Punjab

Ludhiana

CC/20/183

Gurcharan Singh - Complainant(s)

Versus

Satguru Partap Singh Hospital - Opp.Party(s)

Varinder Singh

01 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:183 dated 16.09.2020.                                                         Date of decision: 01.08.2023.

 

Gurcharan Singh aged 66 years son of Sh. Lal Singh, resident of Railway Station Road, Satta Chowk, Malerkotla, District Sangrur.                                                                                                                              ..…Complainant

                                                Versus

1. Satguru Partap Singh Hospital, Sherpur Chowk, G.T. Road, Ludhiana through its Director/Managing Director.
2.  Dr. Gurpreet Singh, Pulmonary Medicine & Critical Care, MBBS, M.D. DNB, PMC, 30192, Senior Consultant & Coordinator, Satguru Partap Singh Hospital, Sherpur Chowk, G.T. Road, Ludhiana.
3. National Insurance Company Ltd., office Division-II, Bansal Complex, Near Dholewal Chowk, Ludhiana                                                
4. SJS Healthcare Limited, Regd. Office CW-53, Sanjay Gandhi Transport Nagar, Delhi.                                                                                                                                                            …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. V.S. Mand, Advocate.

For OP1 and OP2          :         Sh. R.K. Bhandari, Advocate.

For OP3                         :         Sh. T.J.S. Jaggi, Advocate.

For OP4                         :         Exparte.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, facts of the complaint are that as Smt. Sangeeta Rani, wife of the complainant was not feeling well, so the complainant took her to Abhishek Hospital, Railway Station Road, Near Civil Hospital, Malerkotla on 29.07.2020 where doctor prescribed some medicine for five days but she could not recover properly. Due to critical situation on account of spread of COVID-19 and seeing the condition of his wife who was suffering from illness and vomiting, the complainant along with his son Kuldeep Singh took his wife to Satguru Partap Singh Hospitals, Sherpur Chowk, G.T. Road, Ludhiana for treatment on 31.07.2020 but the hospital authorities denied to give admission and demanded money from the complainant upon which the complainant gave Rs.2 lac in cash for admission of his wife and for providing ventilation bed. However, the opposite parties did not issue any receipt of the said amount despite repeated requests of the complainant.

                   The complainant further stated that after admission of his wife, she was given treatment by opposite party No.2. On 01.08.2020, the complainant was told that his wife is Corona positive and an injection was to be given to the patient, which was very costly. They asked the complainant to deposit Rs.40,000/- which the complainant deposited vide receipt No.IPDP9710 dated 01.08.2020 but nothing was explained about the injection. On 03.08.2020, the complainant was directed to deposit Rs.60,000/- which the complainant deposited vide receipt No.IPDP9856 dated 03.08.2020. The complainant and his son many times inquired about the status of health of his wife Sangeeta Rani from the opposite parties but the opposite parties disclosed that she is a Corona patient. Even complainant and his son were not allowed to meet Sangeeta Rani nor were allowed to talk, calling or video calling with Sangeeta Rani through mobile due to which complainant and his son become worried about health of Sangeeta Rani and mentally tortured and harassed by the opposite parties.

                   The complainant further stated that on 04.08.2020, the complainant along with his son requested the opposite parties about status of health of Sangeeta Rani but they told to wait for some time. After some time when the complainant again requested the opposite parties to tell status of health of Sangeeta Rani, he was informed that she is dead and also directed the complainant to deposit the bill amount if he wants to take dead body of his wife. The complainant became shocked and he deposited bill amount of Rs.1,32,398/- vide bill No.IPDP5783 dated 04.08.2020. Sangeeta Rani was cremated as per guidelines of Covid-19, Punjab Govt. Death Notification Report and Covid-19 Epidemiological Case sheet were given to the complainant. According to the complainant, his son Kuldeep Singh was residing with him and both admitted Sangeeta Rani in SPS, Hospital, Ludhiana and even after her cremation, they gave sample for testing of Covid-19 on 06.08.2020 at SDH, Malerkotla which was found to be negative vide report dated 13.08.2020. However, Sangeeta Rani was declared Covid-19 positive by the opposite parties but reports of complainant and his son were negative which shows that the opposite parties have given wrong report of death of Sangeeta Rani due to which the complainant suffered shock. The complainant demanded complete treatment file of Sageeta Rani from the opposite parties but they only supplied death summary of Sangeeta Rai wrongly mentioning in the column ‘Course in Hospital Including Management’ to the effect that : “during hospitalization Inj. Tocilizumab were given after taking consent from the family. Patient’s critical condition and poor prognosis explained to family on daily basis. In view of refractory hypoxemia, patient was intubated on and put on mechanical ventilation.”               

The complainant further stated that the opposite parties neither informed him about health status of Sangeeta Rani nor they took permission to give Inj. Tocilizumab to her. Even the complainant never consented for clearance slip for surgery/procedure/others dated 01.08.2020 as alleged. Sangeeta Rani was not suffering from any disease like Diabetes, blood pressure, heart problem  or any other chronic disease prior to her admission with SPS Hospital whereas in the death summary the immediate cause of death is wrongly mentioned as “Cardio-respiratory arrest”. This all shows that Sangeeta Rani was not properly diagnosed nor proper treatment was given by SPS Hospital rather they treated Sangeeta Rani in negligent and deficient manner which caused her death. Even due to the cause of death of Sangeeta Rani due to Covid-19, the complainant and his family members have to suffer a lot as the locality people as well as business community of the complainant stopped talking with them and nobody was ready to deal with them which caused immense mental torture, agony besides monetary loss to the complainant and his family members. According to the complainant, the opposite parties have committed unfair trade practice and failed to provide proper treatment to Sangeeta Rani and negligent and deficient services of the opposite parties has caused injury and irreparable loss to the complainant and his family members. In the end, the complainant prayed for allowing the complaint with following reliefs:-

i)       Cash amount of deposited by the complainant with        Rs.4,32,398/-

          the opposite parties with interest @24% PA.

ii)      Business loss suffered by the complainant                       Rs.10,00,000/-

iii)     Mental pain, agony, financial loss, harassment

          suffered by complainant.                                                          Rs.10,00,000/-

iv)      Litigation expenses including counsel fee.                       Rs.22,000/-

                                                         Total                              Rs.24,54,398/-

 

2.                Upon notice, opposite party No.1 and 2 appeared and filed joint written statement and took preliminary objections by assailing the complaint on the ground of maintainability; lack of jurisdiction as only civil court can decide the issue; misrepresentation and distortion of facts; hit by the mandatory provisions of Section 28-A of C.P. Act; lack of cause of action, the complainant is estopped by his own act and conduct from filing the complaint; the complaint is an abuse of process of law; the complaint has been filed with oblique motive to squeeze some money from them etc. Opposite party No.1 and 2 stated that they cannot be held guilty of any negligence, deficiency or the death of Sangeeta Rani. She was managed in Covid ICU and was given best medical treatment in the form of antiviral drugs, anticoagulant, steroids, antibiotics, vitamins, supportive treatment, nutrition, high flow oxygen, non-invasive ventilator support to the extent of intubation & invasive mechanical ventilation as per patients medical condition & requirement. They have done whatever best could be done.

                   On merits, opposite party No.1 and 2 reiterated the crux of averments made in the preliminary objections. However, opposite party No.1 and 2 stated that the patient Sangeeta Rani was critically  sick, her oxygen saturation was only 60% when she was brought to emergency at SPS Hospitals, Ludhiana. She was rightly given admission in Covid-19 ICU as her clinical condition and CT scan chest was suggestive of viral Pneumonia, Covid-19 on 31.07.2020. Sangeeta Rani was being afflicted with debilitating pandemic Covid-19 was kept in isolation as per health norms, instructions & guidelines to avoid personal contact & check spread of Corona. The patient’s attendants used to meet consultants as well as Doctor on duty from time to time & they were allowed to see the patient in Covid-19 micu with PPE as she was Corona positive to their knowledge and admission. The attendants of the patient Sangeeta Rani were kept abreast telephonically on 01.08.2020 about the extensive Covid-19 pneumonia & telephonic consent was taken for injecting Inj. Tocilizumab which was issued by pharmacy after due clearance given by the attendants of the patient. Even the critical condition of the patient Sangeeta Rani was also explained to the attendants telephonically as well as personally by consultant as well as Doctor on duty time to time. Their other relative Ujjagar Singh was also admitted in the hospital on their request who during the course of time became better and was discharged. Opposite party No.1 and 2 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                During the proceedings of the case, opposite party No.1 and 2 filed application under order 1 rule 10 CPC with Section 151 CPC for arraying National Insurance Company Limited as opposite party No.3, which was allowed vide order dated 13.01.2021 and National Insurance Co. Ltd. was ordered to be impleaded as opposite party No.3. Upon notice, opposite party No.3 appeared and filed written statement by taking preliminary objections that the complaint is not maintainable; no cause of action arose to the complainant; lack of jurisdiction etc. Opposite party No.3 stated that as per the terms and conditions of the insurance policy obtained by S.J.S. Health Care Limited, opposite party No.3 was to indemnify them if any claim is fastened upon them for professional negligence. After paying the said claim to the Commission/complainant, then S.J.S. Health Care Limited will have to lodge claim with opposite party No.3 and they opposite party No.3 will scrutinize the claim as per policy terms and conditions. The opening clause of the terms and conditions of the insurance policy reads as under:-

 1. Operative Clause:

Whereas the insured named in the schedule hereto and carrying on business/profession described in the said schedule has applied to National Insurance Company Limited (herein after called the company) for the indemnity hereinafter contained and has made a written proposal and declaration which shall be the basis of this contract and is deemed to be incorporated herein and has paid the premium as consideration for or on account of such Indemnity.

NOW THIS POLICY WITNESSETH that subject to the terms, exclusions and conditions contained herein or endorsed hereon, the Company will indemnify the insured against their legal liability to pay compensation including defence costs, fees and expenses anywhere in India and accordance of Indian law.

2. Indemnity

The indemnity applies only to a claim arising out of losses and/or damages during the period of Insurance first made in writing against the insured during the Policy Period and Insured is indemnified in accordance with operative clause for any breach of Professional duty by reason of any negligent act, error or omission, whenever and wherever committed or alleged to have been committed during the period of insurance by-

i. The insured as stated in the schedule.

ii. The predecessor in business of the said firm in respect of whom insurance coverage is expressly provided in the schedule.

iii. Any person at any time employed by the insured or by such predecessor in business in the conduct by or on behalf of the said firm or such predecessors of any business conducted in their Professional capacity:

Opposite party No.3 further stated that the complainant has failed to explain as to how opposite parties were negligent in performing their duty. There is no specific, scientific and justified allegation regarding alleged negligence or deficiency in providing services to the complainant by the opposite parties. Moreover, no medical negligence can be attributed upon the opposite parties without the opinion of duly constituted medical board. The complainant has failed to bring on record any evidence to show that death of his wife Sangeeta Rani has been caused on account of any negligence or lack of skill on the part of the opposite parties.

                   On merits, opposite party No.3 reiterated the crux of averments made in the preliminary objections. However, opposite party No.3 and 2 stated that the complainant has failed to mention the symptoms of the deceased when she was taken to Abhishek Hospital, Malerkotla on 29.07.2020 and has also failed to mention what were the medicines prescribed by the doctor at Abhishek Hospital. Opposite party No.3 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                Further during proceedings of the complaint, opposite party No.1 and 2 filed application for directing complainant to array SJS Healthcare Limited as OP4 which was allowed vide order dated 30.07.2021 and SJS Healthcare Limited was ordered to be impleaded as opposite party No.4. Notice was sent to opposite party No.4 but none turned up for opposite party No.4 despite service of notice and as such, opposite party No.4 was proceeded against exparte vide order dated 18.10.2021.

5.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint as well as affidavit Ex. CB of Sh. Kuldip Singh son of the complainant, affidavit Ex. CC of Sh. Sarabjit Singh son of Ram Singh of Malerkotla. The complainant also tendered documents Ex. C1 is the copy of  deposit/advance receipt dated 01.08.2020, Ex. C2 is the copy of deposit/advance receipt dated 03.08.2020, Ex. C3 is the copy of inpatient bill (summary) dated 04.08.2020, Ex. C4 is the copy of COVID-19 Epidemiological Case Sheet, Ex. C5 is the copy of death notification report dated 04.08.2020, Ex. C6 and Ex. C7 are the copies of lab reports of SDH Malerkotla, Ex. C8 is the copy of death summary dated 04.08.2020, Ex. C9 is the copy of clearance slip for surgery/procedure/others, Ex. C10 is the copy of Aadhar card of Sangeeta Rani, Ex. C11 is the copy of Aadhar card of the complainant, Ex. C12 is the copy of Aadhar card of Kuldeep Singh, Ex. C13 is the copy of Aadhar card of Sarabjit Singh and closed the evidence.

6.                On the other hand, the counsel for opposite party No.1 and 2 tendered affidavit Ex. RW1 of Jatinder Arora, Chief Operating Officer M/s. Satguru Partap Singh Apollo Hospital, Sherpur Chowk, Ludhiana along with documents Ex. R1/1 is the copy inpatient bill (summary) dated 04.08.2020, Ex. R1/2 is the copy of death summary dated 04.08.2020, Ex. R1/3 is the copy of laboratory investigation report dated 01.08.2020, Ex. R1/4 is the copy of molecular biology and closed the evidence.

                   The counsel for opposite party No.3 tendered affidavit Ex. RA of Sh. Lalit Mohan Bansal, Senior Divisional Manager of opposite party No.3 along with documents Ex. R1 is the copy of Policy Schedule-Professional Indemnity-Medical Establishments, Ex. R2 is the copy of Professional indemnity/errors & Omissions of Insurance Policy and closed the evidence.

7.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavits and annexed documents and written reply along with affidavit and documents produced on record by the parties.      

8.                Smt. Sangeeta Rani, wife of the complainant felt indisposed on 29.07.2020 and she was taken to Abhishek Hospital Railway Station Road, Near Civil Hospital, Malerkotla. The attending doctor examined her in OPD and prescribed certain medicines. However, the health condition of Sangeeta Rani did not improve and she was taken to Satguru Partap Singh Hospital, Ludhiana, opposite party No.1 (hereinafter called as Hospital) on 31.07.2020. She remained hospitalized there until 04.08.2020 where she breathed her last in the opposite party hospital. Her cremation was conducted as per COVID-19 protocol. The complainant raised the following grievance in his complaint and has alleged medical negligence on the part of opposite party No.1 and 2:-

i.        That the authorities of opposite party hospital initially denied admission and treatment to the patient Sangeeta Rani and extorted Rs.2 Lac in cash for her admission and for providing ventilation support.

ii.       That the patient Sangeeta Rani was given treatment of COVID-19 which she in fact never suffered.

iii.      That during the treatment, patient Sangeeta Rani was administered Inj. Tocilizumab without consent of the complainant and charged exorbitant rate of Rs.40,000/- from the complainant.

iv.      That the complainant or the attendants were kept in dark about the medical condition and treatment of patient Sangeeta Rani and they were not allowed to meet her.

9.                On the other hand, the opposite party hospital had denied the contentions of the complainant and have emphatically stated that the patient was critically sick when she arrived at the hospital and medical record was suggestive of Viral Pneumonia. She was managed conservatively and kept in isolation and was treated as per standard protocol. The attendants of patient Sangeeta Rani were kept informed about her health conditions and the Inj. Tocilizumab was administered as per consent of the attendants of the patient. It was further denied by the opposite party hospital that no amount was every ever demanded by their officials either at the time of admission or at the time of handing over dead body except billed expenses. As such, there is no negligence or deficiency in service on their part.

10.              Now the point of consideration arises whether opposite party No.1 and 2 were negligent in treating the patient Sangeeta Rani during her hospitalization from 31.07.2020 to 04.08.2020?

11.              Before adverting to the merits of the case, it is imperative to reproduce the operative part of death summary Ex. C8:-

          “DEATH SUMMARY

          Presenting Complaints:

Patient presented with complaints of fever with cough X 7 days and breathlessness X 3 days  

          Provisional Diagnosis:

• Viral Pneumonia – Covid-19 Positive
• Type I Respiratory Failure
• Severe Acute Respiratory Distress Syndrome
• Moderate Left Ventricular Systolic Dysfunction (Ejection fraction 32%)
•  Refractory hypoxemia.

    

Important/Relevant Investigations: Attached

          Course in Hospital  Including Management:

Patient Sangeeta Rani was admitted with above mentioned complaints. Patient was shifted to Covid ICU for close monitoring. Patient was put on NRBM support in view of type I respiratory failure. Patient was evaluated clinically and investigated thoroughly and found to have Ferritin 458.5ng/ml, D-dimer test showed positive. Patient was put on antiviral, favipiravir and antibiotic. CT Chest was done which showed multiple large confluent areas of consolidation and crazy paving involving all lobes of bilateral lungs with patchy aerated spared parenchyma, minimul fluid is also in bilateral pleural cavity. Throat swab for Covid-19 was sent which came out positive. 2D Echo was done which showed poor and limited echo windows, global hypokinesia of LV. Mild/Mild TR with RVSP 25 mmHg+RAP. Moderate LV systolic dysfunction, LVEF 32%. In view of worsening breathlessness, she was put on intermittent non invasive ventilator support. She was managed with Insulin, antiviral, antibiotics, steroids and other supportive care. During hospitalization Inj. Tocilizumab were given after taken consent from family. Patient’s critical condition and poor prognosis explained to family on daily basis. In view of refractory hypoxemia, patient was intubated on and put on mechanical ventilation. On 04.08.2020 patient had cardiac arrest immediately cardiopulmonary resuscitation was done according to advanced cardiac life support protocol but patient could not be revived & was declared dead at 6.30 AM on 04.08.2020.

Final Diagnosis:

• Viral Pneumonia – Covid-19 Positive
• Type I Respiratory Failure
• Severe Acute Respiratory Distress Syndrome
• Moderate Left Ventricular Systolic Dysfunction (Ejection fraction 32%)
•  Refractory hypoxemia.

Immediate Cause of Death:

• Cardio-respiratory arrest.

Perusal of death summary shows that patient Sangeeta Rani was admitted on 31.07.2020 at about 10:18 PM and expired at about 06:30 AM on 04.08.2020 in Covid-ICU wards of opposite party No.1 hospital. She was under treatment of opposite party No.2 namely Dr. Gurpreet Singh. On 31.07.2020, at the time of admission Sangeeta Rani was presented with complaints of fever with cough for 7 days and breathlessness for 3 days. Her initial diagnose was Viral Pneumonia, Covid-19 positive. In the medical science Viral Pneumonia is an infection of the lungs caused by a virus. The most common cause is the flu, but one can also get viral pneumonia from the common cold and other viruses. These nasty germs usually stick to the upper part of the respiratory system. But the trouble starts when they get down into the lungs. Then the air sacs in the lungs get infected and inflamed, and they fill up with fluid. Anything that weakens the body’s defenses (immune system) can raise the chances of getting pneumonia. The persons of the age of about 65 years or more are prone to such infection.

12.              Close scrutiny of death summary along with annexed medical record adduced by the parties suggests that all the diagnostic procedures were adopted by opposite party No.1 and 2 and according to its results, the medicine were administered. Even the Inj. Tocilizumab were also given to the patient Sangeeta Rani just to save her life. The complainant has not produced any opinion of expert or any document which could show that the patient was not suffering from Covid-19 or that were given by opposite party No.1 and 2 was not in consonance with standard protocols for treating Covid-19 patients. The contentions of the complainant that the consent of the attendants and family members was not taken at the time of administering the Inj. Tocilizumab stands falsified as this fact is also mentioned in the death summary. The complainant failed to adduce evidence with regard to the demand of extra money at the time of admission or at the time of handing over of dead body to them.

13.              The counsel for the complainant has referred to the medical prescription slips (Ex. C6 and Ex. C7) issued by doctor for Gurcharan Singh and Kuldip Singh in which they were shown Covid negative as on 13.08.2020 and contended that since the attendants of the patient Sangeeta Rani were found negative so the patient was not suffering from Covid-19. However, this argument of the counsel for the complainant is a figment of imagination only. Even otherwise, the patient died on 04.08.2020 and the prescription slips bear the date 13.08.2020. Further conditions of the complainant that the opposite parties did not provide updates about the medical conditions is also devoid of any force. When the complainant and the attendants are aware of the cost of Inj. Tocilizumab so it cannot be said that they were not informed about updates of the treatment.

14.              The initial onus to prove the deficiency was on the complainant but he failed to discharge the same. In this regard, a reference can be made to case title Bombay Hospital & Medical Research Centre Vs Asha Jaiswal & others I (2022) CPJ 3 (SC) whereby the Hon’ble Supreme Court of India has held in paragraphs 32 and 34 of judgment, which is reproduced as under:-

32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam12, this Court held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. This Court held as under:

“37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the in- violable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] 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 robanda as well as the facta probantia.”

34. Recently, this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others (2021) SCC Online SC 673  held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. Every death of a patient cannot on the face of it be considered to be medical negligence.”

 

 

Legally speaking, Medical negligence is a breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skin resulting an injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient.

15.              A reference can be made to case titled as Jacob Mathew Vs State Of Punjab & Anr. 2005(2) Apex Court Judgments 136 (SC) whereby the Hon’ble Supreme Court of India summed up the law on medical negligence in the following words:-

“48. (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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. 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 are three: 'duty', 'breach' and 'resulting damage'.

(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. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(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.

 

16.              Further, reference can also be made to the case title Dr. (Mrs.) Chandarani Akhouri and others Vs Dr. M.A. Methusethupathi & others in II (2022) CPJ 51 (SC) whereby it has been held by the Hon’ble Supreme Court of India in para No.27 of its judgment which is reproduced as under:-

“27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.”

 

By applying the ratio of above citations, the complainants have failed to prove medical negligence against the opposite parties conclusively.

17.              As a sequel of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

18.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

Announced in Open Commission.

Dated:01.08.2023.

Gobind Ram.

 

 

Gurcharan Singh Vs SPS Hospital                                  CC/20/183

Present:       Sh. V.S. Mand, Advocate for complainant.

                   Sh. R.K. Bhandari, Advocate for OP1 and OP2.

                   Sh. T.J.S. Jaggi, Advocate for OP3.

                   OP4 exparte.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:01.08.2023.

Gobind Ram.