BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH ========== Complaint Case No:1101 of 2009 Date of Institution: 04.08.2009 Date of Decision : 07.07.2011 1] Jug Jeevan Pal s/o Late Sh.Amar Nath, aged about 39 years, 2] Chander Mohan S/o Late Sh.Amar Nath, aged about 38 years, Both residents of House NO.4810/3, Chowk Ghandan, Near Pipli Bazar, Ambala City, Haryana. ….…Complainants V E R S U S 1] Post Graduate Institute of Medical Education and Research (P.G.I.M.E.R., Chandigarh) Sector 12, Chandigarh through its Director. 2] Director, P.G.I.M.E.R., Chandigarh, Sector 12, Chandigarh. ..…Opposite Parties CORAM: SH.LAKSHMAN SHARMA PRESIDENT MRS.MADHU MUTNEJA MEMBER Argued by: Sh.Deepak Aggarwal, Adv. for the complainants with complainant No.1 in person. Sh.Rajesh Garg, Adv. for the OPs. PER MADHU MUTNEJA, MEMBER 1] This case has been filed by Sh.Jug Jeevan Pal and Chander Mohan against P.G.I.M.E.R., Chandigarh and its Director, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) alleging deficiency in service and harassment by the Doctors treating the mother of the complainant. The facts of the case as narrated by the complainants are as under:- The mother of the complainants was suffering from jaundice and was admitted to P.G.I.M.E.R., Chandigarh for treatment on 01.07.2007. The deceased had good health and physique and did all household work before the date of admission. The OPs diagnosed the cause of Jaundice to be blockade and resultantly a 10 cm. Straight biliary stent was placed inside the patient. A biopsy sample was taken during the process of ERCP on 4.7.2007. As per the complainants, adequate informed consents about the adverse effects of ERCP were not taken from the attendants. The complainants have alleged that prospective randomized studies have failed to demonstrate the advantage of this procedure besides its complications and increased costs. The complainants have also expressed doubt about the quality of stent deployed by the doctors on the patient since they were only asked to replace the stent after a stent from the hospital resources was used for the patient. The patient was discharged from the hospital on 6.7.2007 and was advised to follow-up after seven (07) days on Tuesday in GE-OPD i.e. 17th July, 2007 as per schedule. Her general condition was conscious/oriented at the time of discharge. The patient was brought to PGI for a CT Scan abdomen on 07.07.2007. Report of the Scan was provided to the complainants at a later date. The complainants allege that continuation of hospitalization of the patient was most essential on 6.7.2007 till reports of CT Scan report and biopsy were received for final decision of treatment. In fact as per allegation of the complainant, the patient should have been operated immediately, hence decision of the OPs in discharging the patient on 6.7.2007 was a total error of judgment amounting to negligence and deviation from standard medical practice. The condition of the patient deteriorated and the complainants took the patient to the OPs on 17.7.2007 in OPD for check-up. Various tests were prescribed by the doctors, which were done on the same day. Antibiotics were also advised to the patient by the doctors. As per the complainants, the reports of CT Scan and Biopsy were also examined by the doctors. The complainants have alleged that as per the biopsy report, surgery was the best option for the cure of this disease. The report of Biopsy diagnosed adenomatous with dysplastic lining, which was curable, but the doctors instead prescribed Vitamin K, Antibiotics and asked the patient to come to PGI in case of any emergency. Hence, surgery remained planned in papers only. As the condition of the patient did not improve, the complainants again rushed the patient to the emergency of OPs on 28.7.2007. Though the patient was crying with acute abdominal pain, the doctors refused to admit the patient. Later on Ultra sound was advised. The Ultra-sound report showed blockage of stent deployed earlier as well as Hepatitis-C i.e. HCV (+ve). The complainants have alleged that HCV test was conducted twice; by which the patient was once declared HCV (+ve) and once HCV (-ve). On 29.7.2007 the OPs planned to place a drain to remove the infection of the patient. The doctors of Gastroenterology Department had now declared that the patient suffered from:- “1. Acute Cholangitis 2. Severe Sepsis with metabolic acidosis.” The complainants have alleged the following medical negligence by the doctors on this date:- i) No ICU available for the patient suffering from Severe Sepsis. ii) Severe Sepsis protocol checklist was not prepared. iii) Arterial blood gas sampling (ABG Test) was executed. iv) Surgical drainage of infected fluid collections was denied for PTBD. On 30.7.2007 another stent was deployed besides the old blocked stent, which according to the complainant was another major negligence on the part of the OPs, even though there was no sign of Hypoxemia. The complainants have alleged that removal of blocked stent was most essential. The quality of stent deployed was again doubtful. The complainants have further alleged that from 31.7.2007 to 1.8.2008 the patient was treated with high doses of antibiotics without explaining the side effects of the treatment due to which