w w w . L a w y e r S e r v i c e s . i n



D.K. Gupta v/s Escort Heart Institute & Research Center & Others


Company & Directors' Information:- GUPTA CORPORATION PRIVATE LIMITED [Active] CIN = U40100MH2005PTC154038

Company & Directors' Information:- M R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1992PTC051324

Company & Directors' Information:- A G RESEARCH PRIVATE LIMITED [Strike Off] CIN = U85120TG2014PTC093661

Company & Directors' Information:- GUPTA INDIA PRIVATE LIMITED [Active] CIN = U51311DL1996PTC077255

Company & Directors' Information:- GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U52110DL1974PTC007339

Company & Directors' Information:- GUPTA AND GUPTA PRIVATE LIMITED [Active] CIN = U55204DL1954PTC002390

Company & Directors' Information:- I AND D RESEARCH PRIVATE LIMITED [Active] CIN = U74140DL2003PTC118439

Company & Directors' Information:- S K GUPTA PRIVATE LIMITED [Active] CIN = U26900MH1973PTC016294

Company & Directors' Information:- J R N INSTITUTE PRIVATE LIMITED [Active] CIN = U80302DL2004PTC127742

Company & Directors' Information:- R. K. GUPTA AND COMPANY INDIA PRIVATE LIMITED [Active] CIN = U74899DL1993PTC052138

Company & Directors' Information:- B R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U63013DL2000PTC107343

Company & Directors' Information:- T N GUPTA PVT LTD [Active] CIN = U02005WB1951PTC020141

Company & Directors' Information:- H S & E INSTITUTE PRIVATE LIMITED [Active] CIN = U80301KL2011PTC029468

Company & Directors' Information:- A V GUPTA AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U24239DL1999PTC102248

Company & Directors' Information:- Y P GUPTA AND COMPANY PVT LTD [Under Process of Striking Off] CIN = U74899DL1983PTC016661

Company & Directors' Information:- J B RESEARCH PRIVATE LIMITED [Active] CIN = U74920MH2005PTC158461

Company & Directors' Information:- K V R INSTITUTE PRIVATE LIMITED [Strike Off] CIN = U80903TN2001PTC046438

Company & Directors' Information:- J S GUPTA AND CO PVT LTD [Strike Off] CIN = U20211UP1975PTC004078

Company & Directors' Information:- M K GUPTA AND CO PRIVATE LTD [Strike Off] CIN = U74999DL1979PTC009517

Company & Directors' Information:- A J GUPTA AND CO PRIVATE LIMITED [Strike Off] CIN = U74210UP1980PTC004986

Company & Directors' Information:- D. R. GUPTA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1944PTC000794

Company & Directors' Information:- S P GUPTA AND CO PVT LTD [Strike Off] CIN = U26932RJ1972PTC001459

Company & Directors' Information:- U 2 RESEARCH PRIVATE LIMITED [Strike Off] CIN = U73100MH2008PTC179902

    Complaint No. 224 of 2002

    Decided On, 29 March 2020

    At, Delhi State Consumer Disputes Redressal Commission New Delhi

    By, THE HONOURABLE MR. ANIL SRIVASTAVA
    By, PRESIDING MEMBER

    For the Petitioner: Syed Hasan Isfahani, Advocate. For the Respondents: R1, Rohit Puri, R2, Madhukar Pandey, R4, Aman Bakshi, Advocates.



