Haryana

StateCommission

A/315/2015

DR. RAJ PRASHAR - Complainant(s)

Versus

RAJDEV YADAV - Opp.Party(s)

ASHWANI TALWAR

18 Feb 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :       315 of 2015

Date of Institution:       03.04.2015

Date of Decision :        18.02.2016

 

Dr. Raj Prashar, Prashar Hospital, Opposite Budhla Sant Mandir, Rishi Nagar, Hisar.

                                      Appellant/Opposite Party No.1

Versus

1.      Rajdev Yadav s/o Sh. Shambu Yadav, Resident of Behind Dera Sachcha Sauda, Gangwa, Tehsil and District Hisar.

                                      Respondent/Complainant

2.      Holy Hospital, 5, Dabra Road, Hisar, through its Managing Director Dr. Ajay Kumar Singh

3.      N.C. Jindal Institute of Medical Care and Research, Model Town, Hisar through its Managing Director.

4.      United India Insurance Company Limited, 18, Sirsa Road, Hisar (Haryana), through its Divisional Manager, Divisional Office, Hisar-Insurer of Holy Hospital, Dabra Road, Hisar.

Respondents/Opposite Parties No.2 to 4

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

                                                                                                         

Present:              Shri Satpal Dhamija, Advocate proxy for Shri Ashwani Talwar, Advocate for appellant.

                             Shri S.K. Verma, Advocate for respondent No.1.

                             Shri Divay Sarup, Advocate for respondent No.2.

                             Shri Amit Singla, Advocate for respondent No.3.

                             Shri Nitin Gupta, Advocate for respondent No.4.

                                               

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

Dr. Raj Prashar-Opposite Party No.1, is in appeal against the order dated January 23^rd, 2015, passed by District Consumer Disputes Redressal Forum, Hisar (for short District Forum), whereby complaint filed by Rajdev Yadav-complainant (respondent No.1 herein) alleging medical negligence and deficiency in service on the part of opposite parties No.1 to 3, was accepted.  Operative part of the order is reproduced as under:-

                   “30.   Resultantly, this complaint is hereby allowed, with a direction to opposite party No.1 to pay a sum of Rs.10,92,000/- to the complainant, alongwith interest @ 9% per annum, from the date of filing the complaint i.e. 09.08.2007 till payment.  Complainant is also hereby awarded litigation expenses of Rs.11,000/- against opposite party No.1.

                   31.    Shobha Devi since deceased has left behind her husband and two minor children.  Out of two minor children, one was of about 12 years and other was newly born.  Therefore, in the circumstances, it is ordered that aforesaid amount shall be divided among said three L.Rs.  Husband shall be entitled for 25%, elder son would be entitled for 35% and newly born baby would be entitled for remaining for 40%.  Share of the minors shall be deposited in their respective fixed deposit receipts in some Nationalized Bank for maximum rate of interest, till they attained maturity.  Specific instruction be given to the Bank issuing FDR, not to release the amount to them till they attain maturity.”

 

2.      The brief facts of the present case        are that Sobha Devi (since deceased)-wife of complainant Rajdev Yadav, was pregnant. She had been visiting Dr.Raj Prashar-Opposite Party No.1 for routine check up since her conception in December, 2005. She was having profuse bleeding per vagina. On 12.09.2006, after examining her, Ante Partum haemorrhage was found and chances of survival of foetus were decreasing. She was admitted in the hospital. On that day, the patient (since deceased) was alone and for that reason the opposite party at her own, arranged blood unit and transfused the same to the patient. Since normal delivery was not possible, so a male child was born by way of caesarean section.  Due to the old history of repeated abortions and excessive loss of blood, the patient (Shobha Devi) could not stand the shock of the operation. She had respiratory problem. At about 6.30 P.M., the patient was referred to N.C. Jindal Hospital, Hisar-Opposite Party No.3 for treatment and intensive care. An ambulance was arranged and two staff members were sent by the opposite party No.1 alongwith oxygen cylinder while shifting the patient to N.C. Jindal Hospital, from where the patient was sent to Holy Hospital, Hisar-Opposite Party No.2. During the period of treatment in N.C. Jindal Hospital and Holy Hospital, Dr.Raj Prashar, used to visit the said hospitals to see the condition of the patient. However, on 21.09.2006 the patient died in N.C. Jindal Hospital.

3.      The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986, alleging that during delivery operation, heavy dose of anesthesia was given to the patient, without taking adequate and due medical precautions as a result of which her condition became critical and ultimately she died in N.C. Jindal Hospital.