problem of respiration developed in the patient. Dr.Suraj did not take any notice of the advise of Asstt. Prof. Usha Dutta in this regard and continued to treat the patient with high doses. Also ABG test conducted by Dr.Viney was not performed adequately as most of the samples were declared wrong by the laboratory. Hence, medical negligence again. The condition of the patient worsened and she was put on excessive Oxygen. As per the complainant, the doctors were unable to decide the quantity of Oxygen i.e. whether 100% pure or 31% pure. New stent deployed on 30.7.2007 showed partial blockade in the ultra-sound report, done on 03.08.2007. On 05.08.2007 the condition of the patient was by now very serious. Acute respiratory failure developed at around 03 A.M. Severe Hypoxemia was observed, which could be the result of increased systematic oxygen consumption. Bed-side X-ray was executed after eight hours and ultra sound of Gall Bladder was done. As the patient’s condition was very critical, the doctor advised for placement of central line in the patient. The complainants have alleged that the consent for central line was given to Dr.Suraj but the Central Line was placed by Dr.Viney. As soon as the Central line was placed, there was acute blood loss and large swelling on the neck of the patient due to which three bags of plasma had to be injected. The complainants have alleged that every time the treating doctors were requested to take advise from the Senior Doctors to control the situation, no one paid any heed to the requests of the complainants. When Senior doctors reached the ward, they realized that the Central line has been wrongly executed and there was no chance of survival of the patient. Even manual ventilation would prove to be of no help. The treating team said that the process of ventilation would also not be helpful to save the life of the patient. The complainants thus took the patient home with the consent of the treating doctors. The patient ultimately died on the way before she reached home. The complainants did not sign the LAMA Certificate. Thus the whole complaint refers to the alleged continuous misbehaviour and harassment by the team of treating doctors, besides the wrong medical treatment. All through the complaint, “Breach of Standard of Care” has been alleged a number of times. Also allegations of misbehaviour, pushing, kicking have been made. The complainants have annexed literature on the treatment given to the patient by the medical team of OPs. 2] At the time of admission of the complaint and before notices were sent to the OPs, it was felt that in view of the decision of Hon’ble Supreme Court of India in case “Martin F.D.’Souza Vs. Mohd Ishfaq, Civil Appeal No.3541 of 2002, dated 17.2.2009, the case be sent to the Director/Principal, Govt. Medical College and Hospital, Sector 32, Chandigarh with a request to constitute a committee of Doctors having expertise in the field to establish as to whether any case of medical negligence is made out. The report of the doctors of Govt. Medical College and Hospital, Sector 32, Chandigarh was duly received and thereafter notice was issued to the complainant as well as OPs for further proceedings. 3] The OPs have filed joint reply. The OPs in their reply have made the preliminary submission that the Committee of doctors constituted by the Govt. Medical College and Hospital, Chandigarh, has already given its opinion. There is no element of medical negligence shown in the treatment given to the deceased, hence in terms of the judgment of Hon’ble Apex Court in case of Martin F.D’Souza, the OPs should not have been summoned. Further, the OPs have contended that the deceased was an elderly lady with tumor causing biliary obstruction and had suffered two episodes of severe cholangitis. An effective initial management with endoscopic stent placement and antibiotics therapy was done on the patient. When the patient was discharged from Gastroenterology on 6.7.2007, she was referred to surgery department. Both written and verbal instructions were given to her relatives to come on 7.7.2007 but the patient was not brought to the hospital on this date. The condition of the patient worsened due to this lapse, which could have been avoided had the relatives of the patient followed the advise of the doctors. Further, standard medical care was provided to the patient with a thorough professional approach within the parameters of existing expertise and infrastructure. The relatives of the deceased did not comply with the instructions, obstructed care and did not consent to life saving measures such as intubation. The attendants took the patient from the hospital against medical advice. The relatives of the deceased later repeatedly made several queries under RTI Act and all answers were provided even though many of the enquiries were wholly frivolous and harassing. On merits, the OPs have admitted the admission and treatment of the patient, but they also said that though the patient was referred to Surgical Services, the family of the patient did not bring her there on the appointed date. In view of the serious medical condition of the patient, the OPs had even obtained an out of turn C.T. appointment for 7th July, 2007. The Biopsy Report showed adenoma and dysplasia as the cause of obstruction. It is very important to note that the relatives of the patient did not bring the patient to the ward the same evening with fresh investigation reports. The patient was not brought to G.E. Unit-I OPD/Surgery OPD from 18.7.2007 to 28.7.2007. The OPs have further said that all claims of harassment by the treating doctors are wholly and absolutely incorrect. The patient was admitted on priority in the G.E.Ward. it is the attendants of the patient, who did not comply with the instructions issued by the doctors from time to time. OPs have denied the treatment for HCV, alleged to have been given to the patient as per the complainant. When the doctors of Radiology Diagnosis Department assessed the patient, it was found that biliary duct was mildly dilated and amenability of PTBD was assed as the patient was unfit for ERCP at that time. As the patient had partially stabilized by the next morning, an endoscopic stent was successfully placed in her, despite her poor medical condition. The patient was sick when she was taken up for procedure and a stent was placed besides the other stent, in order to facilitate additional drainage. The ‘procedure time’ had to be as short as possible as the patient was not in a condition to tolerate prolonged procedure, hence the first stent was not removed. Also it would have continued to provide a path for placing a new stent. Removal would have resulted in loss of any access to the biliary tree in a patient where precut sphincteromy had been done. The OPs have denied any problem of respiration due to high doses of antibiotics to the patient. Also Blood samples were taken from the patient for carrying out tests as per standard practice, which were needed to monitor and tailor the therapy of the patient. The OPs in reply to the complainants allegation that the attending doctors continued their hypothesis that the patient is suffering from Blood Cancer, Kidney problem, Pneumonia/many other diseases such as Cardia disease etc. have stated that the patient had suffered sepsis with multiorgan dysfunction in which kidney problem, respiratory and cardiac problem can arise. The OPs have denied the rude behaviour of the doctors with the attendants of the patient. It is submitted that the discussion on bedside rounds are often of a highly technical nature. They are meant only for a co-professional and not for the relatives of the patients who happen to be bystanders and who are not trained to interpret medical discussion. In a teaching Institute, a lot of collateral discussion occurs about clinical problem which may not necessarily have a direct bearing on the index patient. Phrases can easily be plucked out of a bedside discussion and misquoted and misinterpreted. The OPs have stated that the relatives of the patient have jumped to the conclusion that removal of infected stent would be a panacea for the myriad ills of the patient. The question of continuation of high doses of antibiotics, hence causing the death of the patient, are irrelevant as all doses administered to the patient were standard doses as per published guidelines. The administration of “pure” oxygen resulting in death of the patient is apparently untenable since the arterial blood gas reports showed PO2 ranging from 26-98 mm range, none of which indicate hyperoxia. The OPs have also submitted that the central line is placed in a critically ill patient to assess fluid requirement by monitoring of central venous pressure to administer medicines etc. Dr.Vinay was competent and empowered to do the central line process. Central line was placed in the neck to access the major vein in the throat. The presence of a Senior Doctor was not required as it was a routine process. Consent of the family of the patient was taken to conduct this procedure and it is not required to be specific as to who would do the procedure. The relevant consent has been placed at Ann.R-4. All the Senior Doctors evaluated the patient at varing times depending on the need of the situation and all difficult endoscopic procedures were done by the senior doctors themselves. The whole treating team worked in constant communication with each other. Also during the second time the patient was very sick, serious and unfit for definitive surgery. The OPs have alleged that significant time was lost after discharge of the patient on 6.7.2007 from Emergency. The patient should have been brought to the G.S. for evaluation on 07.07.2007. Even later the relatives of the patient did not cooperate or comply with the instructions. Ultimately they also refused life saving medications/advise and left the hospital against medical advice denying care for the patient. The doctors had planned endotracheal intubation but the relatives of the patient did not give consent for the same. The signature of a family member to this effect is available at Ann.R-5. The fact that the complainants took the patient away from the hospital even without giving LAMA consent actually highlights their uncooperative behaviour. The patient was taken away in a critically ill state when she required complete hospital care, even though this fact was explained to the family of the patient. Such critical patients are never discharged from the hospital. The