DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 233/2015
Date of Filing: Date of Admission: Date of Disposal:
10.04.2015 22.04.2015 12.09.2017
Complainant:- Sri. Amit Datta, S/o Sri. Amal Datta, A/207, Bijoypur,
Road No-4, P.O.-Sodepur, P.S.-Khardah,
District-24 Parganas (N), Kolkata-700 110.
Vs.
Opposite Parties:- 1) M/s. Swasti Eye Super Speciality Nursing Home,
AA-2/2, Rajarhat Road, Taltala, Baguiati,
P.S.-Baguiati, Kolkata-700 059.
2) Dr. P. Mondal,
M/s. Swasti Eye Super Speciality Nursing Home,
AA-2/2, Rajarhat Road, Taltala, Baguiati,
P.S.-Baguiati, Kolkata-700 059.
3) Dr. Santanu Ghosh,
M/s. Swasti Eye Super Speciality Nursing Home,
AA-2/2, Rajarhat Road, Taltala, Baguiati,
P.S.-Baguiati, Kolkata-700 059.
P R E S E N T :- Sri. Bankim Chandra Chattopadhyay…………President.
:- Sri. Siddharta Ganguli ….………………………Member.
:- Smt. Silpi Majumder………………………………Member.
J U D G E M E N T
This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging medical negligence against the OPs.
The brief fact of the case of the Complainant is that the wife of the Complainant, since deceased was treated at the OP-1 for the period from 2.12 a.m. on 03.03.2015 to 11.00 a.m. on 04.03.2015, wherein the OP-2 being the doctor had rendered medical treatment to the wife of the Complainant. On 02.03.2015 at about 11.00 p.m. the wife of the Complainant sustained head injury due to fall from the pillion of the motor cycle which was at the relevant period driving by the Complainant. The said accident occurred near B.N. Bose Hospital at Barrackpore and she was immediately taken to the said hospital and as per the advice of the doctors she was admitted at the B.N. Bose Hospital. Considering the seriousness of the patient the attending doctor referred the case to the R.G. Kar Medical College & Hospital. Immediate the Complainant left the Hospital at about 11.45 p.m. and the patient was brought at the R.G. Kar Medical College & Hospital by ambulance at about 12.30 a.m. on 03.03.2015 and therein the patient got admission, C.T. Scan done and considering the seriousness and gravity of the patient’s condition the attending doctor referred the patient to the NRS Medical College & Hospital for further better treatment. It is curious to mention that the attending doctors always preferred to refer the patient from their own custody and thereby relinquished their responsibility to continue treatment. While they were on the way to NRS Medical Hospital as per the advice of the driver of the ambulance the Complainant admitted the patient at the OP-1 at about 2.15 a.m. on 03.03 2015. Dr. P. Mondal one of the doctor of the OP-1 attended the patient, the patient party were waiting outside of the OP-1 very anxiously from 2-15 a.m. on 03.03.2015 till 8.00 a.m. as they were dark about the condition of the patient and nature of the treatment. At about 8.30 a.m. on 03.03.2015 the OP-3 being the neuro surgeon called the Complainant when the said doctor suggested and advised for immediate operation and simultaneously he had stated that for such high risk operation required infrastructure is not available at the OP-1, but however he will make arrangement at the OP-1 and the authority of the OP-1 told that they will arrange the same for operation and post-operative treatment towards the patient at their cost. The Complainant being a non-medical person had no idea about such infrastructure and he was solely depended upon the OPs, but the OPs were told that he is ready to shift the patient elsewhere as per the advice of the doctors and the nursing home for further and better management. But the OPs have assured the Complainant that they will make arrangements for operation and subsequent treatment in a better way and there is no necessity for shifting the patient at any hospital/nursing home. At that point of time the condition of the patient was not critical and she talked with the patient party. During the period from 8.45 a.m. to 01.30 p.m. on 03.03.2015 the Complainant was not aware