Pronounced on : 14th March, 2012 ORDERPER JUSTICE V.B. GUPTA, PRESIDING MEMBER Present appeal has been filed by the appellants against order dated 25.7.2005 , passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short ‘State Commission’). 2. Brief facts are that Sri Pundalik Shenoy, complainant (since deceased) filed complaint before the State Commission against appellants and respondent no.4 seeking compensation of Rs.19,82,853/, along with interest @ 24% p.a. from the date of receipt of notice dated 21.11.1996, and such other relief deemed fit. 3. During the proceedings, complainant died and his legal representatives have been brought on record. Dr. Nityananda Shetty (who was respondent no.3 in State Commission) expired during the proceedings and was deleted from the complaint, vide order dated 18.11.2004, of the State Commission. 4. It is alleged that deceased-complainant was admitted in appellant no.1’s hospital on 17.2.1996 with pain in the left leg, which was diagnosed as Deep Vein Thrombosis of the left lower limb. Complainant was indoor patient from 17.2.1996 to 24.2.1996 and was advised to take oral anti-coagulants. Later on, complainant developed breathlessness and as immediate measure was admitted to a local hospital near his residence. Thereafter, he was shifted to appellant no.1’s hospital on 21.5.1996 and was taken as in-patient. Complainant was treated for some time and was advised by appellant no.3 to undergo implantation of IVC filter to cure his ailment. At the time of advice, appellant no.3 did not care to inform complainant or his two younger brothers who accompanied him, as to the pros and cons of the same. But, peremptory opinion given by appellant no.3 to them was that unless the said implantation was not done, patient could not get any relief. Appellant no.3 asked for an advance of Rs.14,321/- towards implantation. After deposit of the same, appellant no.3 proceeded to conduct the implantation. Complainant agreed to undergo the said implantation without demur. In view of the advice of appellant no.3, that filter implantation was the only curative and life saving measure for deep vein thrombosis, it was done on 30.5.1996 by a team of medical experts headed by appellant no.3, including respondent no.4 and Dr.Nityanand Shetty (since deceased) who were attached to the hospital in their professional capacities. The said implantation was done through the Right Internal Jugular Vein cannulation. The entire process was visibly projected on Image Intensifier and patient was watching it. It was conducted by appellant no.3 and assisted by other doctors including respondent no.4. After about half an hour the said process had commenced, complainant suddenly suffered from a piercing ache and internal slab pain, around the region of heart & chest and lost consciousness. When he recovered, he was given to understand by appellant no.3 and respondent no.4, that the said implantation was successfully performed and while doing so there had been certain incidental complication, that is, there was a tear in the Right Ventricle and they were required to perform Median Sternotomy, an operation for the closure of the right ventricle tear which was of a common nature associated with such implantation. The said surgery was done as an emergency for closure of right Ventricle tear. The tear had been caused due to cardiac perforation which had led to tamponade, as told by them. The patient believed it, as there was no reason to disbelieve at that time. He was in the Intensive Care Unit and treated there till 12.6.1996, when he was discharged. Complainant had to spend Rs.1,05,000/- being the cost of implantation including professional charges, cost of IVC filters and expenses for pre and post implantation treatment, hospitalization charges, cost of expenses incurred for the surgery of Median Sternotomy and other miscellaneous, incidental charges and expenses covering post operation also. 5. Thereafter, complainant was advised by appellant no.3 and respondent no.4, to visit hospital for treatment and dressing which was done. He was also asked to visit for post operation observation, which he did. Complainant developed acute pain after the said operation which continued even after discharge. When he complained to appellant no.3 and respondent no.4, they went on consoling him by stating that pains were normal and usual and in due course of time, it will subside. He not only believed them, but also bore with the chest pain which increased considerably and steadily and it started radiating all over the chest and back, instead of subsiding. Complainant had reasons to doubt about the efficaciousness of the implantation treatment and the operation conducted by the appellants. When pain became totally unbearable, complainant who by the said time had lost faith in the appellants, got