Ramesh Bawri, Member – Even as Complaints relating to medical negligence go, this, to our minds, is a singularly rare case.

 

2. Mercifully, the salient facts of the case are basically not in dispute. The relevant and material facts, as borne out by the depositions of the Complainant/Respondent as well as that of her husband and her brother, together with the documents produced by them as evidence before the District Forum, Shillong, are that on 6.6.95 the Complainant-mother took her 18-day old twin daughters to the Appellant-Doctor, who held the degrees of D.C.H. (Dublin), D.C.H.R.P. (Ireland) and D.T.M. & H.(Liverpool), at his private clinic at Shillong for treatment, as the twins were seriously ill. The Complainant was accompanied by her husband i.e. father of the infants and also her own brother. The Appellant-doctor examined the first baby and told the parents that they had brought the baby who was already dead. When the shocked Complainant-mother requested the doctor to re-examine the baby he said it was useless to examine a dead child and that nothing could be done. He further wrote in the Discharge Certificate “Brought dead.6.6.95, 11A.M.” As regards the second baby he prescribed some medicines and advice the parents to rush the baby to Hospital for treatment.

 

3. Accordingly the Complainant rushed to a Hospital to get the second twin admitted. While the infants’ father suggested that the first twin be taken to their village for burial, the Complainant’s brother, believing in the Doctor’s declaration of death, even went to the extent of ordering a coffin for the ‘dead’ baby. However, the complainant with her motherly instinct still believed that her baby was alive and prevailed upon her husband to also take their first twin to the Hospital.

 

4. Both the twins were thus rushed to and admitted into hospital where it was found that the first twin who had been declared dead by the Appellant-Doctor was in fact quite alive. The baby was treated there along with the second twin and was restored to health.

 

5. Shocked at the callousness and negligence of the Appellant-Doctor in declaring the live infant dead, the Complainant-mother filed an F.I.R. before the Shillong Police Station and thereafter on 19.6.95 also filed a complaint before the District Forum, Shillong, registered as Complaint Petition No.18(S) 95.

 

6. The Appellant-Doctor as Opposite party filed his show cause before the Forum where he admitted that he had written ‘Brought dead’ but with a note of interrogation on the Discharge Slip and denied that there had been any negligence on his part in treating the twins. Besides this show cause reply filed under Affidavit, the Appellant-doctor advanced no further evidence before the Forum in the form of personal testimony or otherwise.

 

7. Having heard Counsels from both sides and basing its decision on the evidence before it, the District Forum, inter alia, came to the following findings and conclusion in its order dated 3.7.97:

 

            “The assertion and contention of the OP that the word “brought dead” as mentioned by him in Exihibit-2 was only his query as the baby ceased to breathe temporarily and no audible heart beat could be found would go against all the medical norms and ethics. Making query by giving a declaration in writing of having “brought dead” and then to say that it was only the query is unacceptable and the OP is expected to take all acre and precaution before such declaration is made and should be well satisfied first as to the inherent facts and circumstances, that life was completely terminated from the baby.”

 

            “When the complaint against the OP was such of a serious magnitude we failed to understand as to why the OP refrained himself from making his appearance before the Forum and also to adduce evidence. Of the Op has his right which he has chosen to be so. Since no evidence was led from the OP’s side to rebut and demolish the evidence of the Complainant, it is proved beyond all reasonable doubt that the OP by giving such declaration of writing “brought dead” to the twin No.1 of the complainant was in extreme callousness and negligent towards the complainant by super-scribing the ultimate fate and by blowing the mortal threat to the attending anxious mother which has no parallel in any civic society and for such negligence OP is liable to pay certain damages to the complainant.”

 

8. With the further observations that “The mental agony suffered and under-gone by the complainant is not easy to gauge and there is no monetary value that can supplement, afford relief or compensate the mother’s wound which befell on her on that fateful day and, we hope, that by the passing of time, such agony will be diminished if not forgotten completely,” the Forum awarded a compensation of Rs.1,20,000/- together with costs of Rs. 5000/- to the Complainant to be paid by the Doctor within one month from the date of its order, failing which interest @15% p.a. would accrue thereon.

 

9. In the Appeal filed by him the Appellant-Doctor has raised several grounds in support of his prayer to set aside the order dated 3.7.97 passed by the District Forum, Shillong. We have heard Smt P.D.B. Baruah, learned counsel fro the Appellant-Doctor and Sjri. S.P. Mahanta, learned counsel for the Respondent-Mother. The relevant grounds of appeal pressed by the learned counsel for the Appellant and the arguments advanced in support thereof are stated below:

 

A)    That the Respondent had filed an F.I.R. before the Shillong Police Station which was pending and as such the complainant could not seek relief before the District Forum on the principle of double jeopardy.

 

B)     That as the Respondent had not made any payment to the Appellant when she visited his private chamber, she was not a consumer in the eye of law and the proceedings before the District Forum were not maintainable.

