Haryana

StateCommission

A/856/2015

AMNISH KUMAR - Complainant(s)

Versus

PT.BHAGWAT DAYAL UNIVERSITY OF MEDICAL SCIENCE - Opp.Party(s)

VISHAL YADAV

03 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      856 of 2015

Date of Institution:      08.10.2015

Date of Decision :       03.05.2016

 

Amnish Kumar s/o Sh. Dharamvir Singh, Resident of 342/26, Ram Nagar, Rohtak Road, Jind.

                                      Appellant/Complainant

Versus

 

1.      Pt Bhagwat Dayal University of Medical Sciences, through its Registrar.

2.      Post Graduate Institute of Medical Sciences, through Administrator.

3.      Dr. Reena Gupta, Eyes Department, PGIMS, Rohtak.

                                      Respondents/Opposite Parties

 

CORAM:             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Shri Ajay Ghangas, Advocate for appellant.

Shri Ramesh Hooda, Advocate for respondents No.1 and 2.   

Shri N.K. Malhotra, Advocate for respondent No.3. 

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

Amnish Kumar-complainant, is in appeal against the order dated August 24^th, 2015 passed by District Consumer Disputes Redressal Forum, Rohtak (for short ‘the District Forum’) whereby complaint filed by him was dismissed.

2.      The complainant/appellant (hereinafter referred to as ‘the patient’) filed complaint under Section 12 of the Consumer Protection Act, 1986 averring that he was suffering from some problem in his left eye. He visited Pt. Bhagwat Dayal Sharma Post Graduate Institute of Medical Sciences (for short ‘PGIMS’), Rohtak, wherein an injection was given to him in room No.5 by Dr. Reena Gupta-opposite party/respondent No.3. It was alleged that instead of giving injection by Dr. Reena Gupta, she (Dr. Reena Gupta) asked some nurse to give the said injection who was not qualified to give the injection. Due to giving of wrong injection, the eye of the patient was damaged. The respondent No.3 did not refer the patient to All India Institute of Medical Sciences (AIIMS), Delhi but sent the patient to Dr. Atul Kumar of AIIMS, New Delhi after talking on telephone and when the patient was checked up, it was found that the patient had lost the vision of his left eye and there were no chances of recovery. The patient remained under the treatment of AIIMS, New Delhi and was also operated upon but the vision of his left eye could not be recovered. Thus, the appellant/complainant alleged it a case of medical negligence and deficiency in service on the part of the respondents/opposite parties.

3.      The respondents/opposite parties contested complaint. The respondents No.1 and 2 in their joint reply pleaded that the patient was suffering from Spring Catarrh disease in his left eye. He was getting treatment from PGIMS, Rohtak and visited the above said institute on different dates, that is, 12.03.2010 vide Out Patient Department (OPD) card No.7286, 87170; 23.08.2010 vide OPD card No.25939, 0146212 and on 27.04.2011 vide OPD card No.5741, 613548. On 27.04.2011, supratarsal injection kenacort was advised by Dr. Reena Gupta, Senior Resident, Room No.5, PGIMS, Rohtak. Dr. Reena Gupta referred the patient to Room No.7, that is, minor OT for administration of injection in his left eye. The injection was given by Dr. Meenakshi Hooda, Junior Resident in consultation with the treating doctor Senior Resident faculty member. The patient was advised not to move his head during the procedure of injection. However, during administration of injection, the patient suddenly moved his head and the injection might have gone in the other area of the eye. The doctor withdrew the needle and managed accordingly. The patient left the hospital as fully satisfied without any complaint of any kind.

4.      On 29.04.2011, the patient was examined in Retina Clinic by Prof. Dr. Manisha Nada and found some deposits, may be of injection Kenacort in the vitreous and occurrence of retinal detachment. The case was discussed with Senior Prof. & Head Unit-III and after discussion, the patient was advised to seek consultation at higher centre in view of early and prompt treatment for retinal detachment. As the facilities for the treatment of retinal detachment were not available in the institute, so thereafter the patient did not turn up for any further check up with any complaint. Denying the allegations of the appellant/complainant, it was prayed that the complaint merited dismissal.

5.      The respondent/opposite party No.3 in her separate reply stated that she (Dr.Reena Gupta) is highly qualified having degree of M.B.B.S., M.S. (Ophthalmology) and more than six years experience in that field. At that time, the respondent No.3 was working as Assistant Professor since January, 2012. Being a faculty member of the department, the respondent No.3 was always very cautious and careful while examining and prescribing medicines to patients and maintains utmost care being specialized in the field of Ophthalmology. The patient had been visiting the PGIMS, Rohtak since 12.3.2010 for the treatment of his left eye. The respondent No.3 had attended the patient on 13.04.2011 when only the medicines were prescribed and again on 27.04.2011 when supratarsal injection Kenacort was prescribed. On the day of alleged occurrence, the injection was administered by Dr. Meenakshi Hooda (a trained and qualified doctor) in room No.7 in accordance with the medical norms. Denying the allegations of the appellant/complainant, it was prayed that the complaint be dismissed.

6.      After evaluating the pleadings and the evidence of the parties, the District Forum dismissed the complaint.

7.      It is admitted case that the appellant (patient) was suffering from Spring Catarrh, for which he was taking treatment from PGIMS, Rohtak since 12.03.2010. It has also come on the record that supratarsal injection Kenacort was prescribed to the patient by several doctors and on the date of alleged incident, the same injection was also administered to the patient. The allegations of the appellant that the injection was not given by a qualified doctor, is not tenable. The doctors by whom the patient was examined and treated, were qualified experienced doctors and injection was given to the patient in accordance with the medical norms.

8.      To prove the medical negligence, the appellant has to prove that either the doctor was not qualified or that the doctor did not follow the expected norms. None of these ingredients have been fulfilled by the appellants. Stress being laid on the word that during inquiry it was found that while injection was being given by Dr. Meenakshi Hooda, inadvertently the patient moved his head and injection effected the eyeball, this cannot by any stretch of imagination be construed to prove that the doctor was not qualified or that there was some negligence on the part of the doctor.

9.      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 ipsaloquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

10.    In Jacob Mathew (supra), Hon’ble Supreme Court elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury’s Laws of England (4^th Edn., Vol.30, para35), as follows:

“35.   The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care.  Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way; …”

11.    In the case in hand, all the OPD slips show that the Supratarsal Kenacort injection was prescribed by various attending surgeons on different dates and the same was administered in Room No.7 by well qualified doctors.  There is nothing on the record to show that there was any kind of medical negligence and deficiency in service.  The evidence available on the record makes it clear that treatment given to the patient was in accordance with accepted principles of medical science. Based on the overall facts and circumstances of the case, it is crystal clear that the allegations of medical negligence against the respondents do not stand proved. In view of this no reason to interfere with the well-reasoned order passed by the District Forum, is made out. Hence, the appeal fails. It is dismissed. 

 

Announced: 03.05.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

CL