about the condition of neither the patient nor any information was given to him by the OPs about the state of health of the patient though the patient party were eager to know the same. The Complainant apprehended that during that period the patient remained untreated and unattended by the OPs. At about 1.30 p.m. on 03.03.2015 when the Complainant along with others chased the OPs to know about the condition of the patient then only they expressed their inabilities to continue treatment of the patient due to grave and critical condition of her. It was also stated by them that it is impossible to provide treatment to the patient further as her health condition was deteriorating. Upon hearing the same the Complainant observed that actually the condition of his wife became bad to worse due to non-providing of proper treatment by the OPs to her. It is pertinent to mention that if the OPs tried to provide proper treatment to the patient then the condition of the patient would not have been so deteriorated within a short span. Though request was made by the Complainant to the OPs to give proper treatment and what should be done at that condition, but the OPs did not take any step for shifting of the patient at elsewhere or advised the Complainant in this respect to shift her at any hospital for better management. Being perplexed the Complainant was not in a position to think over the matter as to what should be done at that moment and even the OPs did not consult with the Complainant regarding the condition of the patient and treatment procedure. At about 10.00 p.m. on 03.03.2015 the Complainant was told that a city scan will be done in the next morning and on the next morning upon perusal of the said report the OP-3 said that why no operation was done by this time and upon hearing such words from the OP-3 the Complainant became surprised as the patient was also under his care and it was also the duty of the OP-3 to take proper decision regarding treatment towards the patient, without blaming to others. About 9.00 a.m. on 04.03.2015 when the patient party discussed with the OP-2about the latest condition of the patient he remained silent over the matter and even the OP-3 also told nothing in respect of further treatment of the patient. Thereafter the Complainant took decision for shifting his patient at about 11.00 p.m. on 04.03.2015 and accordingly the patient was shifted on risk bond to Neuro Science Nursing Home wherein the doctors and nurses did their best, but unfortunately the patient expired on 07.03.2015 at about 4.00 a.m. The Complainant was told by the doctors of the Neuro Sciences that blood was accumulated in her brain and its surrounding area, which was necessary to be operated much earlier, but the OPs failed to do the same. Though the doctors, nurses of the Neuro Sciences provided best treatment and efforts to the patient, but the life of the patient could not be saved due to the negligence of the OPs as they have failed to provide proper treatment to the patient timely. Therefore it can easily be said that due to deficiency in service and negligence the Complainant is suffering from mental pain, agony and harassment. The OPs have neither provided any proper treatment towards the patient nor referred her at any hospital for better management. The OPs did not take proper care and caution at the time of giving treatment to her and for this reason the patient expired at the age of only 35 years. According to the Complainant the OPs did not adopt the treatment procedure as per settled medical practice and medical science and due to this reason he also lost his life partner. Having no other alternative the Complainant has approached before this Ld. Forum praying for direction upon the OPs to pay either jointly or severally a sum of Rs.10,00,000/- as compensation for careless treatment, deficiency in service and premature death of his wife, to pay further compensation of Rs.10,00,000/- due to mental pain, agony and harassment to him.
The petition of complaint have been contested by the OP-1 & 3 by filing conjoint written version contending that the averments as stated by the Complainant in the complaint petition are out and out false statements and the onus lies upon the Complainant to prove the said allegation by adducing cogent evidence. In the instant complaint to prove the negligence of the OPs no expert opinion from the expert doctor is called for by the Complainant by making an application, so no expert opinion is forthcoming. But the Hon’ble Supreme Court in the judgment reported in 2009 (1) CPJ 32 (SC) have specifically laid down that before admitting a complaint the Complainant ought to have been referred for opinion of medical expert of specialized field prior to further proceeding in the matter, so this complaint is bad in the eye of law as no such step was taken by the Complainant. The OPs have mentioned that the OP-1 being a reputed nursing home is engaged in rendering all types of medical and clinical examination services to the patients at large and other services related with medical service very honestly, sincerely and carefully and try to maintain a goodwill and prestige in the field of medical service. These OPs are always trying to extend medical service to the general people as per their satisfaction. The issues which are involved in this case is so complicated in nature, the same cannot be decided without any evidence of medical experts of specialized field. As the Consumer Forum is created for summary trial such voluminous record cannot be adjudicated upon through such trial. The Complainant did not disclose the date when the cause of action arose. This complaint is filed by the Complainant with a view to malign the reputation of the OPs, hence it is liable to be dismissed with cost. The allegations as made by the Complainant being very complicated and highly technical in nature, prayer have been made by these OPs not to exercise jurisdiction in this matter and giving direction the Complainant to approach before the Civil Court for his relief. The OPs have stated in the written version that the wife of the Complainant, since deceased was admitted at the OP-1 on 03.03.2015 with traumatic head/brain injury due to accident and before her admission at the OP-1 she was treat at B.N. Bose Hospital, R.G. Medical College & Hospital and Nilratan Sarkar Medical College & Hospital, but due to their inadequate infrastructure problem the patient got admission at the OP-1 as per the will of the Complainant, nor allured by these OPs. Immediately after her admission the OP-2 rushed at the OP-1 for attending the patient with urgent and due care and caution to save her life. After perusing the reports/plates he tried to detect the nature of injury and without wasting any time referred her to an experienced and expert neurologist/ neuro surgeon so that necessary and required treatment can be started as quickly as possible. Accordingly the OP-3 attended the patient and explained the patient party regarding either for shifting to any neuro based better set up hospital/nursing home on urgent basis or to give consent for urgent surgical intervention at the OP-1. But the patient party did neither make any response nor give the consent for surgery; rather they always asked for gurantee of performance and delayed to inform them his decision. Meanwhile repeat C.T. Scan was done on 04.03.2015 at the OP-1 for further review of the depth and gravity of the injury sustained and after perusing the report of the C.T. Scan the OP-2 and 3 requested the Complainant for urgent decision either to shift or giving consent as the physical condition of the patient was gradually deteriorating, but so such response came. At about 11.00 a.m. the patient party decided to shift the patient from the OP-1 and accordingly the OP-1 had to discharge the patient on risk bond. The OPs have stated that they are not liable for the sufferings of the patient because there was no negligence on their part in providing treatment in a highly diligent manner and as per treatment procedure. The OPs have treated the patient applying their skills in a proper manner. They have adopted all sorts of pre- operative care and cautions as per medical science, but with ulterior motive to harass these OPs this complaint is initiated by the Complainant. So, the OPs have no liability to compensate the Complainant as sought for in the complaint. This complaint is filed by the Complainant with a view to grab some money through an illegal manner. According to the OPs the complaint being frivolous, baseless and vexatious is liable to be set aside with exemplary cost.
The petition of complaint has been contested by the OP-3 by filing written version stating that the patient was admitted by her husband at the OP-1 and the decision for admitting the patient therein was the absolute decision of the Complainant and the patient party. None of the OPs are attached in this respect because the OPs did not allure the Complainant for admitting his patient at the OP-1. The patient was admitted under the OP-2 who attended her immediately. Thereafter, the patient was referred to the OP-3 and at about 6.30 a.m. on 03.03.2015 the OP-3 attended the patient in connection with the reference. Upon examination it was found that the patient was conscious. She got hemorrhage due to accident and for this reason her husband was called for by this OP. The Complainant along with the patient party met this OP and discussed about the procedure of the treatment of the patient in detail and at that point of time they were intimated by this OP-3 that the patient had frontally contusion, hemorrhage. The OP-3 tried to aware them about the said injury but it was told by him that there was possibility of increasing of blood and swelling in her brain and if the said condition will arise then the health of the patient may be deteriorated rapidly. Considering the condition of the patient the OP-3 told the Complainant that surgical intervention is required to save the life of the patient i.e. to do de-comprehensive Craniotomy i.e. removal of a part of the skull bone over the injured brain area and removal of hemorrhage as much as possible. On hearing the same the Complainant asked the OP-3 as to whether the operation was possible and whether there was any infrastructure in performing such highly risk operation at the OP-.1 or not. The Complainant was intimated by the OP-3 that the OP-1 being not a Tertiary Neuro Center, the Complainant had option to shift the patient to any higher neuro centre having ICCU facility and 24 hours in House Neuro Surgery and they were also told that if they are willing to operate the patient at the OP-1, they should give high risk consent. After giving the said consent the OP-3 will take steps for arranging the said operation and for such preparation at least 4 to 5 hours needed. The Complainant intimated this OP that after discussion with his relatives the final decision will be intimated to the OP-3. Through out of the day the OP-3 did not receive any information either from the Complainant nor the patient party and in the evening of 03.03.2015 when this OP visited other patient at the OP-1 this OP was informed that the Complainant and the patient party are still discussing about the matter of operation, hence no consent was given by the Complainant. On the following day this OP got a telephonic call from the OP-1 to visit the patient and accordingly he went at the OP-1 at about 8.30 a.m. and it was found by him that deterioration started neurologically and the patient’s glasglow coma scale had deteriorated from 15 to 3 and her pupils had dilated which means her brain stem function lost, repeated C.T. scan in the morning showed increase swelling in her brain, which was very much alarming. Thereafter, this OP called the Complainant and the patient parties and narrated the serious condition of the patient and wanted to know as to why they did not give consent for operation. Then the Complainant started to accuse this OP along with other OPs taking shelter lies that they did not hesitate to convey their opinion for operation to the OPs. Such attitude of the patient party revealed their mis-deeds and without any reason unwarranted and unwanted allegations have been leveled against this OP who from time to time intimated the patient party what she required to be done for the patient considering her state of health being a doctor having professional and moral duties towards the patient for discharging the same. The Complainant did not agree to give high risk consent for the proposed operation rather they did not take any positive step for providing treatment to the patient at the OP-1, nor they took any step to shift her from the OP-1 to other hospital for better management. Therefore, the Complainant has no authority or right to make false allegations against this O.P. The onus lies upon the shoulder of the complainant to prove medical negligence on behalf of OP-3 adducing cogent documentary evidence. Though this complaint is filed but no application has been made by the Complainant to call for the expert opinion from a expert doctor for coming to a conclusion as to whether there was any medical negligence on behalf of the OPs or not and the treatment given by the OPs was at all correct and as per standard medical practice or not. According to this OP medical treatment was provided by him was as per the standard medical practice and norms and no deviation has been made by him from the medical science. He took due care and caution regarding treatment towards the patient. For this reason as the Complainant has failed to prove the negligence of this OP by producing any document. Hence, the prayer is made by the OP-3 for dismissal of the complaint with cost.
The Complainant and the OPs have adduced their respective evidences or affidavit along with some documents in support of their respective contentions. The OPs have filed questionnaire challenging the evidence of the Complainant and the Complainant has replied the same, but not on affidavit.
We have carefully perused the record, documents and papers filed by the parties and heard argument advanced by the Ld. Counsel for the contesting parties at length.
POINTS TO BE DECIDED:
- Whether the Complainant is a consumer or not?
- Whether this complaint is maintainable or not?
- Whether there was any medical negligence on behalf of the OPs in providing medical treatment to the wife of the Complainant, since deceased, or not?
- Whether the Complainant is entitled to get any amount towards compensation as sought for or not?
DECISION WITH REASONS:
1. At the very outset we are to adjudicate as to whether the Complainant can be termed as consumer or not. The Ld. Counsel for the Complainant has argued that the Complainant is a consumer because being the husband of the patient, since deceased this complaint is filed and the Complainant certainly falls within the ambit of the definition of ‘consumer’ as enumerated in the Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986. On the contrary argument have been advanced by the Ld. Counsel for the OPs that the Complainant cannot be termed as consumer as no money receipt is filed by him to prove that the medical treatment cost was incurred by him. The Ops have prayed for dismissal of the complaint on that score. Upon hearing argument advanced by the contesting parties in our view that admittedly no document is forthcoming from the end of the Complainant that he paid the treatment cost of his wife to the OPs. But it is also true that in the prescriptions issued by the OP-1 and written by the OPs nowhere it is written or mentioned that medical treatment was provided to the wife of the Complainant gratuitously. In this respect we may mention to the landmark judgment passed by Three Judges Bench of the Hon’ble Supreme Court in the case of Indian Medical Association Vs. V.P. Santha & Others, reported in 1995-SCR SUPP5-110, 1995-CTJ-3-969. The Hon’ble Supreme Court has concluded by holding as under:-
“56. On the basis of the above discussion, we arrive at the following conclusions:-
- XXXXXXXXXXXXX
- Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression ‘service’ as defined in Section 2 (1) (o) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be ‘service’ and the recipient a ‘consumer’ under the Act.”
Though the OPs have claimed that the Complainant is not a consumer, but it is not proved by the OPs that they do not receive any amount towards treatment cost and others from any person irrespective of rich and poor and they used to provide medical service totally free of cost to every patient.
In view of the aforementioned decision and more particularly in view of the conclusions taken in sub-paragraph-10 of the said paragraph 56 of the said decision, we are unable to uphold the contention made on behalf of the OPs and therefore the contention must fail on the plea as taken in the written version and during argument. Therefore the Complainant can easily be termed as ‘Consumer’ as per the Consumer Protection Act, 1986. So the point no-1 is decided in favour of the Complainant.
2. Now we are to see as to whether this complaint is maintainable or not. In our view the complaint is maintainable from the point of its territorial jurisdiction as the addresses of the OPs wherein the medical service were provided by the OPs to the wife of the Complainants lie within the territorial jurisdiction of this Ld. Forum. But from the point of pecuniary jurisdiction in our view this complaint cannot be maintainable as in the prayer portion of this complaint the Complainant has prayed for compensation to the tune of Rs.20,00,000/- and if we add Rs.1/- towards the treatment cost of the wife of the Complainant which he had to incur, then the cost of the service and compensation will cross the pecuniary jurisdiction of this ld. Forum. Within the four corners of the complaint nowhere it is stated by the Complainant that no amount was paid by him to the OPs towards the treatment cost of his wife. According to the Section 11 (1) of the Consumer Protection Act, 1986 the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed does not exceed Rs.20,00,000/-. But in the instant complaint as the total amount has exceeded the pecuniary jurisdiction of this Ld. Forum, hence this complaint is barred by pecuniary jurisdiction. The point no-2 is thus decided against the Complainant.
In respect of maintainability we are to mention some important points in view of the dictum of the Hon’ble Supreme Court as given in the judgment of Dr. J.J. Merchant & Others vs. Srinath Chaturvedi, reported in III (2002) CPJ 8 (SC), wherein it has been observed by Their Lordships in the paragraph no-37, which runs as follows-
37. “(a)……………………………
(b)…………………………….
(c) It would see that complaint as well as defence version should be accompanied by documents and affidavits upon which parties intend to rely.
(d)………………. Reply on affidavit.”
But in this complaint the abovementioned law has not been abided by the Complainant as the petition of complaint is not supported by affidavit and the reply filed by the Complainant in respect of the questionnaire of the OPs is also not supported by affidavit, which is mandatory as per the above settled principle of law. On the contrary the written versions filed by the OPs and the replies to the questionnaire of the Complainant are supported by affidavit. Henceforth the Complainant is directed to follow the abovementioned Law of this Land.
3. Though it is mentioned above that the complaint is barred by pecuniary jurisdiction of this Ld. Forum, inspite of this we are to adjudicate as to whether there is any medical negligence as well as deficiency in service on the parts of the OPs or not. It is seen by us that admittedly on 02.03.2015 at about 11.00 p.m. the wife of the Complainant sustained head injury due to fall from the pillion of the motor cycle, immediately she was brought at the B.N. Bose Hospital at Barrackpore, as per the advice of the doctors she was admitted at the said Hospital, considering seriousness of the patient the attending doctor referred her to the R.G. Kar Medical College & Hospital, the patient was brought at the R.G. Kar Medical College & Hospital at about 12.30 a.m. on 03.03.2015 wherein she was admitted, C.T. Scan done, considering the seriousness and grave condition of the patient the attending doctor referred her to the NRS Medical College & Hospital for better treatment, on the way to NRS Medical Hospital the Complainant admitted the patient at the OP-1 at about 2.15 a.m. on 03.03 2015, Dr. P. Mondal-OP-2 attended the patient, at about 8.30 a.m. on 03.03.2015 the OP-3 being the neuro surgeon was called for by the OP-2, the OP-2 doctor suggested/advised for immediate operation, simultaneously the complainant was requested/directed to give consent for the said operation, the Complainant was told by the OP-3 that for such high risk operation required infrastructure is not available at the OP-1, but he will make arrangement at the OP-1 subject to provide consent for such operation, but ultimately the Complainant did not give his consent for such surgical intervention, the condition of the wife of the Complainant was deteriorating gradually, subsequently the Complainant shifted the patient at the Neuro Science Nursing Home, but inspite of best efforts of the doctors therein the patient expired on 07.03.2015. The allegation of the Complainant is that due to medical negligence of the OPs he lost his wife at her very early age, hence by filing this complaint the Complainant has sought for some reliefs against the OPs. The rebuttal case of the OPs is that they have provided best treatment to the patient as per the standard medical practice and science, but the Complainant did not extend his co-operation with the OPs as he did not give his consent for surgical intervention which was necessary for removal of accumulation of blood from the brain of the patient, occurred due to accident. The OPs have further stated that the complainant die neither take any step to shift the patient from the OP-1 to any other hospital for better management nor provide the informed consent for operation, but at a very belated stage the complainant took decision for shifting of the patient from the OP-1 to the Neuro Science Nursing Home when her physical condition was deteriorating gradually. According to the OPs there is no medical negligence on their part and they took due care and caution to the patient. The OP shave prayed for dismissal of the complaint.
We have noticed that in the written version the OP-1 and 2 have mentioned that the Hon’ble Supreme Court in the judgment reported in 2009 (1) CPJ 32 (SC) have specifically laid down that before admitting a complaint the Complainant ought to have been referred for opinion of medical expert of specialized field prior to further proceeding in the matter, so this complaint is bad in the eye of law as no such step was taken by the Complainant. In this respect we are to say that in the later judgment passed by the Hon’ble Supreme Court in the case of V. Kishan Rao vs. Nikhil Super Speciality Hospital & Another, reported in (2010) SCCL.com 288, wherein Their Lordships have been pleased to set aside the abovementioned view stating the same as per inquirium. In the said judgment Their Lordships have held that where there is palpable negligence, expert opinion is not mandatory. Admittedly in the case in hand no expert opinion is forthcoming from an expert doctor, rather no such application has been made by the Complainant sought for an expert opinion to prove as to whether there is any medical negligence on behalf of the OPs or not as in this complaint no palpable negligence is found by us. During hearing the Ld. Counsel for the Complainant put much emphasis on the point of ‘resulting damage’ due to lack of care and caution of the OPs towards the patient. It is mentioned by the Complainant that due to medical negligence resulting damage i.e. death had occurred. In this respect we may mention to the landmark judgment i.e. Jacob Mathew vs. State of Punjab & Another (2005) 6 SCC 1, a three Judges Bench of the Hon’ble Supreme Court discussed the law of negligence under Tort Law, in extenso. It has been observed that negligence becomes actionable on account of injury resulting from the act of omission amounting to negligence attributable to the person sued. It was held in the paragraph no-11 that essential components of negligence, as recognized, are three- ‘duty’, ‘breach’ and ‘resulting damage’, that is to say:-
“ (1) the existence of a duty to take care, which is owed by the defendant to the complainant;
(2) the failure to attain that standard care, prescribed by the law, thereby committing a breach of such duty; and
(3) damage, which is both casually connected with such breach and recognized by the law, has been suffered by the Complainant.