himself admitted in Vittal Mallya Hospital on 6.8.1996, where it was diagnosed as wound infection of Sternotomy, which was due to the perforation of R.A.I.R.V. coupled with massive pericardial effusion. After the surgery of Median Sternotomy by the appellants, there was a drainage of effusion from chest wound causing radiating pain all over the chest. The said infection pericardial effusion and radiating pain had all been caused due to the negligent and carelessness with which the said Median Sternotomy operation was conducted by the appellants on 30.5.1996. Complainant was advised to undergo operation for Sternal Wound Exploration, wire removal of right coastal cartilage excision. The said wire had been inserted by the appellants at the time of Median Sternotomy surgery which was required to be removed after the operation, which they never took care to do so. Complainant had no option but to undergo the surgical operation at the Mallya Hospital, as otherwise, it would have become fatal. Complainant had to remain there as in-patient from 6.8.1996 to 10.8.1996 and had to spend about Rs.19,500/- being the pre-operation, laboratory and other tests, hospitalization charges, operation charges, medicines, for treatment, other incidental and miscellaneous expenses including post operation medical expenses. Even after discharge from Mallya Hospital, complainant did not get well due to infection and abysses of XIPHISTERNUM adjoining the 8th and 9th coastal cartilage and OSTEOMYCLITIS of lower end sternum which was the result of the negligence of the appellant no.3 and respondent no.4, in conducting the Medians Sternotomy surgery. Complainant had to undergo yet another operation at Mallya Hospital which was solely necessitated on account of the negligence of the appellants as stated above. Again he had to spend Rs.25,000/- being the cost for laboratory and other tests, hospitalization charges, operation charges etc. In view of the subsequent surgical operation at Mallya hospital and after making enquiries with persons in medical field, complainant learnt as an utter shock that there was no necessities what so ever for filter implantation and the said process was never understood in the medical field as being a curative one, much taken less the life saving measure. Appellant no.3 claims to be an expert in field of implantation, has taken a risk to study the implantation process at the cost of patient’s life. Other appellants and respondent no.4 are parties to conspiracy in experimenting the same on the life of the complainant, and were also aware that the said process is unusual one and rarely advised by medical experts throughout the world and knowingly well that the same was not lifesaving or curative one. 6. Appellant no.3 and respondent no.4, had been totally careless and negligent even while performing IVC implantation, which was not at all necessary. The filter implantation was even monitored through the Image Intensifier Screen and entire process could be watched. Pig Tail catheter inserted through the jugular vein, went astray due to their negligence and carelessness and it got inserted into right ventricle causing tear. Appellant no.3 and respondent no.4’s negligent attitude thereafter, too is apparent as they could have pulled the same and redirected properly. Facts speaks for itself, as could be seen from the nature of the tear caused to the right ventricle that no such care and diligence was exercised. It could not have normally occurred except by excess assertion of force while inserting the same which indicate their negligent and carelessness and lack of experience while performing the implantation. The general medical opinion is that such a tear never occur and are very rare. The chances of deflection of applicator capsule into the right ventricle is generally overcome by applying the torque to the inserting catheter using appropriate method or by turning the patient. Appellant no.3 and respondent no.4, have not taken any precautionary steps of using appropriate method or by turning the patient. They have not even taken the steps to overcome such eventuality of deflection which could have been foreseen and lack of it resulted in the tear of the right ventricle. The Median Sternotomy operation had not been conducted in the manner it was required to be done. The very fact it led to wound infection and pericardial effusion and draining of the same, necessitating further operation and treatment at Mallya Hospital to overcome, shows that appellant no.3 and respondent no.4 had either during the said operation or earlier thereto in implantation, have not taken any care and caution much less the least minimum care and caution expected while performing such implantation. Appellant no.3 and respondent no.4 have played fraud and practiced deception on the complainant, as they never care to inform the exact nature of the operation conducted by them on 30.5.1996. Complainant had issued legal notice on 21.11.1996 to the appellants highlighting the above factors to which they replied on 16.12.1996, denying their liability and raising series of false, reckless, frivolous excuses to overcome their negligence and carelessness. 