Lama summary and Admission Sheet have been placed at annexures with the reply. The family of the patient took her against medical advise on 5.8.2007. In the para-wise reply, the OPs have submitted that the patient was never treated on any experimental basis. She was given adequate standard medical treatment. The family did not bring the patient to the Surgical Ward as advised on 7.7.2010, she was only admitted on 28.7.2007, hence valuable time was lost in her treatment. Biliary drainage was provided as soon as her condition stabilized. The family of the patient delayed effective therapy after her first discharge by not bringing her back the next day, hence there was no negligence from the doctors in management of the patient. The actual course of events stated clearly bring out the situation. The patient was unfit to undergo ERCP procedure on 29.7.2007, hence she was advised to under go PTBD (Percutaneous transhepatic biliary drainage) under Radiology Department. The patient was continued at interim management due to which her condition improved and she was able to tolerate a short endoscopic procedure when a fresh stent was placed successfully under constant monitoring and oxygen supplementation as she was still not completely medically stable. The patient was not sent to the Radiology Department on 30.7.2007 for a repeat evaluation as she was already planned for a endoscopic stent placement. The departments records do not have any entry for the patient in the intervention room as she had not undergone any intervention. The Radiology Department makes entries in their records only when a procedure is actually undertaken, not merely planned. The OPs have said that there is no attempt at fabrication/falsification/tampering with any records. There is no negligence on the part of the Radio-Diagnosis Department. Also no invasive intervention was possible on 29.7.2007 as the patient was unfit for both endoscopic procedure as well as radiological procedure. The delay caused by the family in getting definitive treatment by surgeons, for three weeks is an important factor in worsening her illness resulting in another episode of severe cholangitis which ultimately proved fatal though standard medical therapy was administered. All medicines and procedures provided to the patient were of standard nature and no negligence of any doctor has been admitted. ICU option for the patient was also considered from 02.08.2007, but a bed was not available (Ann.R-8). The central line was placed by Dr.Vinay, who is medically qualified and authorized to do the procedure. No doctor ever pushed or kicked any of the patient’s relatives. In fact the family of the patient denied purchase of injection Meropenum and refused consent for placement of endotracheal tube, both were extremely necessary to support life. The OPs have said that they have not tampered with any records. The doctors did not consent to the discharge of such a seriously ill patient and the family took the patient without signing the LAMA sheet. Relying on all the above submissions as well as documents placed on record, the OPs have prayed for dismissal of the complaint with heavy cost being frivolous and vexatious. 4] Both parties led evidence in support of their contentions. 5] The complainants have also filed Rebuttal as well as Synopsis in support of their case thereby reiterating in detail the pleas taken in the complaint, and controverting the averments made by the OPs. 6] During the course of proceedings, an application was moved by the ld.Counsel for the complainant for permission to cross-examine Dr.Atul Sachdev, Dr.S.S.Lehl, Dr.Ravinder Kaur, Dr.K.K.Talwar, Dr.Usha Datta, Dr.Rakesh Kochhar i.e. total Six Medical Practitioners. Vide order dated 06.10.2010, the said application of the complainant was allowed only qua Dr.Rakesh Kochhar. As per the order, Dr.Atul Sachdev, Prof. & Head, Dr.S.S.Lehl, Professor and Dr.Ravinder Kaur, Assoc. Prof., were Members of the Committee appointed by GMCH, Sector 32, Chandigarh, to give their report as per the order. The report was not by way of affidavit, hence it was opined by this forum that they could not be called for Cross-examination. Dr.K.K.Talwar, who was the Director of PGI, did not examine the patient nor had he sworn any affidavit, hence he too could not be summoned. Even Dr.Usha Dutta had only signed the Reply and had not sworn any affidavit. She also could not be called for cross-examination. Only Dr.Rakesh Kochhar had sworn his affidavit, which according to the complainants was ambiguous, hence permission was given to cross-examine him by way of Questionnaire. Application qua all other medical practitioners was dismissed. The questionnaire for Dr.Rakesh Kochhar was hence filed by the complainant. Reply to the questionnaire filed by the complainant, was duly furnished by Dr.Rakesh Kochhar. 7] As per the questionnaire and answers to the questionnaire, it is clear that the patient was hospitalized with features of jaundice and elevated leucocytosis on 01.07.2007. All document and final record were duly prepared. Against the query for accessories not being demanded from the attendants of the patient, the doctor has answered that for emergency procedures, accessories available in the department are used because one does not know what accessories may be required once endoscopy is actually done. No formal record of accessories was being maintained by the PGI. The treating unit can not predict the future of the patient. The surgery is done by the Surgeons only after taking into account clinical conditions, radiology reports and histopathology reports. No planning can be done without availability of all these. 8] After initial treatment and placement of stent, the patient was discharged on 6.7.2007 and was asked to report on 7.7.2007. Though C.T. scan was performed on 7.7.2007, the patient was not brought to Surgical OPD. She was brought to GE-OPD only on 17.07.2007. All relevant tests and procedures were advised and performed on this date. The patient had sepsis, was in cholangitis and in a disoriented state. Endoscopy is known to further lower oxygenation which can make matter worse. Routine allergy tests are conducted prior to administration of certain drugs. ICU demand was raised on 02.08.2007 and records can be verified. 9] We have heard the ld.Counsel for the complainants, complainant No.1 in person and ld.Counsel for the OPs and have also perused the record. 10] The matter in hand relates to the unfortunate loss of an ailing mother, followed by an emotional petition/complaint by the family, almost bordering on a persecution complex wherein everything done by the treating doctors is allegedly faulty and amounting to negligence, harassment and misbehaviour. This outlines the soul and substance of the present complaint, hence we find the comment ‘a breach of standard of care’ after every para of the complaint. 11] The pleadings, though catchy, and trying to seek attention effectively, actually present no material for thought. 12] On the other hand, the OP Institution has presented the complete treatment chart highlighting the steps taken in treating the patient and justifying in detail the course of treatment provided. 13] The task before us as highlighted by numerous judgments of the Hon’ble Supreme Court of India is to sift the chaff from the grain and actualize the situation when the ship was sinking. The attempt being to decide whether a correct decision was taken momentarily to save the ship as per the presentation of facts at the time the ship was sinking, and not in retrospect as to what could have been done. 14] The facts of the case, have already been examined and written in detail above, and need no repetition. Suffice to say the patient has died and the relatives, are now seeking justice against the alleged negligence, harassment and ‘breach of standard of care’ by the doctors. 15] The P.G.I.M.E.R., Chandigarh, which was conceived as a referral hospital has become a general hospital and is a first choice for all patients. Doctors cannot refuse any patient. The resultant pressure creates a blog/waiting in all manifestations of the treatment be it a simple illness, X-ray, operation, bed facility, fracture and even upon the doctors and support attendant staff. It is a common sight to see more than one patient on a bed, patients on trolleys and even on the floors with intravenous drips running. Doctor running from patient to patient trying to make the best of a situation not of their making. The reason for the hospital being the first choice is directly correlated to the expertise and dedication of the doctors and staff. In this back ground when the doctor is accosted with a case of this nature where despite best efforts a patient does not survive and an allegation filled petition/complaint follows; the result is only an emotional trauma and additional pressure on an already stressed out doctor. Would such a petition/complaint not have a bearing on the already over worked doctors ? Would it not affect his/her further working ? Would it not lower the morale and ardor of a Doctor ? should such litigation be encouraged ? 16] Combating the emotional with the reasonable, we as a Third Party find ourselves in line with the reason and tend to agree with the P.G.I. (OP). a) The patient was suffering from jaundice and elevated leucocytosis - immediate stenting was done. b) Even skirting the waiting line, the C.T.Scan was organized out of turn for the patient. ICU was also requested, though not provided due to non-availability. This cannot be attributed as negligence by the doctors. c) The complainant has questioned each course of treatment given to the patient starting from stenting, medication, oxygen, doses of medication, line of treatment, treatment by Junior Resident/Doctor instead of Senior Resident/Doctor extra extra – one is left wondering, was nothing correct done ? 17] The complainants have, in fact, found fault with each and every steps of treatment and everything done by the doctors of PGI to save the life of the patient by trying to cure her disease. They do not seem to have even a single word of praise or appreciation for the treatment and time given by the doctors to the ailing patient. 19] Even the cross-examination of the doctor is so lengthy & excessive, it seems to border on a drive to find a needle in a hay stack, when actually there is none. A bare perusal to the answers given by the doctor to the questionnaire put forth by the complainants shows and proves that adequate treatment was given to the patient. The questionnaire has failed to establish any aspect of negligence by the OPs. 20] To add further, a Report/Expert Opinion from another Hospital i.e. Government Medical College & Hospital, Sector 32, Chandigarh was sought by this Forum at the initial stage of this complaint even before issuance of notices to the OPs. The report has scanned the entire treatment given by the doctors of PGI and has found no fault with the treatment given. Each aspect of treatment has been clearly discussed and commented upon. The said report is reproduced hereunder:- “With reference to the Endst. No.GMCH-HA1-EA2(74)-09/14299-303 dated 26 August 2009, following is the report of the constituted committee. This report has been made after scrutinizing the record provided and after looking at the standard accepted treatment protocols. This relates to the patient Darshana Devi and the committee has attempted to answer the queries raised by the attendants of the patient. Patient Darshana Devi, presented to PGIMER on 1.7.07 with obstructive jaundice, and she underwent ERCP, stenting of the CBD and biopsy from the papilla on 02.07.07. She was discharged in stable condition after a stay of five days. Subsequently COMPLAINT Scan was done on 7.7.2007 and the report was received from the Radiology Department in the normal course of time. The biopsy report of the sample taken during the ERCP was also received in due time. There was no inordinate delay in this process and the procedure and follow-up is as per acceptable practices related to health care. On 17th July the patient presented with vomiting and intermittent fever, which was evaluated by the doctors and a decision to prescribe antibiotics and discharge the patient with advise to follow up in case of any problem was taken. The patient stayed at home and did not report to the hospital (possibly was stable) till 28th July, 2007 (Saturday). She was then admitted again to the PGIMER with possibly severe infection (cholangitis) possibly related to blockage of the stent. The patient was planned for drainage of the biliary tract and was started on higher/more potent antibiotics, which was correct and as per standard practice. She was planned for PTBD in view of her sick condition, which was as per the record provided by the patient was fixed for the next day (Sunday). However, the treating team subsequently opted to place another stent alongside the previous stent. This was done successfully on 30.07.07 (Monday). The idea of stent placement or a drainage procedure is to have free flow of bile from the obstructed biliary passages which was successfully achieved both times. The success of this drainage is proved by the decrease in S bilirubin levels as per the records. Often the old stent is left in its original place to promote peristental flow. It is therefore not always necessary to remove the previous stent. The question of lowering the dose of antibiotics or giving the higher dose of antibiotics was a part of the discussion between the treating team. The committee is of the opinion that higher dose of antibiotics were required for the serious nature of the patient condition. This decision of the treating doctor was appropriate. The role of higher flow of oxygen to be given to the patient was also possibly correct at that time. The discussion on different percentages of oxygen between the doctors was academic and did not apparently influence the overall outcome. Another complaint of the patient’s relative is regarding frequent sampling but in a sick patient one has to sample many times in a day. Frequent investigations are often necessary in seriously ill patients and are a part of the management. The attendants have alleged that incorrect sampling was done but a review of the patient record does not support this contention. ……, as the patient’s condition deteriorated there was a need to put in central line which can be difficult in a sick patient. The insertion of central venous line was apparently as per standard protocols in a sick patient and was correct in this patient. The patient possibly had a local complication related to insertion of this line but even this complication was adequately managed with local compression and infusion of plasma. The treating team of doctors also made necessary requests for seeking ventilatory support and informing the patients relatives of the risk/benefits of this modality which was also appropriate.” Hence, as per the report, all treatment meted out to the patient by the Ops was appropriate and as per required standards. No procedure was assessed as unreasonable. Again non-availability of bed in the ICU can only be attributed to the overflow of critically ill patients, and not negligence by the OPs. 22] It would be necessary here to scan the precedents to determine the position in law on the issue. The jurisdiction of the Consumer Forum has amply been explained in the judgment of Indian Medical Association Vs. V.P.Shantha & Ors., AIR 1996 Supreme Court 550. 23] The crux of the explanation thus borders on the course of action adopted and elicits that if the course taken was known and professed by the practitioners during that era, then the choice of treatment cannot be doubted or found faulty, specially when the patient did not recover. 24] In Bolam Vs. Friern Hospital Management Committee (1957 (I) WLR 582) it has been held that :- “But where you get a situation which involves the use of some special skill or competence, then the test as to whether thee 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.” The complainants have not been able to satisfy any of the characteristics mentioned in the Test above. 25] The Hon’ble Supreme Court of India in case “C.P.Sreekumar (Dr.), MS (Ortho.) Vs. S.Ramaujam, (2009) 7 Supreme Court Cases 130, has held that the onus of proving medical negligence lies with the complainant. It is also held in Para No.37 of the said judgment that “…..As already observed in Jacob Mathew case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. 26] In Hon’ble Apex court in the case of Jacob Mathew Vs. State of Punjab and Another, (2005) 6 Supreme Court Cases 1, while taking into consideration the case of Bolam Vs. Friern Hospital Management Committee (supra), has held as under:- “….., it must be shown that accused doctor 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” “…., it is necessary that death should have been the direct result of a rash and negligent act of accused, and that act must be the proximate and efficient cause without the intervention of another’s negligence – It must be the causa causans – It is not enough that it may have been the causa sine qua non – Ciminal Law – Neligence – Casuation. “The subject of negligence in the context of the medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor’s contribution is either relatively or completely blameless.” “The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.” “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. We need to add here that the complainants have not mentioned any better course of action that could have been taken by the doctors. “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. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence, as recognized, are three: “duty”, “breach” and “resulting damage”, that is to say: (1) the existence of a duty to take care, which is owned by the defendant to the complainant.; (2) the failure to attain that standard of 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 three ingredients are made out, the defendant should be held liable in negligence. 27] In case of Martin F.D’Souza Vs. Mohd. Ishfaq, (2009) 3 Supreme Court Cases 1, it has been held:- “Observing that law is a watchdog, not a bloodhound, held, doctors doing duty with reasonable care would not incur liability even if their treatment failed.” Taking up the references of the case of Bolam test as approved in Jacob Mathew Case, it has further been held that:- “Lastly, simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of Respondent ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient. Even the best professionals, what to say of the average professional, sometimes have failures….” “However, the test to determine negligence is not the highest expert skill but the standard of ordinary skilled doctor exercising and professing to have that special skill.” 29] Relying on the decisions of Hon’ble Apex Court, as stated above, and also the facts and circumstances of this case, we deem it appropriate not to be swayed by the emotional aspect of the complaint. The complete details of the treatment given to the patient have been brought out date-wise by both the parties. The gap in delay of treatment to the patient from 6.7.2007 to 17.7.2007 was probably the cause of damage to the patient’s health. The entry on the case file clearly shows that the Patient was called to the Surgery OPD on 07.07.2007 whereas relatives of the patient brought her only on 17.7.2007, after obtaining complete reports for C.T.Scan and Biopsy from the concerned departments. Even on this date, the patient has been taken home and brought back only on 28.7.2007. It is unfortunate that the patient has not survived, but should we hold the Doctors liable after they have provided all adequate care and treatment possible, as and when the patient was brought before them. The allegations made by the complainants about ‘a breach of standard of care’ after every paragraph of the complaint against the OPs seems to be too farfetched and over imaginative. Hence, in our opinion, the complainants have not been able to make out any case of medical negligence against the treating Doctors of the PGI. The Doctors have provided adequately possible medical care to the patient. The family members of the patient took her away at a crucial stage, even without signing LAMA Certificate. At that time her condition was serious and close monitoring and medical aid was of utmost importance. So, it can safely be said that it were the attendants/family members of the patient, who rather contributed in worsening the condition of the patient who ultimately did not survive. 30] In view of the above observations, we deem it appropriate to dismiss the complaint. The complaint is accordingly dismissed. No order as to costs. Certified copies of this order be sent to the parties free of charges. The file be consigned after compliance. Announced 07th July, 2011 (LAKSHMAN SHARMA) PRESIDENT (MADHU MUTNEJA) MEMBER
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | | 
