Ramesh Bawri, Member - The present Complaint Petition was filed by Mrs. S.R. Nongrum (hereinafter referred to as the `Complainant') wife of late D.L. Tharuh on behalf of all his heirs and legal representatives. During the pendency of the Complaint, Mrs. S.R. Nongrum herself passed away and as such the case was proceeded with after bringing onto record the names of the legal representatives of the deceased complainant, all of whom were her children, namely (1) Mrs. Soniya Vica Nongrum (Daughter) (2) Mr. Danny Nongrum (Son) (3) Mr. Ricky Nongrum (Son) (4) Mr. Frankie Nongrum (Son) (5) Mr. Anthony Nongrum (Son) (6)          Miss Lakyntiew Nongrum (Daughter) and (7) Mr. Henry Ford Nongrum (Son). Complainant Nos.6 & 7 who had then not attained maturity were represented by their elder brother, Mr. Frankie Nongrum.

 

2.         The Complainant's case is that on 29.7.95 as Mr. Tharuh fell ill, his wife approached Dr. W. Kharshiing the O.P. No.2, (hereinafter `Dr.K') who referred him to the care of O.P.No.1 i.e. Woodlands Nursing Home (hereinafter `WNH')             and to the treatment of O.P.No.3, Dr. N.K. Nath (hereinafter `Dr. N').

 

3.         Mr. Tharuh was admitted to WNH with acute pain in the           abdomen which was independently diagnosed as a case of Acute Pancreatitis on the date of admission by all the 3 doctors who attended him viz. the house physician of OP             No.1, Dr. K. and Dr. N. Although several tests and      examinations, mostly Blood Tests, were carried out on the patient and he was treated by the Doctors at WNH, the condition of the patient deteriorated during his stay.       Despite this, Dr. N failed even to refer the case to a specialist and the Complainant was kept in the dark about          the seriousness of the patient's condition. Ultimately Mr.    Tharuh was shifted to Down Town Hospital, Guwahati (OP       No.4, hereinafter `DTH') on 6.8.95 in a precarious          condition where he unfortunately breathed his last on     8.8.95.

 

4.         According to the Complainant, Sri Tharuh died on         account of utter negligence, lack of attention, improper treatment and medication on the part of all the OP's and has sought compensation to the tune of Rs. 18 lacs from them, jointly and severally.

5.         OP Nos. 1 to 4 in their respective show causes have     denied all the allegations of negligence and lack of proper treatment and medication and have asserted that the best possible medical care was rendered by them  without any lapse on their part and that the complaint is         frivolous.

 

6.         Mr. Frankie Nongrum, son of Mrs. S.R. Nongrum and further one Mr. Rabibul Islam, a friend of late Tharuh, deposed as witnesses from the Complainant's side. Dr. K. and Dr. N. also appeared as witnesses to give their  evidence while Dr. N. Choudhury and Dr. G.S. Ahmed were examined on behalf of O.P. No. 4. Further, during the         hearing the following documents were exhibited :

 

            Ext. X-1           -           Bed Head Ticket of Late Tharuh maintained at

                                                 WNH (OP No.1) containing 11 sheets.

           

Ext. X-2           -           Copy of the Bill dated 6.8.95 for Rs.11699/-

                                                 raised by WNH being the total charges for

                                                 treatment of late Tharuh from 29.7.95

                                                 to 6.8.95.

           

Ext. X-3           -           Copy of the Receipt dated 20.9.95 for the

                                                 above Bill.

           

Ext `A' :                        Set containing Admission Sheet; OPD Sheet;

                                                 Progress Reports and Doctors orders; Intake-

                                                 output Chart; Nurse's Record Sheet; Medicine

                                                 Record Sheet; Blood Test Reports; Medical

                                                 Certificate of Death - all relating to DTH

                                                 (OP No.4).

Besides, three expert witnesses, namely, Dr. D. Goswami, Dr. T. Das and Dr. M. Saikia, were also examined  before the Commission, for whose expert medical evidence we record our appreciation.

 

7.         This Commission gave several opportunities to both the sides to settle the matter amicably outside the Commission             as a result of which even disposal of the case was partly            delayed. However as the parties failed to arrive at a             settlement, we have heard at length the learned Counsels           both for the Complainant as well as for the Opposite Parties. We have deeply studied the depositions of all the          witnesses including those of the expert witnesses. We have also meticulously gone through all the exhibited documents         as listed above. Both sides have submitted their written arguments which too we have considered and applied our minds to.

 

8.         In our view, for a fair and just determination of the         case, the complaint has to be seen in two separate parts and periods. (i) Between 29.7.95 and 6.8.95 when the deceased was at WNH under the treatment of Dr. N. and Dr. K. and (ii) between 6.8.95 and 8.8.95 when he was at DTH.

9.         In respect of the first period between 29.7.95 and 6.8.95, the substance of the statements and arguments of       the Complainant appears to be that although on or about 3.8.95 the condition of late Tharuh started deteriorating, OP. Nos. 1, 2 and 3 neither took necessary steps to call in a specialist doctor nor informed the patient's relatives about the seriousness of his condition nor advised them to shift the patient to another hospital where dialysis facilities were available although, by             then, it became clear that dialysis was imperative for the patients welfare and no dialysis facilities were available at WNH. According to the Complainant they were advised by      OP Nos. 1, 2 and 3 to shift the patient for dialysis only on 6.8.95 which they accordingly did, but by that time it was too late and, in this view of the matter, the death of     late Tharuh occurred owing to the negligence of O.P. Nos. 1, 2 and 3.

 

10.       The common stand of O.P. Nos. 1, 2 and 3 is that they rendered the best possible treatment as per their diagnosis of Acute Pancreatitis (Alcohol-induced) and took simultaneous steps to prevent and check other co-related eventualities which were likely to arise due to the physical state of the patient, including renal failure, liver malfunction etc. However, in spite of necessary drugs being administered, the blood urea of the patient           which was normal on 30.7.95 was tested to be 373 MG/DL on       3.8.95 which was grossly above the normal rate and therefore on 3.8.95 itself O.P. No.3 prescribed that the patient be put on dialysis for which he advised the patient as well as the Complainant to go to GMC Nephrology Unit at Guwahati but they did not go until 6.8.95. In order to substantiate their statement, they also referred to the endorsement made on 3.8.95 at Page 2 of the Bed    Head Ticket (Ext. X-1B) maintained by WNH stating "Blood urea very high. Adv dialysis and party is informed accordingly, " written in the hand of Dr. N.

           

11.       In contrast, the Complainant's stand as stated above is that she was never advised to shift the patient      for dialysis before 6.8.95 and further that the endorsement made in the Bed Head Ticket (Ext. X-1B) was an after-thought on the part of O.P. Nos.1, 2 and 3 in order            to cover up their negligence and this was well possible  because the Ticket was all along in the possession of O.P. No.1.

 

12.       We have given the matter deep thought as regards the aforesaid endorsement said to have been made on 3.8.95. We have examined the related documents thoroughly, particularly Ext. X-1B. No doubt this endorsement advising that the patient be put on dialysis is on record. However the question is was it made on 3.8.95 as stated by Dr. N. in his statement under oath (Quote-"Ext. X-1B is an endorsement made in the ticket by me. I made this endorsement on 3rd of August. This endorsement indicates that on 3rd blood urea was very high and I advised him dialysis and the party was informed accordingly.") or was    it inserted later as an after-thought as alleged by the       Complainant? We are afraid that in the absence of any definitive proof to the contrary brought before us by the Complainant we cannot reach any definitive finding that the endorsement was indeed made at a later date as suggested by the Complainant and we have to give the benefit of the doubt to Dr. N. However, it must be said here that it would have been prudent and expected of OP No.3 to have repeated his advice to the patient and his relatives to shift the patient for dialysis. Whether this was done or not remains in the realm of conjecture as the         arguments of both sides have centered around the above entry made on 3.8.95.

 

13.       As regards the contention of the Complainant that          by not referring the case to a specialist, O.P. Nos. 1, 2 and 3 have acted negligently, what needs to be firstly determined is what was the true nature of his disease and         secondly whether the OPs were competent enough to treat that disease or needed the assistance of a specialist. With regard to first question, we find from the entries made both by the Attending Physician of WNH as well as By Dr. K. in the Bed Head Ticket maintained by WNH (Ext. X-1) that he was diagnosed upon admission as suffering from Acute Pancreatitis. This was the diagnosis made by Dr. N. too, as per his evidence. The Medical Certificate of Death issued by DTH also reveals that late Tharuh was admitted          with Acute Alcoholic Pancreatitis and Azotemia and Gastroenteritis. Moreover, there is no contrary evidence to show that the diagnosis made by the OP's was wrong nor is this the case of the Complainant. As such we are satisfied that late Tharuh was correctly diagnosed as suffering from Acute Alcoholic Pancreatitis.

 

14.       Now, we are to see whether the OP's were       negligent in not calling in a specialist. Dr. T. Das,            expert witness has stated that "Physician is fully            competent to look after the cases of pancreatitis. But whenever possible I would take the help of Gastro Enterologist." With this uncontroverted expert opinion that a physician is fully competent to look after a case of pancreatitis, which indeed was the ailment of the      patient, on record, we are unable to hold that in the confirmed case of acute pancreatitis O.P. Nos. 1, 2 or 3           acted negligently by not referring the case to a Specialist. It would perhaps have been prudent for them to do so as suggested by the expert witness but failure on this count cannot lead to a finding of negligence on the             part of O.P. Nos. 1, 2 and 3.

 

15.       Now coming to the allegation of improper treatment and medication on the part of the O.P.s, we have already found above that the patient was rightly diagnosed as suffering from Acute Pancreatitis. The question to be decided is - Was the patient given the correct treatment         for the malady by the O.P.s?

             

16.       As regards the course of treatment for Acute Pancreatitis the expert opinion of Dr. D. Goswami which is            on record is that - "For acute Pancreatitis thumb rules for management is (No.1) Nil by month (2) Fluid replacement as per need. Antibiotic may be administered or may not be. In such cases antibiotic should not be administered orally, it may be injected." It is the          contention of O.P. Nos. 1, 2 and 3 that the course of treatment followed by them was quite proper and in  conformity with the expert opinion of Dr. Goswami. No             serious dispute has been raised in this respect by the Complainant and we too are satisfied upon perusal of the           Bed Head Ticket (Ext. X-1) and its Annexures viz. TPR             Chart and Intake-output Chart that the course of treatment adopted by the OP's was broadly in line with that suggested by Dr. Goswami.

 

17.       In view of the above we are of the opinion that no         negligence can be attributed to O.P. Nos. 1, 2 and 3 in respect of the course of the treatment undertaken by them in the case.

 

18.       The Complainant has also alleged that even though        the condition of late Tharuh was stated to be serious he was not allowed to be moved out by O.P. No.3 till each and every bill of his and that of O.P. No.1 was cleared. The evidence on record however does not support this allegation. It is clear from Ext. X-2 that a Bill dated 6.8.95 for Rs. 11699/- was drawn in the name of Sri D. L. Tharuh by WNH. However Ext. X-3 which is the office copy of the Receipt issued by WNH acknowledging the payment of    the due sum of Rs. 11699/- is dated 20.9.95. We thus find        that the patient was in fact released on 6.8.95 by the OPs    even without payment of the medical bill which was paid only on 20.9.95 and thus the statement of the Complainant           on this count is not correct.

 

19.       Now coming to the allegations relating to           deficiency in service on the part of DTH for the second period from 6.8.95 to 8.8.95, we find that there is hardly any specific averment in the Complaint Petition against       DTH (OP No.4) in this regard. One solitary line in Paragraph 13 of the Petition states - "Even in the Hospital of Respondent (read : O.P.) No.4 not much care  was taken by the staff and Doctors attending." The only             other averment against DTH (O.P. No.4) is contained in      Para 15 where it is stated - "Sri Tharuh died on account            of lack of proper medication, negligence at the behest of Respondent (read: OP) No. 1 to 4. If proper medication had been given at proper time, Sri Tharuh could have             survived."

 

20.       In our opinion the aforementioned charges against          DTH are very vague and indefinite; moreover, the Complainant has made no effort to prove any of them in her evidence. Further these are denied by DTH in their show cause and, according to them, on the own admission of the      Complainant, late Tharuh was in a precarious condition when admitted into DTH and yet he was given all the care      and treatment that was due to him and every endeavor was             made for the survival of the patient - hence there was no question of any negligence or deficiency in service on their part. DTH also tendered in evidence the entire  medical records maintained by them relating to the patient          in question (Ext. - A) to buttress their stand.

 

21.       Although the Complainant filed a rejoinder to the           Show Cause of O.P. Nos. 1 to 3, no rejoinder was filed in             response to the show cause reply of O.P. No.4 nor were the medical records exhibited by DTH controverted by the Complainant. It is only in the written argument filed on  behalf of the Complainant at the conclusion of the hearing that it has been stated that dialysis on late Tharuh started only at 3.30 pm on 7.8.95 that is 20 hours after his admission which is an act of negligence on the part of       DTH which not only aggravated but also hastened the end to the life of late Tharuh. At this very late stage the O.P. No.4 had no opportunity to rebut this allegation and as such we do not think that it would be just and fair to now entertain this allegation which is contained only in the      written argument submitted by the learned counsel for the Complainant at the concluding stages of the hearing.

 

22.       Further, no doubt, medical institutions such as Hospitals and Nursing Homes can be held primarily liable when there is deficiency in the services provided by them    by a breach of their own duties such as failure to supply             the equipment necessary for the treatment of patient etc. Hospitals and Nursing Homes would also be vicariously     liable if the doctors, whether on their rolls or consultants, or the staff, are negligent or deficient in their services. However, to hold them to be so vicariously liable, it is imperative for the Complainant to implead the doctors against whom negligence is alleged as parties to the Complaint so that they may get an opportunity to defend themselves. [See Basant Seth & Anr -Vs- Regency Hospital Ltd. 2000 (2) CPR 62 (NC)].

 

23.       In the instant case, however, no Doctor or Staff of DTH has been impleaded as a party which rules out at the threshold any vicarious liability on their part. The allegation of delay in commencing the dialysis is, in our opinion, not one that relates to the primary duties of DTH. In view of all the above, we are unable to hold that            DTH was negligent in the services provided by it to the     patient.

 

24.       Lastly, we are required to look into the allegation made by the Complainant in a general manner regarding the utter negligence in the conduct of all the four O.P.'s, which is said to have led to his demise. Before entering into the merits of this allegation, it would be beneficial to briefly notice the settled legal position with regard to the duties and obligations of a medical practitioner towards his patients, the true tests for establishing medical negligence and the burden and     standard of proof therefor insofar as is necessary for a fair decision in this case.

 

25.       The Apex Court in its judgment reported in AIR 1969 SC 128 (Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole & another) held in Para 11 - "The duties which a doctor owes 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 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."

 

26.       In Nathan's Medical Negligence, 1957 Edition, the        following observation of Lord President Clyde in Hunter V. Hanley, (1955) SLT 213, is relied upon at page 21:-

 

27.       It is stated by Nathan in this book at page 43:

             

 

28.       At page 104 of this Book, Nathan has further observed:-

 

 

29.       Lord Denning M.R. pointed out in Hucks V. Cole,        (1968 (118) New Law Journal 469) as follows:

 

 

30.       As regards the burden of proof, at page 580 of Charlesworth on Negligence, it is stated that:

 

31.       In I(1999) CPJ 13 (NC) (Calcutta Medical Research Institute -Vs- Bimalesh Chatterjee & Ors.) it was held that the onus of proving negligence and resultant deficiency in service was clearly on the Complainant. Further, in III(1999) CPJ 9 (NC) (Kanhaiya Kumar Singh -Vs- Park Medicare & Research Centre) it was held that - "Negligence has to be established and cannot be presumed." Both these decisions of the National Commission related to medical negligence.

 

32.       Dr. H.S. Mehta in his Medical Law and Ethics in India, 1963 Edition, at page 209 observes:-

 

 

33.       It is inarguably clear from these authorities         that, in order to decide whether negligence is     established in any particular case, the alleged act or           omission or course of conduct complained of, must be judged not by ideal standards nor in the abstract but against the background of the circumstances in which the             treatment in question was given and the true test for establishing negligence on the part of a doctor is as to whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with reasonable care. Merely because a medical procedure fails, it cannot be stated that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden of proving the same rests upon the person who asserts it. There is no question of warranty, undertaking or perfection of a skill. The standard of care and skill to satisfy the duty is that of the ordinary competent medical practitioner exercising the ordinary  degree of professional skill.

 

34.       Whatever we have stated above in relation to doctors and medical practitioners is, in our opinion, equally and similarly applicable to medical institutions suchas Nursing Homes and Hospitals for determining whether or not they are negligent with regard to the respective services rendered by them and whether they are primarily or vicariously liable as discussed above, unless            they fall within the exceptions laid down in AIR 1996 SC           550 (Indian Medical Association -Vs- V.P. Shantha).

 

35.       Viewed against the backdrop of this settled       position of law as discussed in the foregoing paragraphs             and in the facts and circumstances of the case, as     revealed by the evidence before us and in view of the discussions made above, we are of the opinion that the Complainant has not been able to prove any negligence     against any of the Opposite Parties by way of any evidence             including that of a Medical Expert or from any Medical Literature to show that what the OPs did was not expected of Doctors of average skill or that they did not do what was expected of Doctors possessing ordinary skill, acting with reasonable care.

 

36.       Thus, although our sympathies are with the        Complainant's legal representatives in their bereavement,           as we have reached the finding that no case of medical negligence has been made out by the Complainant against the Opposite Parties, this Complaint is therefore dismissed. No costs.

 

37.       However, before parting with the case we would add here that, as mentioned by us earlier, several opportunities were given to the parties to settle the matter amicably amongst themselves. Although no final settlement could be reached as a result of which hearing of this case proceeded to its logical conclusion, learned            Counsel for O.P. Nos. 1, 2 and 3 expressed before this    Commission on behalf of their clients that while they       categorically denied any negligence on their part in handling the case, they too felt saddened at the demise of            late Tharuh, particularly as his wife - the Complainant,    Smt. S.R. Nongrum - too passed away soon thereafter, leaving behind their seven children. O.P. Nos. 1, 2 and 3,  without approaching the matter in the spirit of litigants in an adversary action and purely on human consideration and with deepest regard to their sentiments jointly    offered to pay a total sum of Rs. 50,000/- to the legal representatives of late Tharuh. Similarly, O.P. No.4 while        also denying any negligence on its part offered to give a             suitable job in its Hospital to any one of the legal representatives on record.

 

38.       We take the OPs up on their offer and direct that          O.P. Nos. 1, 2 and 3 shall jointly deposit a sum of Rs.             50,000/- (Rupees fifty thousand only) in the Registry of this Commission within 2 weeks of receipt of a copy of this order and each of the seven legal representatives of late D.L. Tharuh namely (1) Mrs. Soniya Vica Nongrum, daughter; (2) Mr. Danny Nongrum, son; (3) Mr. Ricky Nongrum, son; (4) Mr. Frankie Nongrum, son; (5) Mr. Anthony Nongrum, son; (6) Miss Lakyntiew Nongrum, daughter; and (7) Mr. Henry Ford Nongrum, son, will be at liberty to withdraw 1/7th of this sum each upon appearing in person and being identified by any Advocate and upon

furnishing proper individual receipts therefor.

 

36.       We further direct that O.P. No.4 shall within 2 weeks of receipt of a copy of this order furnish to the Registry of this Commission a list of the jobs in various grades being offered by them indicating the required qualifications and pay scale. The Registry shall immediately send copies of the list to all the aforesaid seven legal representatives of late D.L. Tharuh,             individually, whereupon they would be at liberty to send             in their applications for jobs of their choice directly to DTH but within 3 weeks of despatch of the list from the Registry. DTH shall select one from amongst these applicants, after conducting interviews if so required,          and issue the appointment letter within 4 weeks of receipt of the applications.