4.      The Opposite Parties, contested complaint by filing their respective replies. Opposite Party No.1 stated that the patient was a regular patient since the time of conception i.e. December, 2005. Before that pregnancy, she was having only one living child aged about 12 years old. During those 12 years, she had conceived but every time she had abortion. During this pregnancy, the patient was told that a very high risk was involved in such a pregnancy, including prognosis as she had bad obstetric history of repeated abortions but the patient and her husband (complainant) insisted to continue with the pregnancy. With medical follow up, medicines, investigations and ultrasound examination, the patient was able to reach the ninth month of pregnancy. On 12.09.2006, she was having profuse bleeding per vagina. After necessary tests, a caesarean operation was conducted and she gave birth to a male child. A well qualified and trained anaesthetist was called at the time of operation who gave anaesthesia to the patient. Since, the condition of the patient was very critical, therefore she was referred to N.C. Jindal Hospital, Hisar, for better treatment. Denying the allegations of the complainant, it was prayed that the complaint be dismissed.

5.      The opposite party No.2 in its separate reply denied the allegations of the complainant and prayed for dismissal of the complaint.

6.      The opposite party No.3 did not contest the complaint and was proceeded exparte.

7.      Opposite Party No.4 – United India Insurance Company Limited, in its reply admitted that Holy Hospital-opposite party No.2 was insured with it.

8.      On appraisal of the pleadings and evidence of the parties, the District Forum while allowing complaint directed the opposite party No.1 to pay compensation to the complainant as detailed in para No.1 of this order.

9.      Indisputably, the patient (Sobha Devi) was pregnant; she had been visiting the opposite party No.1/appellant since her conception in December, 2005. On September 13^th, 2006, due to complications she was admitted in the hospital. A caesarean operation was conducted by Dr. Raj Prashar-Opposite Party No.1. She gave birth to a male child by caesarean section.  The details have been mentioned in Indoor Patient Case Sheet (Annexure A-2), reproduced as under:-

“Prashar Nursing Home, Hisar

          Indoor Patient Case Sheet

Name : Shobha Devi w/o Rajdev Yadav

Age: 38 yrs.

Add: VPO Gangwa, The & Distt. Hisar

Final Diagnosis: Amen 9 month C LPS

Indoor No.: 288            DoA: 12-9-2006 at 10:20 am

                                      DoD: 12-9-2006 at 6:30 pm

General Examination: G.C. Fair, Pallor Mild

                                      Pulse – 84 per mt

                                      BP – 110/80 mg

          P/A                       Full term

                                      Contraction + nt

          P/V                       1-F

                                      Sudden bout of bleeding

10:20 am   -        Shifted to OT immediately

High risk explained to attendant about mother & fetal Anesthetist & paediatrician called

Arranged 3 units of blood

                   10:30 am  -                   Pt. taken for LSCS

Operation Notes – With midline incision LSCS done

Alive Ï baby extracted out at 10:50 am on 12-9-2006, Baby handed over to paediatrician patient had severe bleeding, placenta found to be in lower segment adherant to the muscles which could not be removed, Pt had continous bleeding. Surgeon called for hysterectomy

Risk explained to attendants caesarian hysterectomy done

No bleeding P/V Complete haemastasis achieved

Abdomen closed

There was no bleeding P/V after hysterectomy

12:30 pm             No bleeding p/v

                             Pt is under anaesthetist supervision

3:00 pm               Pt was moving all the four limbs & struggling for the endo tracheal tube.

                             Anaesthetist removed E.T. tube

                             O2 given by ventimask

                             P/R 104/mt

                             BP: 110/70 mg

                             SPO2 – 98%

                             Urine output 500 ml

                             IV line continuous

                             Blood given

3:30 pm               Pt comfortable

                             P/R- 100/mt

                             BP: 110/80 mg

                             SPO2-99%

                             Urine output 980 ml

4:00 pm               Pt comfortable

                             P/R- 100/mt

                             BP -100/80 mg

                             SPO2-98%

                             Urine output – 98%

4:30 pm               Pt. comfortable

                             P/R- 100/mt

                             BP -120/80 mg

                             SPO2-99%

                             Urine output – 830 ml

5:00 pm               P/R- 120/mt

                             BP -120/80 mg

                             SPO2-99%

                             Urine output – 850 ml

5:30 pm               P/R- 132/mt

                             BP -110/70 mmg

                             SPO2-99%

                             Urine output – 850 ml

6:00 pm               P/R- 140/mt

                             BP -110/70 mmg

                             SPO2-99%

                             Urine output – 850 ml

Patient referred to Jindal Hospital after discussing the case with anaestist for intensive care & further management along with two compounders Kartar Singh & Manohar along with O2 cylinder.

                                                                             Sd/-

                                                                   Dr.Raj Parashar”

10.    Learned counsel for the respondent No.1/complainant argued that Dr. Raj Prashar-opposite party No.1, was not surgeon, therefore he was not competent to treat the patient.

11.    For the purpose of conducting delivery, there is no requirement of doctor having undergone specialization course of masters in surgery. A MBBS doctor is equally qualified to conduct delivery. There is no evidence worth the name that how and in what manner the treating doctor/opposite party No.1 was negligent in providing treatment to the patient (deceased).

12.    Another argument raised was that the patient died on account of excessive dose of anaesthesia.

13.    There is no evidence on the record to show that excessive dose of anaesthesia was given to the patient before surgery. Mere version of the complainant without any cogent and convincing evidence cannot be believed. Except his own affidavit, the complainant has not led any other evidence. No expert evidence has been produced on the record. Anaesthesia was given on 12.09.2006, the patient died on 21.09.2006. Thus, the patient survived for 9 days after giving anaesthesia. Had it been a case of overdose of anaesthesia, she could not have survived for 9 days.

14.    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.”

15.    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; …”

16.    In Kusum Sharma & Others versus Batra Hospital & Medical Research Centre & Others, 2010(2) R.C.R. (Civil) 161, Hon’ble Supreme Court while deciding whether the medical professional is guilty of medical negligence held that following well known principles must be kept in view:-

I.        Negligence is the breach of a duty exercised 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.

II.       Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III.      The medical professional is expected to bring 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.

IV.     A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V.      In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent     merely because his conclusion differs from   that of other professional doctor.

VI.     The medical professional is often called upon    to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII.    Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII.   It would not be conducive to the efficiency of     the medical profession if no Doctor could administer medicine without a halter round his neck.

IX.     It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X.      The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

XI.     The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

 

17.    In the cases cited supra, it has been held that merely because a doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. The doctor no doubt has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution.

18.    In MARTIN F. D’SOUZA versus MOHD. ISHFAQ, I(2009) CPJ 32 (SC), Hon’ble Supreme Court observed as under:-

“From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.”  

“When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission.”

 

19.    Hon’ble National Commission in S.N. SINGH (DR.) versus DEVENDRA SINGH & ANR, III(2011) CPJ 390 (NC), relied upon the judgment rendered by the Hon’ble Supreme Court as under:-

“17.   In C.P. Sreekumar (Dr.) MS (Ortho) v. S. Ramanujam, II(2009) CPJ 48 (SC)=(2009)7 SCC 130, the Supreme Court held that bald statement of the complainant cannot be accepted to reach conclusion that the Doctor lacked expertise. It is observed that too much suspicion about the negligence of the attending Doctors and frequent interference by Courts could be a dangerous proposition as it would prevent Doctors from taking decision which could result in complications and in such a situation the patient will be the ultimate sufferer.”

 

20.    Hon’ble National Commission in Mohd. Abrar versus Dr. Ashok Desai and others, 2011 CTJ 613 (CP) (NCDRC) has observed as under:-

“The medical practitioners cannot be treated as magicians or demi-Gods. They are fallible human beings. The liability to pay compensation may arise only when the complainant proves that the causation was result of negligence committed by the medical practitioner and there was clear material available to foresee the injury.”

 

21.    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 or can 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.

22.    In the case in hand, the District Forum has failed to appreciate the evidence available on the record in its true perspective. There is nothing on the record to show that the treating doctor was not possessed of the requisite skill which she professed to have possessed, or, she did not exercise with reasonable competence. If a patient did not get relief, the same cannot be made the basis or the yardstick for judging the performance of the doctor to proceed against on indictment of negligence. The treatment record of the patient produced on the record nowhere suggest that there was any negligence on the part of the treating doctor. It is established on the record that the patient was on full term of pregnancy and was found to be having ante-partum haemorrhage; she was having profuse bleeding per vagina and it was a case of high risk pregnancy to both the patient and the child in the womb.

23.    In view of the above discussion, this Commission is of the opinion that the allegations levelled by the complainant against the treating doctor and the hospital are not sufficient to hold that there was deficiency in service or any kind of negligence on the part of the treating doctor while treating the patient.

24.    Hence, the appeal is accepted, the impugned order is set aside and the complaint is dismissed.

25.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

Announced: 18.02.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL