Shri Vivek Bhadhauria (Petitioner in RP No. 2064 of 2009) was the complainant before the District Forum, where he filed a complaint alleging deficiency in service on the part of the opposite parties. It was the case of the complainant before the District Forum that on 9.07.04 he felt severe pain in abdomen and was continuously vomiting for which he got admitted with the OP No. 1 Sama Nursing Home. After pathological test, the ailment of the complainant was diagnosed as “Choledocholithiasis with acute Cholangitis”, for which the OP No. 1 suggested Endoscopic Retrograde Cholangio-Pancreatography (ERCP) procedure, which was conducted at Sir Ganga Ram Hospital by OP No. 3, Dr. Anil Arora, wherein OP No. 3 extracted a stone and placed a stent in CBD (Common Bile Duct). After ERCP the complainant was sent to the Sama Nursing Home for observation from where he was discharged on 22.07.04. The complainant was visiting regularly the OP No. 1 to check-up but since the pain in abdomen was recurring, he was again referred to OP No. 2 & 3, where for the second time, ERCP Procedure was done after which he was discharged on 31.08.04. Since the Complainant was not feeling comfortable at the time of discharge, he consulted Dr. S.K. Jain, who advised the removal of ‘stent’. The complainant was admitted in G.B. Pant Hospital on 3.09.04 wherein third ERCP was done and he was discharged on 8.09.04. The stent was removed on 15.10.04 as per medical advice of Dr. S.K. Jain. It was the case of the complainant that instead of four ERCP procedures to remove the problem, this could have been done only, by doing one ERCP procedure. The repeated ERCP procedures caused lot of pain, financial loss, mental agony and risk of infection on account of negligence of the opposite parties. It is in these circumstances a complaint was filed before the District Forum, who after hearing the parties allowed the complaint and directed the first opposite party, i.e., Sama Nursing Home to pay Rs.2 lakh by way of financial loss, mental and physical harassment, cost of Rs.10,000/- was also awarded. Aggrieved by this order, the Sama Nursing Home, filed an appeal before the State Commission, who passed the following order:- “Thus, in our view, there was no medical negligence so far as the line of treatment or procedure adopted by the appellant Nursing Home is concerned. However, the inconvenience suffered by the patient appears to be due to the alleged long or over stay at the appellant Hospital, for which he had to incur huge expenses. However, without holding the appellant Sama Nursing Home guilty for any kind of medical negligence, but may be, due to some reasons the patient might have been made to stay for longer than needed, we, on compassionate ground award a lump sum compensation of Rs.50,000/- (Fifty thousand) including cost of litigation.” Aggrieved / not satisfied with this order, both the parties have filed separate revision petitions before us. We heard both the parties at considerable length. Admittedly, the basic facts are not in dispute but as per settled law, the State Commission has in fact written a very comprehensive, detailed and informed order, than the District Forum. By now, it is well-settled law that in case of medical negligence the onus of proof lies with the complainant, who has to prove his allegation of medical negligence with the help of expert opinion. In the present case, no expert opinion has been led to by the complainant in support of his contention of medical negligence. The Hon’ble Supreme Court in the case of “Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole” has observed as under:- “The duties which a doctor owes to his patient are clear. 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.” No such case has been made out by the complainant in Revision Petition No. 2064 of 2009 that Sama Nursing Home committed any breach of the duties caste upon him. It is also by now well-settled law that in order to prove the medical negligence the onus is on the petitioner as to what the doctor ought to have done which he did not do, or, what he did which he should not have done. This has to be proved with the help of ‘expert’ medical opinion. No such expert opinion has been brought on record. Counsel for the petitioner wishes to rely upon the prescription of Dr. S.K. Jain, which remains an unproven document. He also wishes to rely upon the report of Mahajan Imaging Centre, which also remains unproven document and not supported by any affidavit. We have very carefully gone through the prescription of Dr. S.K. Jain (appearing at page 144 of the paper-book). After going through this document, we are unable to appreciate as to in what manner Dr. Jain holds Sama Nursing Home guilty of medical negligence. It is by now a well-settled proposition of law, that in medical field at best / worst, there could be two different opinions to deal with a given case. If any Doctor adopts one line of treatment, which is acceptable to large body of medical professional, it will not amount to medical negligence. No evidence has been led to prove that the line of treatment adopted by Sama Nursing Home was not as per accepted medical practice. We have also seen the report of Mahajan Imaging Centre and the opinion given in that report, reads as under:- “Opinion : MR findings are suggestive of :- 1. Choledocholithiasis – Stone in common bial duct. 2. A lobulated collection in close relation to the left main hepatic duet / left lobe radicals with evidence of shrinkage of left lobe of liver? Cholangiticabscess. Please correlate clinically.” Again we are unable to appreciate as to how does the complainant wish to use this document, to build a case of medical negligence, against the Sama Nursing Home especially when the stone was removed? The basic tenet of the allegation of medical negligence is that instead of 4 ECRP Procedures, one would have been sufficed. There is no opinion, expert or otherwise, led by the complainant in support of such contention. Report of Mahajan Imaging Centre and the prescription of Dr. S.K. Jain does not help the case of the complainant in establishing a case of medical negligence on the part of Sama Nursing Home. They nowhere supports the contention of the complainant that one ECRP Procedure should have sufficed. In view of the well-settled proposition of law, and in the absence of any expert evidence, in our view the complainant has completely failed to prove his case of medical negligence on the part of the Sama Nursing Home (Petitioner in RP No. 1493 of 2009) in view of which, we find no merit in revision petition (RP No. 2064 of 2009) filed by the complainant, which is dismissed. As far as RP No. 1493 of 2009 filed by the Sama Nursing Home is concerned, it is limited to grant of Rs.50,000/- by the State Commission to the complainant despite not holding the Petitioner guilty of medical negligence. Even though this amount has been granted despite not holding the Sama Nursing Home guilty of any medical negligence, yet on human consideration, we were inclined to direct Sama Nursing Home to pay this amount, but in the presence of the complainant / on instruction of the Complainant, the Counsel for the Complainant clearly stated that he is not interested in accepting Rs.50,000/- granted by State Commission. In the circumstances enumerated above, we allow the Revision Petition No. 2064 of 2009 filed by the Sama Nursing Home and order passed by State Commission is set aside to the extent that it awarded Rs.50,000/- to the complainant. Both the revision petitions stand disposed off in above terms.
......................JASHOK BHANPRESIDENT
......................B.K. TAIMNIMEMBER | |
