipt of LFT report.

 

          “UGIE 2/4

          CFT

          To decide about MRCP cholecystectomy”

 

The OP-3 has stated that from the above prescription it would be obvious that on 01.04.2014 the patient was categorically advised to report back after getting LFT test/UGIE so that a decision can be taken on MRCP after studying the reports. However, the patient never reported to the OP-3 after getting the LFT test done. Thus, it is factually wrong to state that OP-3 advised the patient not to get MRCP done. It would also be important herein to understand the importance of MRCP test in cases of Cholelithiasis (gall bladder stone). Patients who are suffering from Cholelithiasis (gall bladder stones) can also have associated Choledocholithiasis (blockage of bile ducts by stone) or any other incidental disease. Such associated Choledocholithiasis has been demonstrated in approximately 12% of the Cholelithiasis patients. Blockage of the bile duct is suspected either by presence of jaundice, disturbed Liver Function Test (LFT) or dilatation of bile duct proximal to the blockage. Usually, ultrasound is the best investigation to diagnose or rule out or diagnose bile duct obstruction. If ultrasound or liver function test do not suggest bile duct obstruction but still there is a clinical suspicion of it then cholangiography (MRCP) or endoscopic ultrasound is done.  In other words MRCP cannot be considered as a screening technique to be performed in all the Cholelithiasis patients prior to the surgery as a matter of routine. It should be confined to patients with positive predictive factors., such as clinical signs of jaundice, increased level of alkaline phosphates, dilation of bile duct at ultrasound etc.

In the given case the ultrasound did not show any dilation of the bile duct and neither was there any evidence of clinical jaundice. As per the complaint the patient developed jaundice on 03.04.2013. That is the reason the patient was advised to report back after getting LFT test done. However as stated above the patient never came back for the follow up with LFT report. Thus, it would be completely incorrect for the complainants to allege that OP-3 advised the patient and the complainant not to conduct MRCP.

2. Post-surgery lapses:-

The OP-3 has denied any negligence on his part even in the post surgery stage. The ultrasound report showed dilation of bile ducts (IHBR dilation) and immediately thereupon the patient was advised MRCP which was done soon thereafter. There was no delay in the process.  The patient was examined on day to day basis and had access to instant medical care. During this period, the patient was taken care of by doctors and was being administered medicines as per the standard medical protocol under the direct care and supervision of OP-2 and his team.

The role of OP-3 was limited to merely giving advice/suggestions as and when sought for by OP-2. It was only on 09.04.2013 that the patient was referred to OP-3. The allegation of the complainants is completely contrary to the line of treatment prescribed by the medical literature. MRCP is not a substitute to ERCP as understood. Infact, MRCP is not therapeutic modality as it cannot remove stones, but ERCP can. On 10.04.2013 the MRCP test revealed a normal biliary tract with a stone at the lower end of CBD with splenomegaly with dilated tortuous splenic vein and collaterals. Once it was documented that there is retained stone with jaundice, it was a life threatening condition and required immediate intervention from the OP-3 in the form of emergency ERCP. The patient was in a precarious condition. ERCP did involve high risk but at that time there was no option but to carry out emergency ERCP under the high risk consent in order to save the life of the patient as the patient was not responding to non-invasive medical treatment. ERCP is the only modality recognised all around the world to treat a patient suffering from acute cholangitis and jaundice. The OP-3 has therefore conclusively stated that the line of treatment adopted was correct and not contrary to the medial standards. The OP-3 while undertaking the tests on the patient, performed his duties diligently and exercised his judgment in accordance with the best recognised standards of medical care and precaution. Still, sometimes despites all standards of care and precautions taken during the treatment, if the patient suffers from some ailments arising out of natural consequences of the disease, it cannot per se be called as negligence or deficiency in services.

 

15. The complainants have filed rejoinder and evidence by affidavit reiterating their submissions and controverting the averments contained in the respective written statements. The OPs have also filed their evidence by affidavit supporting the contentions raised by them in their pleadings.
16. The matter was listed before us for final hearing on 04.09.2018 when the ld. Counsel for the parties to the case appeared and advanced their detailed arguments. We have perused the records of the case and given a careful consideration to the subject matter.
17. Shorn of superfluities the issue in the case hinges on the points as under:

 

1. Whether the OPs delayed the MRCP test and thus exposed themselves to any negligence; and,
2. Whether the delay is attributable to the OPs when the complainants themselves did not report to the treating doctors for the said test; and,
3. Whether the conduct of MRCP after LFT would have made nay material difference to the treatment imported to the patient; and,
4. Whether the procedure adopted by the OPs for conducting the surgery on the patient on emergent basis was as per the standard norms.

 

 

18. The ld. Counsel for the complainant stressed that non conducting of the MRCP test at the initial stage had led to the death of the patient. The ld. Counsel for the OPs on the other hand have blamed the complainant since not reported for the test despite both the set doctors having prescribed it. We may in the first instance examine the usefulness of the MRCP test. This test is meant to assess the condition of liver including its passage common bite duct. In these circumstances it is always appropriate to prescribe LFT before prescribing MRCP test which apart from being a sophisticated test is very expensive. Infact this test was prescribed by OP-3 much earlier but to be undertaken after LFT test which act based on the records appears to be correct and did not suffer from any infirmity.
19. Having analysed the significance or otherwise of the MRCP test, we may now deliberate whether the OPs were negligent in the whole process as alleged. For this purpose we may examine what constitutes or accounts for negligence. Negligence per se is defined in Black’s Law Dictionary as under:

 

“Negligence per-se : conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.

 

According to Hulsbury’s Law of England Ed. 4 Vol. 26 pages 17-18, the definition of Negligence is as under:

 

“22.   Negligence : Duties owed to patient. A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case : a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient.

 

20. We may now advert to the facts of the case. The only allegation of the complainant in the subject matter against the OPs is the delay caused by the OPs in conducting the MRCP test. OPs had prescribed the said test. In the best of their judgment this test was recommended to be done after LFT test. No averment has been made by the complainant that the action of the OPs to recommend the MRCP test after LFT suffers from any infirmity or their decision to this effect is coupled with any malafide. If that be the case the allegation of negligence as against the OPs in this behalf cannot be substantiated. The Hon’ble Apex Court in the matter of Achutrao Haribhan Khodwa and ors vs. State of Maharastra and ors as reported in (1996) 2 SCC 634, is pleased to observe that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable but their Lordships have further observed that if the doctor has taken proper precaution and despite that if the patient does not survive then the Court should be very slow in attributing negligence on the part of the doctor. 

 

"A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. 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. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable."

 

Similarly, in the case of Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through K.S. Ahluwalia & Anr. reported in (1998) 4 SCC 39, their Lordships in the Hon’ble Supreme Court is pleased to observe as under:

"Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor."

 

21. In Jacob Mathew’s case as reported in [2008] 6 SCC 1, the  Hon’ble Supreme Court observed as under:

 

“78.   A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. This court in Jacob Mathew’s case very aptly observed that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient."

 

22. In Jacob Mathew’s case (supra), conclusions summed up by the Hon’ble Supreme Court are very apt and some portions of which necessary for the adjudication of the case under consideration, are reproduced hereunder-

 

Negligence is the breach of 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 and 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.

Negligence in the context of medical profession necessarily call 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 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.

The standard to be applied for judging, whether the person charges 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.”

 

23. The Hon’ble Supreme Court is pleased to approve the test as laid down in Bolam versus Friern Hospital Management Committee. The relevant principles culled out from the case of Jacob Mathew versus State of Punjab and Anr as reported in (2008) 6 SCC 1 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 prudent and reasonable man would not do, the definition of negligence as given in Law of Torts, Ratanlal and 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. 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 method of treatment was also available or simple 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 practises. A highly skill 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. 

 

24. The National Commission in the case of 1 (1999) CPJ 13 (NC) titled Calcutta Medicare Research Institute versus Bimalesh Chatterjee and ors ruled that “the onus of proving medical negligence and resultant deficiency in service was clearly on the complainant which in the given case remains unsubstantiated.
25. The Hon’ble Apex Court in the matter of Kusum Sharma versus Batra Hospital as reported in (2010) 3 SCC 480, was pleased to hold as under:

 

“Negligence is an essential ingredient of the offence. The negligence to be established by the persecution must be culpable or gross and not the negligence merely based upon the error of judgment.

 

26. We have examined the records, read and re-read the evidence led. The averment and allegation of the complainant in the entire case is that the delay done in conducting the MRCP test has resulted in the end of the patient, but while saying so they have ignored the vital point that both set of treating doctors had recommended this test to be undertaken  after LFT test. There exists no explanation in the entire pleadings as to why the complainant or the patient did not revert back to the doctors after LFT. Secondly the OP-2 when realised the seriousness of the condition, proceeded with the surgery without waiting further or else the condition would have deteriorated further. This clearly goes to establish bona fide of both the set of doctors at every stage. The negligence is only alleged but no where established. In view of above discussion and in the light of the law laid down by their Lordships we are of the considered view that there is no substance in the allegation of the complainant to the effect that the OPs were negligent. Accordingly we dismiss the complaint being devoid of merit, leaving the parties to bear the cost.
27. Ordered accordingly. Let a copy of this order be forwarded to the parties to the case free of cost as statutorily required and file be consigned to record.

 

 

(ANIL SRIVASTAVA)                                                                                          (O.P.GUPTA)

     MEMBER                                                                                          MEMBER (JUDICIAL)