RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
COMPLAINT NO. 88 OF 2020
- Robin Keshavaji
S/o Lare Sri Virendra Kumar Keshavaji
MS-52, Sector D, Aliganj, Lucknow
...Complainants
Vs.
- Vivekanand Polyclinic & Institute
of Medical Sciences
VivekanandPuram, Lucknow-226007
- Mr. Ujjwal Maheshwari
C/o Managing Director
Vivekanand Polyclinic & Institute
of Medical Sciences,Vivekanand Puram
Lucknow-226007
- Unknow
C/oVivekanand Polyclinic & Institute
of Medical Sciences
Vivekanand Puram, Lucknow-226007
...Opposite Parties
BEFORE:
HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT
HON’BLE MR. VIKAS SAXENA, MEMBER
For the Complainant : Sri Prasoon Srivastava, Advocate.
For the Opposite parties : Sri Vikas Agarwal, Advocate.
Dated : 12-04-2022
JUDGMENT
PER MR. VIKAS SAXENA, MEMBER
The instant complaint has been filed under Section 17 of the Consumer Protection Act, 1986 by Sri Robin Keshavaji against the opposite parties with the following prayers:-
“1. Pass an order directing OP 1 to submit all documents pertaining to the treatment of the Patient before this Hon’ble Commission at the early stage of the proceedings.
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2. Pass an order in favour of the Complainant and against the OP 1 directing them to pay to the Complainant a sum of amount Rs.30,00,000/-for deficiency in providing services.
3. Pass an order in favour of the complainant and against the OP 2 and 3 directing them to pay Rs.30,00,000/- jointly or severally to the complainants for negligent performance of duties that resulted in loss of Life of the Complainant’s father (Patient).
4. Direct the Opposite Party No.1 to pay the cost of Rs.55,000/- being towards legal expenses the cost of this Complaint.
5. Pass such order or further order(s) as this Hon’ble Commission may deem fit and proper in the interest of justice.”
Facts of the case stated in brief are that the complainant’s father visited in the emergency ward of opposite party No.1 on 03-02-2020 with the problem of Chest Discomfort where the opposite party conducted ECG and observed abnormality in heart functioning and thereafter admitted in the ICU on the same date i.e. 03-02-2020. The opposite party No.2 at around 8 PM entered into the ICU and informed to the complainant that the patient had a cardiac arrest in ICU, thereafter opposite party no.2 in ICU fixed a temporary pacemaker.
It has been stated in the complaint that the opposite party No.2 conducted angiography on 04-02-2020 and diagnosed that the patient had 3rd Degree Heart Block and advised permanent Pacemaker and planned for operation after 10 days from fixing the permanent pacemaker. The opposite party No.2 decided to operate and fix the permanent pacemaker on 05-02-2020 at 11 AM.
It has been further alleged in the complaint that in the meanwhile due to fixing the pacemaker (temporary) the patient recovered from the problem of Chest Discomfort. The diagnosis at 11.30 PM on 04-02-2020 shows the normal blood pressure and pulse rate and opposite party No.2 advised opposite party No.01 to monitor
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vitals. On 05-02-2020 at around 1.00 AM the opposite party No.3 informed the complainant that the patient is feeling uneasy and thereafter as per the Indoor Continuation Sheet at 2.05 AM on 05-02-2020 the patient suddenly went into ‘Asystole’ which means ‘Asystole is defined as a cardiac arrest rhythm in which there is no discernible electrical activity on the ECG monitor. As per records maintained by opposite party No.01 and opposite party No.03, the patient was undergone complete heart blockage at 2.05 AM on 05-02-2020 meaning thereby the patient died before conduct of operation for removal of blockage and fixing the permanent pacemaker.
It has been further stated by the complainant in his complaint that when the complainant entered into the ICU it was seen that opposite party No.3 with the help of other staff members were trying to revive the patient. The opposite party No.02 arrived hospital at around 2.40 AM on 05-02-2020 and after physical verification he declared patient dead at 3.11 AM. The question arose in the present circumstances that when the patient had 3rd degree blockage of arteries then why the opposite party No.2 planned for operation/treating the patient for removal of blockage after ten days from the date of fixing the permanent pacemaker, which should be done immediately to avoid further complications.
It has been alleged in the complaint that the heart of the patient was controlled and regulated by pacemaker and sudden cardiac arrest can be happen only in circumstances of disconnection of pacemaker or stoppage its working. In the present circumstances, when the pacemaker was fitted outside the body, the probability of disconnection of pacemaker is more. As per the hospital records the opposite party No.02 was not present in the hospital at 2.05 AM on 05-02-2020 but he declared the patient died at 3.11 AM. Therefore, the doubt arises that whether the patient died at 2.05 AM or at 3.11
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AM when opposite party No.2 reached the hospital on the call of opposite party No.01.It has been further stated in the complaint that as per the hospital record the opposite parties No. 01 and 03 was giving regularly CPR to the patient from 2.05 AM to 3.11 AM, the question arises that when the heart was not working and the whole cardio system was based on pacemaker then mentioning CPR in the indoor continuation sheet is merely to show that they tried to save the patient regularly till the arrival of opposite party No.02. The complainant alleged in his complaint that on 11-02-2020 he discussed with opposite party No.02 who himself admitted that the patient died due to disconnection of pacemaker.
The complainant further alleged in his complaint that the opposite party No.01 indulged in the illegal/unfair trade practices and deficiency of service causing loss of life of his father through several modus operandi and the opposite parties No. 1, 2 and 3 are severally and jointly responsible for the loss of life of the patient due to their negligent acts and deficient in providing the services for which they should be held liable to compensate the complainant for mental torture, harassment and agony. The complainant is a consumer under the definition of Consumer under Section 2(1)(d) of the Consumer Protection Act, 1986.
Learned Counsel for the opposite parties No.01, 02 and 03 has filed the written statement and has denied the allegations made by the complainant in his complaint.
It has been stated by the opposite parties in their written statement that there is no question of any medical negligence by the opposite parties and the opposite parties have been falsely and vexatiously implicated by the complainant for medical negligence. The complainant has stated incorrect facts on complete miss appreciation of the real medical position in the matter.
It has been further stated by the opposite parties in their written statement that the opposite parties have duly discharged their
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duty of reasonable care and skill while diagnosing and administering treatment on the patient and followed the protocol of reasonable care and caution and thus there being no question of any negligence. The allegations as alleged in the complaint case are false, fabricated and without any proof of expert report.
The opposite parties have stated in the written statement that a doctor cannot be held negligent simply because something goes wrong after one and half hour of successful procedure of wire removal. It is only when the doctor falls below the standard of reasonable competent practitioner, so much so that their conduct is inexcusable. Since in the present case there was no evidence on record in respect of the above, the complaint case is liable to be dismissed with cost.
The opposite parties have further stated in the written statement that the patient was brought in critical condition on 03-02-2020 at 7.50 P.M. to the opposite party No.01 with complaint of chest discomfort, pain in neck and in upper Abdomen. Accordingly, the Doctors of the opposite parties immediately done the ECG and ruled out the case of Heart Blockage and observed that the patient was in shock status and his sugar level was grossly deranged and there was no heart beats as such the patient was immediately admitted in ICU of the opposite party No.01 where the treating Doctors started CPR due to critical condition of the patient. After giving CPR and best efforts of the treating doctors few heart beats to come and as per requirement temporary Pacemaker Machine placed TP1 through subclavian route without any delay was fitted externally through suture properly and after TP1, treating doctors gave continued CPR so that some mechanical compression is to be continued the heart and result of this whole effort was patient’s heart again started pumping and heart rate was reached around 80. After this process the treating doctors focused on other deranged parameters of the patient as BP was in lower side for which the
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patient was put on Vasopressor support and necessary life saving medicines were administered for increase BP of the patient. The RBS of the patient was 542 as such insulin injection was started and since the Oxygen Saturation of the patient was also in lower side so that the patient was put O2 support and routine Blood investigation were sent at the same time as urgent basis. The Blood report of the patient’s Serum & Creatinine level was grossly derange which was about 2.61, Blood Urea was also derange about 68.48, TLC Count’s were also raised as 14100 (P81%) which indicates blood infection also. In blood report patient’s Liver Function were also deranged. The patient’s Electrolytes were also deranged. In view of the deranged Blood Reports corrective measures were given by way of life saving injections by the treating doctors as per protocol and due to best efforts of the doctors the patient was stable in ICU and the critical condition of the patient was duly informed by the doctors to the attendants of the patient.