If the claimant satisfies the court on the evidence that these ingredients are made out, the defendant should be held liable in negligence.”
In the instant complaint the Complainant cannot successfully satisfied us on evidence that the abovementioned ingredients are present because during the period of her stay at the OP-1 the treatment related papers reveal that immediately after her admission at about 2.15 a.m. on 03.03.2015 the OP-2 attended the patient and advised for some tests, prescribed some medicines and considering the patient’s condition and perusing the test report referred her to the OP-3 being the neuro surgeon, the doctors visited the patient on several occasions and monitored her closely, the OP-3 suggested for operation for removal of accumulation of blood from her brain, informed consent sought for, the Complainant took much time for giving the same, proposal was also given to the Complainant for shifting the patient from the OP-1 to elsewhere, no immediate step was taken by the Complainant, further C.T. Scan done, the report revealed deterioration of the condition of the patient, after lapse of much time the Complainant decided to shift the patient at another hospital/nursing home on risk bond and accordingly the patient was shifted on risk bond. The bed head tickets reveal that from time to time the treating doctors attended the patient, tried to maintain different charts, changed the medicines and injections as per medical practice and overall the OPs tried their best to save the life of the patient adopting accepted method of treatment with due care and caution, but due to take much time for taking firm decision by the Complainant aggravated the condition of the patient.
In the paragraph no-18 of the Jacob’s case (Supra) it has been held that ‘………….. a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence…………. Judged by this standard, a professional may be held liable for negligence on one of 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 not possess………. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.’
Observing that the test for determining medical negligence as laid down in Bolam case (Supra) holds good in its applicability in India. The Hon’ble Court inter-alia, came to the following conclusion:-
- 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.
- 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.
- 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.
In the case of V.P. Santha (Supra) (1995 6 SCC 651) Their Lordships have approved a passage from Jackson and Powell on Professional Negligence and held that ‘the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and they should exercise reasonable care in the discharge of their duties. In general as professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing service.’ In Achutrao’s case (AIR 1996 SC 2377) the Hon’ble Supreme Court held that ‘…………. 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 the patient with due care, skill and diligence and if the patient still not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.’
The Ld. Counsel for the OP-1 and 2 has placed reliance on two judgments passed by the Hon’ble NCDRC, reported in 2017 (2) CPR 706 (NC), where it has been held that no cure is not a medical negligence and the other reported in 2017 (1) CPR 251 (NC), wherein it is observed that medical negligence must be proved by expert opinion. Upon perusal of the said two judgments in our opinion the said rulings can be implemented in the case in hand. Therefore the point no-3 goes against the Complainant.
- As the Complainant has miserably failed to prove any medical negligence as well as deficiency in service on behalf of the OPs by adducing cogent documentary evidence, hence we are constrained to hold that the medical service provided by the OPs suffers from medical negligence and deficiency in service from any corner and manner. So the Complainant is not entitled to get any relief as sought for. The Complainant has failed to prove the point no-4 in his favour.
Going by the foregoing discussion hence it is ordered that the complaint is dismissed on contest. However considering the facts and the circumstances there is no order as to cost. The complaint being no-233/2015 is disposed of accordingly.
Let plain copy of this order be supplied to the parties free of cost as per the provision of the CPR, 2005.
Member Member President
Dictated and corrected by me:
