PER MR. JUSTICE V.B.GUPTA,  PRESIDING MEMBER

Petitioner/Complainant has filed this revision petition under section 21(b) of the Consumer Protection Act, 1986 (short, ‘Act’) challenging order dated 12.11.2010 passed in (First Appeal No.1038 of 2004) by Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (short, “State Commission”).

2.       Brief facts are that Petitioner/Complainant was admitted in the hospital of Respondent No.1/Opposite Party No.1 on 8.1.2000 for complaint of stomach pain. She was examined by Respondent No.2/Opposite party No.2 and was operated for appendicitis by him on that day itself.  Subsequently, she was treated in the hospital till 15.1.2000 and was finally discharged.  Since, the condition of petitioner was very serious so on reference from respondent hospital, again she was admitted in General Hospital, Pathanamthitta. She was treated there till 29.1.2000 by Dr. K.T.Sebastian. Thereafter, she was treated as an out-patient in the same hospital till 28.3.2000. Again petitioner got serious pain and was admitted in General Hospital on 28.3.2000 and discharged on 6.4.2000. The petitioner is continuing the treatment as out-patient. It is stated that petitioner had suffered huge monetary loss and mental agony for more than seven months.  It is further alleged that the loss sustained was due to the rash and negligent and irresponsible act and operation treatment of the respondents.  Thus, petitioner filed a complaint to get reimbursement of treatment expenses with compensation and cost.

3.       Respondent no.2 was duly served but did not appear before the District Forum.

4.       Respondent no.1 in its written statement has stated that petitioner was first seen in the O.P.D. on  8.1.2000 with history of severe abdominal pain.  The patient was a known hypertensive and diabetic.  The case was referred to respondent no.2, as acute Appendicitis/Ruptured Appendix was suspected. That was the final diagnosis made by the surgeon clinically.  The surgery was performed by respondent no.2 on 8.2.2000 itself after obtaining the consent of the patient and her husband.  On surgery, it was found that she was having a rapture in the intestine near to the Ieocaeseal junction.  Peritoneal cavity was full of pus.  Appendix could not be identified because of the infections and adhesions.  So, the pus was manually removed and after that a drain was put.  The intestine was repaired.  She was carefully and properly managed with three antibiotics for control of infection. This is the treatment which can be given by any surgeon under like circumstances.  However, the desired improvement was not seen to the satisfaction of the patient.  So, she requested for a discharge for better treatment. Thus, she was discharged at 12 noon on 14.1.2000 at her own request and was allowed to leave the hospital even without final payment. The averments regarding the loss suffered and expenditure incurred by the petitioner are not true.  Answering respondent is not responsible for any loss sustained by the petitioner. The claim of the petitioner that she sustained loss due to rash and negligent irresponsible act was denied. She was given the best treatment with utmost care and there was no deficiency of service, as there was no negligence at any stage of the surgery.  Hence, respondent no.1 prayed for dismissal of the complaint.

5.       District Consumer Disputes Redressal Forum, Pathanamthitta (short, ‘District Forum’) vide order dated 11.8.2004, while allowing the complaint, passed the following directions ;

    “In result, this petition is allowed with modification, thereby the petitioner is allowed to receive treatment expenses amounting Rs.7,000/- (Rupees seven thousand only) for her treatment in the hospital, respondent no.1 together compensation Rs.75,000/- (Rupees Seventy Five Thousand only) and towards treatment in the General Hospital, the petitioner is allowed to receive Rs.5,000/- (Rupees five thousand only).  In addition to the said amounts, she is allowed to receive Rs.2,500/- (Rupees two thousand five hundred only) towards loss of income by way of coolly of her husband on account of his necessity to accompany the patient during her treatment in the hospital as well as the General Gospital, Pathanamthitta. Towards other expenses in the said hospitals, she is allowed to received Rs.5,000/- (Rupees thousand only) and she is also allowed to get Rs.3,000/- (Rupees three thousand only) from the first and respondents, as the cost of proceedings.  The respondent nos.1 and 2 are jointly and severally liable to pay the amounts awarded towards medical expenses, other expenses and compensation.  For the medical expenses amounting Rs.12,000/- she is allowed to receive interest @ 12% per annum for that amount from the date of this petition till this date, and thereafter, at 6%  interest per annum till whole payment. The respondents are directed to pay the amounts so awarded as per this order within two months from the date of receipt of this order, failing which the interest for the medical expenses will follow at 9% per annum till whole payment.”

6.     Aggrieved by the order of the District Forum, respondent no.1 filed an appeal before the State Commission which allowed the same, vide impugned order.

7.     Hence, this revision petition.    

8.       We have the heard learned counsel for the parties and have gone through the record of the case.

9.       During pendency of this petition, petitioner filed an application seeking permission to delete respondent no.2 from the array of the parties, on the ground that respondent no.2, (doctor) had passed away during the pendency of the appeal.  Application for deletion of respondent no.2 was allowed, vide order dated 11.3.2014 passed by this Commission and  name of respondent no.2 was deleted from the array of the parties.

10.     It has been contended by learned counsel for the petitioner, that petitioner’s operation was conducted by the doctor without proper diagnosis or taking proper precaution.  District Forum had rightly reached  at the conclusion that the hospital had conducted the operation in a rash and negligent manner.  Further, it is contended that respondent no.2 reached at the conclusion regarding ruptured appendicitis, without conducting the proper diagnosis or examination like scan or X-ray. Had the proper examination being conducted, the correct position of  Appendicitis could have been marked and the same could have been removed.  Thus, State Commission had committed grave error in setting aside the order passed by the District Forum.

11.     On the other hand, it has been contended by learned counsel for respondent no.1 that there was no negligence on its part. Moreover, petitioner’s own witness had also supported the case of the respondents.

12.     The State Commission in its impugned order has observed that there was no negligence on the part of the respondents.  In this regard, relevant findings of the State Commission are reproduced as under ;

“14.        The complainant as PW1 has admitted that she was having diabetes and hypertension and she was obese at the relevant time. The complainant as PW1 or PW2, the expert doctor examined on the side of the complainant have not disputed the correctness of the entries in R1 medical records. The facts that the complainant was having ruptured intestine at ileocaecal junction and the peritoneum (abdominal cavity) was filled with pus and by doing the surgery the entire pus was removed from the peritoneum and the ruptured intestine was repaired and the complainant was treated by administering antibiotics to control the infection are not disputed. The aforesaid facts would make it clear that the second opposite party adopted proper procedure by doing an emergency surgery on 08-01-2000. Thus, the materials available on record would show that there was no sort of medical negligence or deficiency of service on the part of second opposite party Dr. P.V. George (Surgeon) and the first opposite party hospital.

15.         A close study of the testimony of PW2 Dr. Sebastian would make it clear that there was no negligence or deficiency of service on the part of second opposite party Dr. P.V. Gorge, Surgeon who conducted the first surgery on the complainant. It is to be noted that PW2 Dr. K.T. Sebastian had the opportunity to conduct a second surgery on the complainant at General Hospital, Pathanamthitta. It is further to be noted that the complainant was referred from the first opposite party hospital for further treatment at General Hospital, Pathanamthitta. The complainant was referred to General Hospital, Pathanamthitta at the request of the complainant. The complainant was operated by PW2 on 30-10-2000. Ext.P7 is the discharge card issued from General Hospital, Pathanamthitta with respect to the treatment of the complainant at that hospital. It would show that the complainant was admitted in General Hospital, Pathanamthitta on 28.09.2000 and discharged on 30.10.2000. It would further show that she was treated at that hospital for incisional hernia on right side and ovarian cyst left side. It would also show that during the said surgery PW2 had also removed appendix as the patient had appendicitis on an earlier occasion. It is also recorded in P7 discharge card that the patient (complainant) was opened up on earlier occasion for appendectomy, locating appendix failed. P7 discharge card would also show that PW2 Dr. Sebastian had done appendectomy, ovarian cyst was removed and incisional hernia was repaired. There is nothing indicative of medical negligence or deficiency of service on the part of the second opposite party doctor in doing the first surgery.

16.         PW2 Dr. Sebastian in his examination in chief itself deposed about P5 medical certificate issued by him. It is deposed that by the statement in P5 certificate that during the previous surgery of appendectomy the doctor failed to locate the appendix cannot be treated as failure of surgery. He clarified that the doctor only failed in locating the appendix during the previous surgery. In cross examination PW2 admitted the fact that there may arise occasion of failure to locate the appendix due to infection and adhesions. It is also admitted by PW2 that in such a situation it is better to avoid further exploration for appendix as further attempt to locate appendix may lead to complication. PW2 during his cross examination deposed in categorical terms that there was no negligence on the part of the doctor who conducted the previous surgery on the complainant. Nowhere PW2 has deposed about any negligence on the part of the second opposite party Dr. P.V. George in doing the first surgery. According to PW2, the procedure adopted by the second opposite party Dr. P.V. George can be considered as proper procedure and there was no negligence in adopting such a procedure or method by the second opposite party. Thus, the expert witness examined on the side of the complainant has only supported the case of the opposite parties that the second opposite party doctor had done all the best possible treatment and procedure and there was no negligence or deficiency of service on the part of the opposite parties.

17.         The Forum below unfortunately failed to appreciate the oral testimony of PW2 and the P5 medical certificate and P7 discharge card issued by him in their correct perspective. In effect, the complainant failed to prove the alleged medical negligence or deficiency of service on the part of the opposite parties. The Forum below cannot be justified in finding negligence or deficiency of service on the part of the opposite parties. The materials on record would only show that proper procedure was adopted by the second opposite party in doing the surgery on the complainant on 08-01-2000 and in administering further treatment for the complainant at the first opposite party hospital. So, the impugned order passed by the Forum below awarding compensation and cost to the complainant is liable to be quashed. These points are answered accordingly.

In the result, the appeal is allowed.”

13.     In the context, as to what constitute ‘Medical Negligence’, Hon’ble Supreme Court has laid down the law in “Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1” 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.

2. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. 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. So also, the standard of care, while 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.

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.

4. The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.”

5. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law my not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

6. The word ‘gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ‘grossly.’

7. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

          8. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

14.      In the present case, petitioner’s own witness i.e. PW2, Dr.Sebastian, the expert doctor examined on her behalf has not disputed the correctness of the entries in R1 medical records.

15.   Further, PW2 had categorically made clear in his statement that ;

“there was no negligence on the part of second opposite party, Dr.P.V.George, who conducted previous surgery on the complainant.”

              PW2 had further stated that ;

“the procedure adopted by second opposite party Dr.P.V.George can be considered as proper procedure and there was no negligence in adopting such a procedure or method by the second opposite party.  Thus, the expert witness examined on the side of the complainant has only supported the case of the opposite parties that the second opposite parties doctor had done all the best possible treatment and procedure and there was no negligence or deficiency of service on the part of the opposite parties”.

16.      In view of the above evidence, we have no hesitation in holding that the order passed by the State Commission is based on sound reasonings. No jurisdictional or legal error has been shown to us, to call for interference in the exercise of powers under Section 21 (b) of Act.  Since, the State Commission has given detailed and reasoned order, it does not call for any interference nor it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity.

17.   Thus, there is no merit in the present petition and the same is hereby dismissed.

18.     No order as to cost.