7. Complainant prior to the said operation, was employed as Sales Officer of M/s Bharath Trading Co. He had put in 24 years of service. He had been a very energetic person. After the implantation and operation, he has become a total recluse. He had been undergoing treatment regularly and was advised that he will have to undergo treatment for an indefinite period but at the same time without much hope of improvement. The negligence and carelessness by appellant no.3 and respondent no.4, has affected his health and mortality, apart from depriving sources of livelihood. He has become burden to his family, i.e. wife and 2 young daughters, which has caused severe mental tension. He has to undergo Psychiatric treatment for Pschomatic Fobic disorder on account of above facts. He requires the assistance of third parties for his daily cores. He was earning Rs.65,000/- p.a. before he was hospitalized. He had bright future, but for the negligence of appellants, he would have not only continued to earn the said amount and would have gained more during the subsequent period considering the normal increments till the age of 60 years. His average income as per modest estimate is Rs.65,000/- per year and making provisions for the increments, he would have earned not less than Rs.1,10,000/- p.a. on 60th year. In all, for the period from 1997 to 2009, he would have earned not less than Rs.12.50 lakhs. Accordingly, complainant claimed total sum of Rs.19,82,853/- as damages which include for reimbursement of charges and treatment – Rs.1,05,000/-, hospital expenses Rs.44,520/- in Mallya Hospital Expenses. Loss due to earnings, 2/3rd of Rs.12,50,000/- i.e. Rs.8,33,333/- and compensation for pain and agony and future medical expenses Rs.10.00 lakhs. 8. Version of appellants and respondent no.4 is that, the facts and circumstances of the case requires elaborate oral and documentary evidence to decide the issues raised by the complainant, which is not suitable for adjudication in a time bound proceedings under the Consumer Protection Act, 1986 (for short as ‘Act’). It involves complicated questions of disputed facts in medical science and jurisprudence, which can be decided only after elaborate trial and scrutiny of various documents based on the expert opinion. This is a fit case to be decided by way of ordinary civil suit. 9. However, it is admitted that complainant was admitted in their hospital with the complaint of pain in the left leg on 17.2.1996 which was diagnosed as Deep Venous Thrombosis of the left lower limb. Complainant was in-patient from 17.2.1996 to 24.2.1996 and was discharged with the advice to take oral anti-coagulants. The fact of admission of the patient to a local hospital near his residence after he developed breathlessness at Vijayanagar and later on shifted to appellant’s hospital on 21.5.1996 is admitted. The cause of breathlessness is on account of complainant’s not following the medical advice at the time of discharge from the hospital at the first instance. The complainant was admitted for the second time to the appellant’s hospital on account of his utter carelessness, latches and negligence in not following the medical advice at the time of discharge from their hospital. He developed breathlessness and also Haemoptysis. On observation, he had recurrent deep Venous Thrombosis and Pulmonary Embolism. Initial conservative treatment given was rest and elevation. He was started on herparin streptokinase and other resuscitative measure. In spite of this, he had recurrent episode of pulmonary embolism. After consultation and informing the complainant and his relatives about the advantages and disadvantages of the procedure of IVC Filter Implantation, besides the risks involved, he was offered an insertion of IVC Filter Implantation to prevent fatal pulmonary embolism due to the recurrent attacks only as a life saving measure and not as a cure in Deep Venous Thrombosis. Complainant consented for the said implantation offered by the appellants and made part payment towards the cost and surgery for the said implantation, was performed on 30.5.1996. The IVC Filter was inserted through the right internal jugular route, is admitted. 10. The process of implantation was projected on Image Intensifier. While performing the said procedure, complainant had cardiac tamponade and as an emergency was treated by the surgical exploration as it was the only chance of saving the patient’s life at that stage. It is a known complication during the said procedure and if not diagnosed in time and operated upon i.e. Median Sternotomy Operation, the patient would have ended up in fatality. The cardiac tamponade is rare one. After the operation, sternotomy was closed using sternal wires and the patient had complete healed Median Sternotomy wound at the time of discharge on 12.6.1996. He was asked to follow up for some time as the pain in the region of operation in the normal course would last from few weeks to few months, till the bone union takes place, at the time of discharge. Except for the hospital charges for the said implantation treatment collected from the patient, they are not aware of any other expenses incurred by him. Rs.1,05,000/- mentioned is exorbitant and excessive. Complainant did not follow up the post operation treatment as advised. For the reasons best known to him, he did not visit the hospital regularly after his discharge on 12.6.1996. There is no reason for the complainant to doubt about the efficaciousness of the appellant no.3 and respondent no.4, since they are doctors of repute and the whole exercise and their efforts was done with due care and caution as a life saving measure with bonafide intention to save the patient. In case of Median Sternotomy operation, pain in the region may last for few weeks to few months. The post -operative complication put forth in the complaint were not brought to their knowledge, besides no follow-up treatment was taken by the patient, as advised. After Sternotomy operation which was closed using sternal wire and the removal of the said wires is postponed for 8-10 weeks to prevent sternotomy dehiscence failing which it will lead to yet another emergency. 11. The operation at Mallya Hospital is as a result of negligence and lapses for not taking follow-up treatment regularly as advised to the patient. The very fact that complainant is still suffering and did not recover despite the treatment at Mallya Hospital, goes to show that the complications developed by complainant, are for the reasons beyond the control of the appellants and the same is despite the best diligent efforts of the appellants and maximum use of their knowledge, skill and expertise. The said post-operative complications are unpredictable, since medical science is empirical and in the normal course none could foresee development of such complications since human body is complex and subjective. The suffering of the complainant after discharge from Mallya Hospital, cannot be attributed to the negligence of the appellants in conducting the Median Sternotomy operation, which was done with due care and caution. 12. The procedure does not involve using Pig Tail Catheter in the operation and patient was ill advised in the matter and has made wild allegations without proper verification, authenticity of facts on medical field, only to make a case to suit his convenience. There is no evidence of pericardial effusion. Requisite care and caution were taken by the appellants subsequent to the Median Sternotomy operation. Appellants appropriately replied the legal notice dated 21.1.1996 highlighting the true facts. Basis arrived at for making the claim are false motivated and imaginary. The claim is unrighteous, unjustifiable and without precedents, and against the well-established cannons of law and medical literature. There is no logic or rational for such claims under various heads. The huge amount of claim manifest the dishonest intention to make a wrong gain. The complainant exaggerated the claim of Rs.19,82,853/- under various heads. By making false allegations, the complainant is trying to cover up his own lapses and latches and as such is not entitled for any compensation and interest on the claim amount. 13. State Commission, vide impugned order, allowed the complaint in part and held that, respondent nos.1 to 3 (legal heirs of the complainant) are entitled to compensation of Rs.2,00,000/- (Rupees two lakhs only) from the appellants and respondent no.4. Accordingly, they were directed to pay the said amount jointly and severally, within six weeks from the date of receipt of order failing which, to pay interest @ 12% from the date of complaint, till realization. Further, they had to pay Rs.2,000/- (Rupees two thousand only) to respondent nos.1 to 3. 14. Aggrieved by the impugned order, appellants have filed the present appeal. 15. In addition to oral arguments advanced by learned counsel for the parties, appellants as well as respondent nos.1 to 3, have also placed on record their written submissions. 16. It is contended by learned counsel for appellants that evidence of (CW1) (who is wife of deceased complainant) does not help much in proving the alleged omissions of the appellants in treating the patient and performing the operation. 17. It is also contended that respondents no.1 to 3 have not examined any expert much less the doctors of Mallaya Hospital to prove or corroborate the allegations made in the complaint. Moreover, the discharge summaries of Mallya Hospital does not speak about negligence of the appellants. 18. It is further contended that State Commission, as a matter of fact has neither found that the appellants were negligent nor found that appellants had not exercised due and reasonable care and skill. As such merely holding that there is deficiency in service in one sentence without any basis and necessary findings is wholly illegal, arbitrary and unsustainable, both in law and on facts. Deficiency in service must necessarily have nexus to the negligence or want of reasonable care and skill, which is lacking in the instant case. Hence, impugned order is illegal and without any legal basis. 19. It is also contended that State Commission wrongly held, that deficiency in service has resulted in the death of patient, which in the admitted and proven facts and circumstances of the case, is unsustainable. The treatment and operation was done in May 1996. The death is not admittedly instantaneous or natural. The complainant committed suicide on 8.4.2000, i.e., nearly after 4 years. It has come on record that the treatment and operation performed by the appellants was success which saved the life of the complainant, arrested the blood clot moving to heart by deployment of IVC filter, prevented from recurring attacks of pulmonary embolism etc. Such being the case, it is totally illegal, arbitrary and contrary to materials on record, to say that there was deficiency in service resulting in death. The alleged suicide note is dated 9.4.2000, whereas, death is admitted to have taken place on 8.4.2000 and as such, it is a document which is ingeniously created and concocted for the purpose of the case with some ulterior motive. Hence, the same is un-reliable, irrelevant and of no consequence. Moreover, the alleged suicide note is not proved to have been written and left by the deceased and it is inadmissible in evidence. Even otherwise, having regard to the facts, evidence and circumstances in the case, the alleged suicide note cannot help in establishing negligence or want of skill and care so as to hold appellants deficient in their service and saddle them with the liability to pay compensation. 20. It is also contended that method and procedure followed for deployment of IVC filter through right internal jugular vein cannulation to prevent fatal pulmonary embolism was a well-known practice and was the right approach and was in the right direction, as per medical science and practice. Further, the cutting open of the sternum to tackle cardiac arrest was consequential and was beyond the control of appellants without which the complainant would have collapsed. Both the procedure adopted are accepted in medical science and practice and were infact successfully carried out without any negligence and with all due care, skill and caution. There is no direct surgery to clear and cure the deep vein from the clotting that has occurred to the complainant. The only treatment that is available is to first arrest the clot and prevent the spread of further clotting by IVC filter like mechanism which had to be done to prevent the clots from going up via heart, which otherwise causes blocking to pulmonary vessels. 21. It is also contended that pros and cons of IVC filter implantation and the expected/known complications, risks and tearing were explained to the complainant and his brothers, who in-fact after having understood agreed for the procedure. Moreover, RW1 in his cross examination has clearly stated that due care and caution was taken while inserting the IVC filter and tear is a known complication as per the medical science. 22. In their written submission, appellants have made reference to the following book ; (i) Book on the Thrombosis interest group of Canada-clinical Guide-IVC Filters (November 2004) : in particular to following passages : A. Short – term complications : Extravascular penetration of guide-wire. (ii) Update on inferior vena cava filters : Complication Rate (5) Death linked to insertion of an IVC filter 0.12 Complication from insertion 4.11 Complication from insertion include puncture site complications such as bleeding, infection etc. 23. Thus, when due care and precautions had been taken by appellants while inserting filters, they cannot be held negligence because of tear that occurred which is a known complications. 24. Lastly, learned counsel in support of her contentions relied upon following judgments :- (i) Dr. Kaushal Pandey Vs. S.V. Panchori and others, 1986-2009 Consumer 15230 (NS) ; (ii) C.P. Sreekumar (Dr.), MS (Ortho) Vs. S. Ramanujam, (2009) 7 SCC 130 and (iii) Postgraduage Institute of Medical Education and Research Chandigarh Vs. Jaspal Singh and others (2009) 7 Supreme Court Cases 330. 25. On behalf of respondents nos.1 to 3, it is contended by learned counsel that pain started after surgery at appellant no.1 hospital in May, 1996, and the pain progressively increased. However, the pain used to decrease on taking analgeries. The pain radiated all over the chest, radiating to back also. 26. It is also contended that due to negligence of the doctors, the catheter which was inserted through Right Juglar Vein was in fact inserted into the right ventricle causing the right ventricle tear. Such types of tear never occur and the changes of applicator into the right ventricle is usually overcome by applying Torque to the inserting catheter and/or by turning the patient and operation known as Median sternotomy was conducted for the closure of right ventricle tear. Even after operation, the patient was going to appellant no.1 hospital for post-operative care. He visited the hospital on 14.6.1996, 24.7.1996, 26.7.1996 and met Dr.Nityanand Shetty (since deceased) at Medinova. Even though, the patient was suffering unbearable pain and pain radiated over the entire body, but doctors at appellant’s no.1 hospital were telling the patient that such pains were very common. When the pain became unbearable, the patient on 6.8.1996, got admitted himself to Mallaya Hospital. The discharge summary of Mallaya Hospital clearly states that complainant was suffering from pain which radiated all over the chest and radiating to back also. It also states that after surgery there was drainage from the chest wound and the pain radiating all over the chest. 27. Thus, it is contended by learned counsel that it clearly shows that the doctors at appellant hospital were negligent. 28. Lastly, learned counsel for respondent nos.1 to 3 relies upon Medical Jurisprudence with regard to Inferior Vena Cava Interruption, Chapter-38 page no.582, which clarifies the process of operation in such cases. Thus, it is clear that it is a case of gross negligence by the appellants. 29. On 15.11.2010, when the matter was listed before this Commission for final arguments, it was thought expedient to obtain the opinion of a body of medical expert in the field and interalia following order was passed ; “Having considered the matter and the kind of controversy involved in this appeal viz. somewhat complicated issue as to whether the treatment given by the appellants to Late M.Pundalika Shenoy was proper or not or there was any negligence/deficiency committed in the said treatment, we consider it expedient to obtain the opinion of a body of medical experts in the field. We, therefore, direct that a reference be made to All India Institute of Medical Sciences (AIIMS), New Delhi for constituting a Board of three medical experts from the field of Cardiology/Cardiac surgery to give their opinion in the matter. Let the entire record of treatment, which Late M.Pundalika Shenoy received at Ramaiah Institute of Cardiology at Bangalore as also that of Mallya Hospital, Bangalore, where he received subsequent treatment be forwarded to the Medical Superintendent of AIIMS with a request to do the needful in the matter and to send the report of the expert body within a period of four weeks from the receipt of the same. The record contained in Volume – V & VI as also Discharge Summary of Mallya Hospital appearing at page nos.10 & !1 of the written submissions filed by the counsel for the respondent be also forwarded to AIIMS.” 30. In pursuant to the above order, Medical Board of three medical experts from Cardiology/Cardiac Surgery was constituted by AIIMS, New Delhi. The expert Committee submitted its report dated 13.1.2011. Relevant extract of this report are reproduced as under ; “With reference to the above, the meeting of the expert Committee was held on 6.1.2011 and was attended by the following members : Dr.A.K.Bisoi Chairperson Dr.Rajiv Narang Member Dr.Sachin Talwar Member The opinion of the Committee was sought whether the treatment was proper or improper/negligence/deficiency in the case of Mr.M.Pundalika Shenoy. The Committee members scrutinized the available medical records in details. Mr.M.P.Shenoy, 44 years old Gentleman was initially admitted to M.S.Ramaya Institute of Cardiology with complaint of pain in the left leg extending from the hip to the foot. Doppler Ultrasound of the leg which had been done somewhere else was suggestive of deep vein thrombosis which was also consistent with the clinical findings. Considering this the patient was managed conservatively with anticoagulant and was discharged on 24.2.1996. The management at the time of his admission was appropriate. Subsequently, the patient was readmitted to the same Institute on 21.5.1996 with complaint of acute onset of breathlessness and moderate hemosptysis for the last three days duration. Apparently, he had discontinued the anticoagulant. The clinical findings were suggestive of deep vein thrombosis with pulmonary thromboembolism. Inj. Steptokinase was administered for thrombolysis which was followed by improvement in the symptoms. The patient underwent Echocardiography on 21.5.1996, which was normal. Abdominal CT Scan on 27.5.1996 showed normal inferior vena cava (IVC) with right lower lobe consolidation with plural effusion. The Echo cardiography on 27.5.1996 showed mildly dilated Right atrium and right ventricle (RA & RV). A perfusion scan was advised on 28.5.1996 (report not available). In view of the clinical findings, a diagnosis of recurrent pulmonary thromboembolisum was made and implantation of an IVC filter was performed on 30.5.1996 which was the appropriate management strategy. However, during the procedure the patient developed cardiac perforation and temponade for which the patient required emergency surgery in the form of sternotomy and drainage of pericardial collection and repair of the tear in the RA – RV Junction. The complication is a known one with this procedure and was managed quickly and appropriately which saved the life. Subsequently, recovery appear to be uneventful and Mr.M.P.
Shenoy was discharged from the hospital on 12.6.1996 in a satisfactory condition. There is a subsequent discharge summary from the Mallya Hospital from Bangalore Aug., 1996 which mentions that the patient had been having chest pain for two months and was having infection of sternotomy wound. To manage this sternal wound exploration, along with removal of right costal cartiladge was done on 7.8.1996. This was an appropriate management. His post-operative recovery uneventful and was discharged. However, there are no subsequent records. Final impression after going through the details of the available records the committee members are of the opinion that the management of the patient was appropriate and as per standard guidelines. The patient did develop a known complication requiring emergency surgery but it was performed as per the standard guidelines for managing the complication. There does not appear to be any negligence/deficiency /improper care in this case.” 31. Thus, committee of experts in its report has categorically observed that ; “the patient did develop a known complication requiring emergency surgery but it was performed as per the standard guidelines for managing the complication and there does not appear to be any negligence/deficiencies/improper care in this case”. 32. In view of the above expert opinion, we find no reasons to disagree with it. 33. Admittedly, deceased who had undergone treatment in appellant’s hospital during 1996, has committed suicide on 8.4.2000. However, this suicide note is dated 9.4.2000, i.e., one day after the death. This clearly shows that suicide note is a fabricated document. Thus, there can be no nexus with the cause of death which took place on 8.4.2000 and the treatment which deceased had undergone in appellant’s hospital in May, 1996. 34. In C.P.Sreekumar (supra), with regard to medical negligence, Apex Court has observed ; “27. The basic principles under which a case of medical negligence as a criminal offence as also a tort has to be evaluated has been succinctly laid down Jacob Mathew V. State of Punjab. One of the primary arguments raised by the respondent herein is that the appellant Dr.C.P. Sreekumar, though qualified in Orthopaedics, did not have the basic skill to carry out a hemiarthroplasty or an internal fixation and for that reason was not competent to perform the procedure. 28. In Jacob Mathew case this Court adopted the test laid down in Bolam Vs.Friern Hospital Management Committee in which it has been observed as under : “…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.” This Court then observed that this judgment in Bolam case had been followed repeatedly not only in India but in other jurisdictions as well and that it was the statement of law as commonly understood today. 29. In paras 24 and 32 of Jacob Mathew case, it has been observed thus ; “24. The classical statement of law in Bolam case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practioners in particular. It has been invariably cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident) and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used. 32. At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are : (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds ; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon ; and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation, the person holding the ‘smoking gun’.” These observations postulate the underlying principle that too much suspicion about the negligence of attending doctors and frequent interference by courts would be a very dangerous proposition as it would prevent doctors from taking decisions which could result in complications and in this situation the patient would be the ultimate sufferer. 30. Jacob Mathew case was followed in State of Punjab Vs.Shiv Ram which was a case of a failed tubectomy leading to a plea of medical negligence. This is what this Court had to say in para 33.(Shiv Ram Case) “33…. A doctor, in essence, needs to be inventive and has to take snap decisions especially in the course of performing surgery when some unexpected problems crop up or complication sets in. it the medical profession, as whole, is hemmed in by threat of action, criminal and civil, the consequence will be loss to the patients. No doctor would take a risk, a justifiable risk in the circumstances of a given case, and try to save his patient from a complicated disease or in the face of unexpected problem that confronts him during the treatment or the surgery. It is in this background that this Court has cautioned that the setting in motion of the criminal law against the medical profession should be done cautiously and on the basis of reasonably sure grounds. In criminal prosecutions or claims in tort, the burden always rests with the prosecution or claimant. No doubt, in a given case, a doctor may be obliged to explain his conduct depending on the evidence adduced by the prosecution or by the claimant. That position does not change merely because of the caution advocated in Jacob Mathew in fixing liability for negligence on doctors.” 35. In PGI, Chandigarh (supra), the Supreme Court has observed ; “19. With regard to the professional negligence, it is now well settled that a professional may be held liable for negligence if 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 not possess. It is equally well settled that the standard to be applied for judging whether the person charged has been negligent or not ; would be that of an ordinary person exercising skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.” 36. in view of the above principles of law laid down by the Apex Court, it is to be seen as to whether there is any negligence on the part of the appellants and respondent no.4 or not. 37. CW1, who is the wife of deceased – complainant, in her evidence has stated that ; “Her husband was an in-patient for eight days in the hospital and he was given injection and tablets and doctors used to come and examine him. He complained of pain, which gradually subsided, and he was fully recovered at the time of the discharge. Tablets were prescribed to him at the time of discharge. But 2-3 months after the discharge, he attended the job and afterwards, they did not go for check-up to the OP1 hospital as he was alright.” 38. State Commission, in its impugned order has categorically held that complainants have not substantiated their case. Relevant findings in this regard read as under ; “But, as already discussed above evidence of CW1 has shown the admission by her regarding the improvement the condition of the patient after the treatment by the Ops differing from the complaint allegations. As already discussed above, the corroborative evidence of an expert is wanting in this case to support the allegations in the complaint about the lacunae in diagnosis, operation, and post-operative care by the Ops. The doctors at Mallya Hospital who have opined in support of the complaint are the best supporting evidence, which is not availed. Ext. C1 to C4 do not support allegations of the complaint. But, discloses the existing state of affairs in the condition of the deceased patient at the time of the discharge from the respective hospitals. Discharge summary of Mallya Hospital nowhere states that the sternal wound exploration and excision of 8th and 9th coastal cartilage and sinus exploration are the result of the implantation of the IVC filter done on 30.5.1996 in the OP1 hospital. The evidence of CW1 is not supported by any corroborative material in that regard, such as the presence of the persons when the doctors at Mallya Hospital commented on the implantation of IVC filter, and its after effects in the OP1 hospital. Under these circumstances, the complainants have not substantiated their case.” 39. Thus, looking from any angle, we do not find any medical negligence on the part of the appellants as well as respondent no.4. Consequently, appeal filed by the appellants is hereby accepted and impugned order passed by State Commission is set aside. With the result, the complaint stands dismissed. 40. Amount deposited by the appellants at the time of admission of the present appeal, if not already withdrawn by respondent nos.1 to 3, be refunded back to the appellants after expiry of the period of limitation for filing of appeal/revision, if any. 41. Parties shall bear their own costs. | 