It has been stated by the opposite parties in the written statement that during night of 03-02-2020 patient also complaining of shortness of breath for which Intermittent BIPAP support was also given and it was observed that patient’s urine output was nil for which Nephrology Consultation was taken in view of deranged Renal function and Nil Urine output and the Nephrologists diagnosed as the case of MOD RF and advised for Dialysis support if patient remain Oligconic and the critical condition of the patient was duly informed to the attendants of the patient.
On 04-02-2020 around 12.00 PM treating Doctors advised for Coronary Angiography to rule out any Thrombotic Lesion in Heart Arteries and with the consent of the attendants of the patient Angiography was done in all 3 Coronaries Arteries. In CAG none of Arteries were having Thrombotic Lesion, so explanation of the Heart Attach causing Heart Block was ruled out. During Angiography
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treating Doctors used Inj. Heparin which Anticogulate the Blood, so there was no possibility of fixing Permanent Pacemaker.
On 04-02-2020 there was also complaint of Hematuria for which Urology Consultation was taken from Urologist and on the advice of Urologist necessary steps were taken for the interest of patient. On 04-02-2020 Blood Report KFT was again send which shown still further deranging Renal Function which was duly informed to the attendants of the patient. On 04-02-2020 the urine output in 12 hours was around 300 ml. For which again Nephrology opinion was taken regarding deranged Renal Function and on the advise of Nephrologists continue conservative treatment was given to the patient. During whole day of 04-02-2020 patient’s blood pressure was maintained on high dose of Vasopressor.
It has been further stated by the opposite parties in the written statement that on 05-02-2020 about 2.00 PM patient underwent Cardiac Pulmonary Arrest with Asystole for which immediate CPR was started and CPR was given about 45 – 1 hour and during CPR life-saving Injections were given to the patient but inspite of best efforts patient had taken his list breath. The patient was died due to their critical condition where patient age around 80 years, Post CPR survival, Grossaly deranged Renal Function, Grossaly deranged Blood Sugar, Raised Blood infection Cells, Deranged Lung capacity, Severe Coronaries Arteries disease, Deranged Electrolytes, Cardiac Pulmonary Arrest in obvious complications.
At this stage it is pertinent to mention that it is well settled legal position in medical negligence law that only expectation from a treating doctor is that whether he has discharged his duty of reasonable care and skill and treated the patient as per standard medical protocol and thereafter irrespective of the consequence of such treatments the courts cannot hold the doctor guilty of any medical negligence solely on the basis of the outcome of such a treatment. Sudden Cardio-respiratory Arrest is a known medical
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complication and Cardiovascular disease is a lending cause of death as per Medical Literature & Science.
The complainant concealed the material facts in the complaint and did not place the correct facts in order to extract illegal gain and allegation of medical negligence on the part of opposite parties was alleged only go get hefty amount of compensation in lakhs by filing false and frivolous complaint on wrong facts. There is no material whatsoever on record to indicate that the death of the patient was due to negligence of the opposite parties and no expert report either by any doctor in this regard was filed by the complainant which shows that the opposite parties were negligent to perform their duties or any treatment. The complaint is wholly erroneous and against the medical expert opinion, hence alleged complaint being frivolous ought to have been dismissed with heavy cost.
Evidence has also been filed by the learned Counsel for the complainant alongwith various annexures which are available on record.
We have heard Sri Prasoon Srivastava, learned Counsel for the complainant and Sri Vikas Agarwal, learned Counsel for the opposite parties and perused the documents which are referred by the learned Counsel for the respective parties and also the record and have also considered the judgments which are relied upon by the Counsel for the opposite parties.