 

C)    That the District Forum should have been convinced that there was no negligence on the part of the Appellant by writing the remarks “Brought dead” in the Discharge Certificate as the baby was brought to the Doctor in a morbid condition with no audible heart-beat sound or respiration and that such a mistake was quite likely in the absence of equipments in the private chamber of the Appellant. Further that the District Forum should have declared that remark “Brought dead” was just an error; moreover, the remark was given with a note of interrogation and that, in any event, the Appellant had advised the Complainant to rush the infant to a Hospital for treatment.

 

D)    That the District Forum should have been convinced that since the Doctors at the Hospital found signs of life in the baby and responded well to their treatment, the mental tension of the parents was for a very limited period of time.

 

E)     That the complaint is highly malafide and motivated and is nothing but a gambling in litigation.

 

10. Before taking up the aforesaid grounds and arguments serially, we must make the ground clear. At the outset we must state that while the case is no doubt of a very serious nature, yet the question before us is very limited. The question is – Was the Appellant-Doctor indeed guilty of medical negligence by declaring the Complainant’s live baby dead?

 

We must observe here that, as appears from the records, this short and central issue has been skirted from the very beginning and a large part of the arguments made on behalf of the Appellant-Doctor before the District Forum related to the actions and inactions of the complainant and the Appellant-Doctor either on dates before 6.6.95 when the doctor declared the baby dead or after that. A major part of the order passed by the District Forum too is devoted to these arguments which are, in our opinion, irrelevant and immaterial in deciding the real issue.

 

11. Ground A regarding maintainability is totally misconceived. Section 3 of the Consumer protection act, 1986 provides that – “The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.” The complainant is therefore clearly entitled to seek Redressal before the Consumer Fora ‘in addition to’ seeking justice as per the provisions of ‘any other law’ viz. the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 etc. The principle of double jeopardy has no operation in this case. We therefore reject this ground raised by the Appellant.

 

12. Ground B regarding non-payment of fees has been raised for the first time by the Appellant before us and finds no mention whatsoever either in his Show Cause or in the arguments made on his behalf before the District Forum. We are therefore not inclined to consider this ground at this late stage, more so in the absence of either any averment or evidence by the appellant to this effect. It appears to us that this line of defense is an after-thought. It is not conceivable that a Doctor would accept patients in his private chamber without charging any fee, unless he was running a charity.

 

13. However, even assuming, for the sake of argument, that no fee was charged by the Doctor from the Complainant, he could not walk away from the ambit of the Consumer protection Act on this plea. The service rendered by him would still fall under the definition of ‘Service’ under Section 2(1) (o) of the Act as it is not the case of the Appellant-Doctor that he renders free service to each and every patient that comes to his private chamber for medical consultation-his stand is only that the Respondent did not make any payment to him.

 

14. The landmark decision of the Honorable Supreme Court reported in AIR 1996 SC 550 (Indian Medical Association –Vs- V.P. Shantha) guides our decision on this issue, where in para 56 the Apex Court has summarized its conclusions and in sub-para (1) thereof held as follows:

 

“(1) service rendered to a patient by a medical practitioner (except where the Doctor renders service free of charge to every patient or under a contract of personal service0, by way of consultation, diagnosis and treatment, both medical and surgical, would fall within the ambit of ‘service’ as defined in section 2(1)(o) of the Act.”

 

15. Now, the operative and key word here is ‘every’. It is only if the doctor treats each and every patient who comes to him without charging any fee that he could claim to be exempted from the purview of the C.P. Act. If he charges fees from some patients and yet treats some others free, under such circumstances the services rendered by him even to those patients whom he treats free would also fall within the ambit of ‘Service’ as defined under the Act. Such patients who are treated free would also be consumers for the purposes of the Act and would therefore be entitled to file complaints and claims before the Redressal Agencies.

 

15. The heart of the matter lies in the Ground C where the Appellant has started that his declaration of death was’ just an error’ and ‘such a mistake was quite likely in the absence of equipments’. Objective though we must be in reaching our decision on this ground, we must confess that the light-hearted, unremorseful and unrepentant attitude of the Appellant. Which is evident from the very ground that he has taken, and the very logic that he was used to establish his lack of negligence, breaks our own hearts.

 

17. Let us first briefly examine the settled legal position with regard to the duties and obligations of a medical practitioner towards his patients, the true test for establishing medical negligence and the distinction between a bonafide excusable mistake and a negligent inexcusable one, to the extent necessary in the facts and circumstances of this case.

 

18. The Apex Court in its judgment reported in AIR 1969 SC 128(Dr. Laxman Balkrishna Joshi –vs- Dr. Trimbak Bapu Godbole and another) held in para 11 – “The duties which a Doctor owns to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, Viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task 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.”

 

19. In AIR 1998 SC 1801 (M/S Spring meadows Hospital –vs- Harjol Ahluwalia) the Honorable Supreme Court has held in Para 9 as follows:

 

“With the emergence of the Consumer Protection Act no doubt in some cases patients have been able to establish the negligence of the doctors rendering service and in taking compensation thereof but the same is very few in number. In recent days there has been increasing pressure on hospital facilities, falling standard of professional competence and in addition to all, the ever increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence. That apart there has been a growing awareness in the public mind to bring the negligence of such professional doctors to light. Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a Court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonably skill of a competent doctor.”

 

In Para 10 it was further held that a gross medical mistake will always result in a finding of negligence.

20. In Lord Nathan’s medical Negligence, 1957 Edition, the following observation of Lord President Clyde in Hunter –vs- Hanley, (1955) SLT 213, is relied upon at page 21:

 

“The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care might have made, then it is not negligence.”

 

22. These authorities when applied to the facts of the case leave no doubt in our minds that the finding of negligence on the part of the doctor as made by the Forum was quite justified. In our opinion the act of declaring the live infant dead is not an error that would have been made by a reasonably competent doctor acting with ordinary care and professing to have the standard and type of skill that the Appellant-Doctor holds out as having, namely D.C.H., D.C.H.R.C.P., D.T.M & H. degrees. The mistake by the medical practitioner is one which no other reasonably competent and careful practitioner would have committed and is thus a negligent one.

 

23. Further, in our view, if the Appellant-Doctor had no equipments in his private chamber to help him even distinguish between a dead and a living patient, as claimed by him, he ought not to have accepted patients in his private chamber. If informing the parents that their child was dead and writing ‘Brought Dead’ with date and time on the discharge slip, (whereas, in fact, he baby was alive) was not an act of negligence but ‘just an error’ as alleged by the Appellant, we wonder which other act would constitute medical negligence. The Appellant, a licensed doctor, could not afford to make ‘mistakes’ of such gravity as pronouncing live human beings dead.

 

24. We may also state here that the Appellant’s defense that the remark “Brought Dead” made by him was given with a note of interrogation is not borne out by the records. We have the original Discharge Slip of the baby, admittedly written in the Doctor’s hand, before us. It simply says “Brought dead”. A rectangle has been drawn around these two words and outside the rectangle is further written “6/6/95 – 11 AM”. We fail to see any note of interrogation (for which the symbol ‘?’ is universally used) anywhere after these fateful remarks. This aspect of the matter also appears to have escaped the attention of the Forum, not that it affected its decision.

 

25. A faint effort was also made by the learned Counsel for the Appellant to negate the Forum’s finding of negligence on the plea that the Doctor had, in any case, asked the complainant-mother to rush the infant to the Hospital for treatment, which advice the Respondent has of course denied.

 

26 We find this assertion too a bit hard to swallow. Having written “Brought Dead” on the Discharge slip and having verbally told the parents that the baby was dead; it would be unimaginable that a doctor would, at the same time, advice them to take the child for treatment to a Hospital.

 

27. In view of the above discussion relating to ground (C) and in the facts and circumstances of the case and in the light of the settled legal position stated by us above we cannot agree that the Act of the Appellant in pronouncing the live baby as dead was not an act of medical negligence. In our view the Appellant was callous and negligent. Had it not been for the hand of Providence and a mother’s deep love for her child and her motherly instinct, such negligence on the part of the Doctor would have surely cost the child her life. Resultantly, we confirm the Forum’s finding of medical negligence on the part of the Doctor.

 

28. Ground (D) taken by the appellant relating to the short duration of the complainant’s anxiety is equally unacceptable to us and shocks our conscience. It amounts to telling the parents – “Alls well that ends well. The baby is after all, alive and healthy. So what if I pronounced her dead? The intention that I gave you lasted for hardly an hour. So what’s the big deal?” This is hardly the correct approach on the part of the Doctor.

 

29. We can imagine the shock, sorrow and pain of a child’s parents when they are told by a Doctor that their infant child is dead. The mental agony that they undergo cannot be measured in length of time. Even the shock of the moment is one that would surely linger forever, notwithstanding the joy of later finding the baby alive and healthy, whenever the moment is relived in memory. Moreover, in our opinion the matter needs to be looked at not only from the angle of what had happened but also seen from the perspective of what could have happened and yet, mercifully, did not happen. Inevitably an innocent child would have been buried alive and, worst of all, no one would have even known. This ground therefore cannot but be rejected by us.

 

30. Lastly, ground (E) attributing motives to the complainant and describing her act of filing a complaint before the District Forum as ‘gambling in litigation’ renders us speechless. All we can say is that the Appellant has only succeeded in rubbing further salt into the wounds of the complainant. It would have served the Appellant better to have used less ill-advised language and to have rather expressed some remorse over his actions.

 

31. In view of the above discussions and observations we hold that the Appeal is totally devoid of merit and as such we dismiss the same. We uphold the award of compensation to the tune of Rs. 1, 20,000/- (Rupees one lac and twenty thousand only) to be paid by the Appellant/Opposite party to the Respondent/Complainant together with interest @ 15% p.a. from 3.7.97 till the date of payment after reducing therefrom the sum of Rs.50, 000/- already paid by the Appellant in terms of our interim order and the interest relatable thereto.

 

Before parting with the case, we wish the child who has been our subject of our attention in this case and whose name are yet to learn, a very happy, healthy and long life.