At, Delhi State Consumer Disputes Redressal Commission New Delhi
By, THE HONOURABLE MR. JUSTICE B.A. ZAIDI
By, PRESIDENT & THE HONOURABLE MR. M.L. SAHNI
For the Appearing Parties: -------.
M.L. Sahni, Member (Judicial), J.
1. This revision petition is directed against the Interim order dated 21.04.2010 in complaint case no. 268/2008 whereby the application of the OP/respondent was allowed for referring the questions regarding medical negligence on the part of the OP/respondent to a Board of Doctors of any Government Hospital for medical opinion in view of law laid down in case of Martin F. D’Souza Vs Mohd. Isfhaq AIR 2009 SC 2049.
2. The contention of the appellant/complainant before the District Forum was that the above said judgment does not pertain to pending cases but is applicable only to new cases where the complaint have been filed on the ground of medical negligence and the complaint would be admitted only after obtaining the expert’s report of medical faculty.
3. We have heard the Ld. Counsel for the appellant/complainant and we find no merit in this contention especially in view of latest judgment of the Hon’ble Supreme Court passed in Civil Appeal No. 1385 of 2001 decided on 02.10.2010.
4. The Hon’ble Supreme Court in para 94 of the judgment has observed as follows.
i) 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 of 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 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 unnecessarily harassed or humiliated, so that they can perform their professional duties without fear and apprehension.
(xi) 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 professional /hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
(xii) 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 professionals.
5. Their Lordships observed that above stated the principles must be kept in view while deciding the case of medical negligence that as long as the doctors have performed their duties and exercise an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.
6. In the light of above stated observations of the Hon’ble Supreme Court we find no faul
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t with the impugned order whereby the Ld. District Forum has only allowed the application of the OP/respondent for referring the matter to the Medical Board for expert opinion on alleged medical negligence in the case before it. 7. We find no merit in the revision. Hence the same is dismissed as impugned order requires no interference. 8. Copy of order be provided to the parties free of cost and one copy be sent to the concerned District Forum and thereafter file be consigned to record room.