It has been argued by the learned Counsel for the complainant is against the illegal and unfair trade practices as well as deficiency in services being indulged by the opposite parties, who breached the duty to administer the treatment of the patient and due to take care of the patient and treated the patient with lack of due care and precaution.
It has been further argued by the learned Counsel for the complainant that the opposite parties have adopted delaying tactics for giving proper treatment on time to earn more money during the
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admission of the patient resulted in loss of life of the patient without getting treatment and that the opposite party No.01 in connivance with opposite parties No. 2 ad 3 kept misleading complainants and did not inform them about seriousness of the case and even probability of disconnection of the Pacemaker that may cause sudden ‘Asytole’, because of their ulterior motive to earn illicit money through surgery, admission and cost of Pacemaker device. The opposite party No.1 failed to proper monitor the connection of Pacemaker that resulted in loss of life of the patient without being attended by the doctor at the last moment of his life during his last breath.
It has been further contended by the learned Counsel for the complainant that the patient died accidently in ICU, therefore, he is duty bound to satisfy the complainant the reason behind asytole but he refused to give proper explanation to the complainant and concealed the fact being the accidental/sudden blockage of heart when Pacemaker was connected. The opposite party No.01 leave the patient on opposite party No.3 and their staff and did not took any step to monitor the functioning or the way they handled the patient, that is the foremost function of the management of the Hospital. The opposite party No.01 did not appoint any specialist doctor of equal competence to the main treating doctor in the ICU at night hours.
Learned Counsel for the complainant has argued that the opposite party No.2 in connivance with opposite party No.1 attempted to delay in conducting operation for clearing blockage of arteries and fixing the Pacemaker at the right/permanent place to earn more money during the admission of the patient in the ICU. The opposite party No.2 being the principal consultant is responsible for medical negligence for not giving proper treatment for removal of blockage of arteries on time.
It has been further argued by the learned Counsel for the complainant that the opposite party No.3 is incompetent for doing
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the medical profession as she failed to monitor the vital signs of the patient which were duly displaying on the monitor attached with the bed of the patient also at the monitor fixed/placed at the main sitting area of opposite party 3/ICU in-charge. The opposite party No.3 did not inform the complainant/attendants about the sudden asytole happened at 2.05 AM, which was further informed after more than an hour by opposite party No.2 after the death of the patient.
Learned Counsel for the opposite parties has argued that Opposite Party No.01 i.e. Vivekanand Polyclinic & Institute of Medical Sciences is a Multy Specialty Center of repute and has to its credit successful treatment related various types of diseases on numbers of patients each year. The opposite party No.01 is a developed Medical Cnter to all its patients in a most dedicated manner and has as part of its team well qualified and well experienced Medical and Para Medical Staff. Similarly the treating Doctors of the opposite party No.01 are the doctors of vast experience and well qualified Doctor of repute and have been rendering untiring satisfactory service to all their patients in a most dedicated manner. .
From the averments of the opposite parties it is clear that the patient was brought in critical condition on 03-02-2020 at 7.50 P.M. with complaint of chest discomfort, pain in neck and in upper Abdomen. Accordingly the ECG was got done and ruled out the case of Heart Blockage and observed that the patient was in shock status and his sugar level was grossly deranged and there was no heart beats as such the patient was immediately admitted in ICU of the opposite party No.01 where the treating Doctors started CPR due to critical condition of the patient. After giving CPR and best efforts of the treating doctors few heart beats to come and as per requirement temporary Pacemaker Machine placed TP1 through subclavian route without any delay was fitted externally through suture properly and after TP1, treating doctors gave continued CPR so that some
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mechanical compression is to be continued the heart and result of this whole effort was patient’s heart again started pumping and heart rate was reached around 80. The BP was in lower side for which the patient was put on Vasopressor support and necessary life saving medicines were administered for increase BP of the patient. The RBS of the patient was 542 as such insulin injection was started and since the Oxygen Saturation of the patient was also in lower side so that the patient was put O2 support and routine Blood investigation were sent at the same time as urgent basis. The Blood report of the patient’s Serum & Creatinine level was grossly derange which was about 2.61, Blood Urea was also derange about 68.48, TLC Count’s were also raised as 14100 (P81%) which indicates blood infection also. In blood report patient’s Liver Function were also deranged. The patient’s Electrolytes were also deranged. In view of the deranged Blood Reports corrective measures were given by way of life saving injections by the treating doctors as per protocol and due to best efforts of the doctors the patient was stable in ICU and the critical condition of the patient was duly informed by the doctors to the attendants of the patient.
It also evident that during night of 03-02-2020 patient also complaining of shortness of breath for which Intermittent BIPAP support was also given and it was observed that patient’s urine output was nil for which Nephrology Consultation was taken in view of deranged Renal function and Nil Urine output and the Nephrologist diagnosed as the case of MOD RF and advised for Dialysis support if patient remain Oligconic and the critical condition of the patient was duly informed to the attendants of the patient.
On 04-02-2020 around 12.00 PM treating Doctors advised for Coronary Angiography to rule out any Thrombotic Lesion in Heart Arteries and with the consent of the attendants of the patient Angiography was done in all 3 Coronaries Arteries. In CAG none of Arteries were having Thrombotic Lesion, so explanation of the Heart
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Attack causing Heart Block was ruled out. During Angiography treating Doctors used Inj. Heparin which Anticogulate the Blood, so there was no possibility of fixing Permanent Pacemaker.
On 04-02-2020 there was also complaint of Hematuria for which Urology Consultation was taken from Urologist and on the advice of Urologiest necessary steps were taken for the interest of patient. On 04-02-2020 Blood Report KFT was again send which shown still further deranging Renal Function which was duly informed to the attendants of the patient. On 04-02-2020 the urine output in 12 hours was around 300 ml. For which again Nephrology opinion was taken regarding deranged Renal Function and on the advise of Nephrologists continue conservative treatment was given to the patient. During whole day of 04-02-2020 patient’s blood pressure was maintained on high dose of Vasopressor.
It has been shown by the opposite parties that on 05-02-2020 about 2.00 PM patient underwent Cardiac Pulmonary Arrest with Asystole for which immediate CPR was started and CPR was given about 45 – 1 hour and during CPR life saving Injections were given to the patient but inspite of best efforts, the patient had taken his last breath. The patient was died due to his critical condition where patient was aged around 80 years, Post CPR survival, Grossaly deranged Renal Function, Grossaly deranged Blood Sugar, Raised Blood infection Cells, Deranged Lung capacity, Severe Coronaries Arteries disease, Deranged Electrolytes, Cardiac Pulmonary Arrest in obvious complication.
It is well settled legal position in medical negligence law that only expectation from a treating doctor is that whether he has discharged his duty of reasonable care and skill and treated the patient as per standard medical protocol and thereafter irrespective of the consequence of such treatments the courts cannot hold the doctor guilty of any medical negligence solely on the basis of the outcome of such a treatment. Sudden Cardio-respiratory Arrest is a known
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medical complication and Cardiovascular disease is a well known cause of death as per Medical Literature & Science. In this conditions no negligence can be attributed on the part of the opposite parties Doctors, unless certain practice or procedure by the doctor is proved by the complainant which gives rise to an interpretation that the doctor was negligent in treating the patient. This has been held by the Honourable Supreme Court in case Devarakonda Surya Shesh Mani and ors. vs Care Hospital, Institute of Medical Sciences and ors. reported in IV(2022) CPJ page 7 that the mere allegations of medical negligence are not sufficient but the complainant should prove it by positive evidence which leads to conclusion that the doctor failed in his duty towards the patient in a case of medical negligence.
2. Unless the appellants are able to establish before this Court any specific course of conduct suggesting a lack of due medical attention and care, it would not be possible for the Court to second-guess the medical judgment of the doctors on the line of medical treatment which was administered to the spouse of the first appellant. In the absence of any such material disclosing medical negligence, we find no justification to form a view at variance with the view which was taken by the NCDRC. Every death in an institutionalized environment of a hospital does not necessarily amount to medical negligence on a hypothetical assumption of lack of due medical care.
Relying upon the aforesaid judgement of the Honourable Apex Court we find that the complaint has not given ample evidence from which it may be concluded that the death of the patient was due to negligence of the opposite parties and also neither any expert report by any doctor nor any medical literature has been produced by the complainant which shows that the opposite parties were negligent to perform their duties or any treatment.
Before coming to a conclusion it is necessary to mention here that the skill of a medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than
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one course of treatment which may be advisable for treating a patient. The honourable Apex Court and honourable NCDRC has advised that the Courts should be slow in attributing negligence on part of a doctor, if he has performed his duties to be best of his ability and with due care and caution. The negligence must be established and not presumed. A bona-fide mistake is excusable, but a mistake which would tantamount to negligence cannot be pardoned. If it is an error that such a man, acting with ordinary care might have made, then it is not negligence. Balom's test, which is recognised in various pronouncements of Honourable Supreme Court and Honourable NCDRC makes it clear that the medical practitioner must do his task with 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. However, gross medical mistake will always result in finding of negligence and in some situations principle of Res ipsa loquitur can be applied.In Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582. It was to the effect that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
In the case of Martin F. D’Souza V/s Mohd. Ishafq reported in 1(2009) CPJ 32(SC) the Hon’ble Supreme Court of India in para 117 has held that
“Medical practitioner not liable for negligence simply because things went wrong from mischance/misadventure through error of judgment and the Medical practitioner would be liable only where his conduct fell below that of standards of reasonably competent practitioner in his field and simply because patient not favourable responded to the treatment given by doctor or surgery failed, doctor cannot be held straightaway liable for medical negligence by applying doctrine of res ipsa loquitur..
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Further in the case of Jacob Methew V/s State of Punjab and another reported in III (2005) CPJ 9 (SC) the Hon’ble Supreme Court realizing that doctors have to be protected from frivolous complaints of medical negligence, relying upon, in para 49 of its judgment laid down certain rules
49.(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.
In the case of Ms. Ins. Malhotra V/s Dr. A. Kriplani and others (2009) 4 SCC 705 the Hon’ble Apex Court has laid down principle for assessing negligence of a doctor. Relevant part of the judgment is extracted below:-
“Negligence in the context of the 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
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chosen to follow or resort to that practice or procedure which the accused followed.”
In the case of Kusum Sharma and others V/s Batra Hospital & Medical Research Centre and others (2010) 3 SCC 480 wherein Hon’ble Apex Court has considered the issue of medical negligence and has laid down following principles.
“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\
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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 professional.”
In the case of V. Kishan Rao V/s Nikhil Super Speciality Hospital, III(2010) CPJ 1 (SC) = (2010) 5 SCC 513Hon’ble Apex Court has held that :-
47. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
In the case of Dr. Monica Singla and others V/s Tej Bhan Taneja and others reported in I (2016) CPJ 588 (NC) the Hon’ble National Commission has also considered the principle of res ipsa loquitur and has held that there is two following step process to establish res ipsa loquitur –
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(1)whether the accident is the kind that would usually be caused by negligence?
(2)Whether or not the defendant had exclusive control over the instrumentality that caused the accident?
In the instant case we do not find any concrete evidence available on record from which we can come to a conclusion that any medical negligence has been committed by the opposite parties while treating the patient in the hospital.
Having heard the learned Counsel for the parties and after going through the materials and evidence available on record we find force in the argument of learned Counsel for the opposite parties that the complainant has failed to prove any medical negligence has been committed by the opposite parties in the treatment of the patient. Whatever the treatment was provided to the patient was as per the line of treatment prescribed under the medical norms.
In view of discussions made above, after having gone through pleadings of the parties as well as evidence on record, we are of the view that the opposite parties have committed no medical negligence in the treatment of the patient and have also not committed any deficiency in service and the instant complaint is liable to be dismissed.
ORDER
The complaint is dismissed.
There will be no order as to costs.
Let copy of this order be made available to the parties as per rules.
The Stenographer is requested to upload this order on the website of this Commission at the earliest.
( JUSTICE ASHOK KUMAR ) ( VIKAS SAXENA )
PRESIENT MEMBER
Pnt.