Judgment Text

Anil Srivastava, Presiding Member1. This complaint under Section 17 of the Consumer Protection Act, 1986, the Act, has been filed before this Commission by Sh. D.K. Gupta resident of Aligarh, for short complainant, against M/s. Escort Heart Institute and Research Centre, for short EHIRC Dr. Parveen Chandra, consultant Cardiologist, EHIRC, M/s. Vimhans Hospital, Delhi and Dr. S. Dewivedee, Consultant Neurologist, hereinafter referred to as OP-1 to OP-4, respectively, alleging deficiency of service and negligence on the part of OP-1 and OP-2 in the matter of treatment to the complainant as also negligence on the part of OP-3 and OP-4 for covering up the inaction and misdeeds of OP-1 and OP-2 and praying for the relief as under:It is therefore most respectfully prayed to this Hon’ble State Commission that under the facts and circumstances mentioned above, this Hon’ble Commission may be pleased to:(a) Grant compensation of Rs. 16,15,000 along with interest @ 9% since the first day of cause occurrence in favour of the complainants and against the OPs herein be granted for their deficiency of services and negligence provided per-formed in the services given to the complainant/patient which directly resulted to him in permanent disability along with degradation in quality of life for whole life along with reducing the quantity of the life in terms of period etc., in terms of detail given in para No. 17 as mentioned above which is payable jointly and/or severally by the respondents.(b) Award costs of his complaint in favour of the complainant against the OPs.(c) Pass such other and further orders which this Hon’ble Commission may deem fit and proper under the facts and circumstances of the case.2. Facts of the case necessary for the adjudication of the complaint are these.The complainant otherwise, under the medication for the ailment he was suffering from the Diabetes Mellitus and Hypertension, had mild chest pain on 5.6.2000 and therefore, ECHO Cardio Graphic Test was done to him and suspecting anterior wall myocardial infarction on ECG(MI) he was referred to OP-1 for further examination, investigation diagnosis and for treatment. Consequently the complainant approached the OP-1 with all the papers and soon thereafter for further process he was referred to OP-2 who, after getting two forms signed, shifted him to Cath Lab for performing cardiac catheterization and coronary angiography. After performing the process he was found to be suffering from “Coronary Artery Disease-severe tripal vessel disease with left ventricular ejection function-35% only with anterior wall Myocardial Akinesia other than diabetes and hypertension and for which emergency heart surgery in form of CABG is highly necessary to be performed without delay. On the assurance of the Op-1 and OP-2 that the surgery would be done to the complainant by Dr. Naresh Trehan, he got himself admitted in the Hospital on 6.8.2000. Surgery was fixed for 10.8.2000 and accordingly on that day he was to be taken to the operation theatre. The allegation is that no assessment was made whether the patient was ready for the purpose. Later he was actually shifted to Cath Lab for the reason that there was found blockage in the pipe of neck for which carotid cerebral angiography was to be done first. This could not be assessed earlier though should have been done. CABG was decided to be done later.3. The allegation is that the surgery was not done, nor Dr. Naresh Trehan attended though he had consented for treatment from the OP Hospital only on the strength that Dr. Trehan would do the surgery. The CABG surgery was not performed as in the process of Carotid-cerebral angiography a atheromatus plaque was dislodged from the carotid artery and impacted the brain, resulting in the patient going in hardly leaving it possible to revive him; since the Carotid Artery of the complainant was exceptionally hard because of thickened wall, and after performing the non invasive 2D-Caroid Doppler Test of both side carotid artery it was found that there was big blocked in the Lumen because of Calcified plaque in both side Caroid Artories which supplied blood directly to the brain from the heart through neck, and all this causing up to 70% stenosis/blocked in these Caroid Artories. It was thus felt necessary to find out the site of Caroid Artories in actual and then remove it before going for CABG; that unfortunately while performing angiography procedure and probing in the Caroid Artories, a Calcified plaque from the right side Coronary artery dislodged suddenly and impacted in right side of brain leading to stop the blood supply of brain. Fortunately the patient was revived. In these circumstances the surgery was not performed. This way the negligence on the part of OPs. 1 and 2 according to the complainant stood established as they were found wanting in the discharge of their duty towards the complainant, resulting in complete damage. Secondly the OP-2 taking the complainant to the operation theatre without accompanying a doctor from the field of Neuro-Physician had aggravated their negligence.4. It was at this stage on 19.8.2000, the OP-4 was consulted. As a consequence thereof the patient was shifted to OP-3. But there also nothing could be done. The allegation of the complainant is that it is a case of “Res ipso Loquitor”.5. OPs were noticed and in response thereto they have filed separate written statementresisting the complaint, both on technical ground and on merit.Written Statement filed by OP-1 and OP-26. The Op-1 and Op-2 have submitted in their written statement that the complainant has failed to establish or disclose any act or omission on the part of the answering respondents which could constitute negligence or deficiency in service, and hence is liable to be dismissed. The patient received treatment in accordance with the highest standards of medical practice keeping in mind the medical history of the patient who was a known case of Hypertension and Diabetes Mellitus. Further the allegations of obsolete and outdated procedures being performed on the complainant are wholly misconceived and devoid of any merit. The complainant was treated in accordance with the highest standards of medical practice, and no deficiency of service or negligence can be attributed to the answering respondents in this regard. On merit of the case their submission is that in all cases of Coronary Angiography, Carotid and Renal Artery Angiography is not carried out, unless specifically indicated. In the present case, the complainant was admitted to the respondent institute for the purpose of surgery on 6.8.2000. Various tests/investigations including the Carotid Doppler Test were carried out prior to the surgery. Carotid Angiography was necessitated keeping in view the result of the Carotid Doppler Test. The patient was taken up for Carotid Angiography on 10.8.2000, but the procedure had to be abandoned as the patient developed weakness of left side, and was unresponsive soon after the cannulation of carotid artery. The patient was thereafter shifted to the Heart Command Centre for further management. OPs have submitted that during investigation, prior to the CABG, the Carotid Doppler Test revealed large plaque in the right common carotid artery causing 40% stenosis, calcified plaque in right carotid bulb extending into RICA causing 60-70 and stenosis and calcified plaque in left carotid bulb causing 70% stenosis.In these circumstances, arguing that there is no negligence on their part, the answering OPs have prayed for dismissal of the complaint, allegation of negligence having not been established.7. Written Statement on behalf of OP-3The OP-3 has submitted inter alia that there being no privity of contract or any assurance given by the OP-3 in rendering any special kind of services of medical treatment given to the complainants, the complaint is not maintainable qua them as there is no medical negligence and accordingly prayed for dismissal of the complaint to this extent.8. Written Statement on behalf of OP-4The OP-4 while denying the allegation qua them on merit, submitted in their written statement that the complainant has failed to establish or disclose any act of commission or omission on the part of the answering respondent, which can constitute negligence or deficiency in service, and hence is liable to be dismissed qua the answering respondent at Escorts Heart Institute and Research Centre & VIMHANS Hospital, in accordance with the highest standards of medical practice. Thirdly, OP-4 has denied that the complainant was shifted from EHIRC to VIMHANS Hospital, without the consent of the attendants of the complainant. It is also denied that the complainant was shifted to cover up negligence of the respondent Nos. 1 and 2 and that the answering respondent was hand in glove with respondent Nos. 1 and 2. It is submitted that in view of the neurological medical condition of the complainant, he was advised by the answering respondent to undergo neuro-physiotherapy, hence, he was discharged from EHIRC Hospital and shifted to VIMHANS Hospital on 19.8.00. It has been recorded in the nurses chart for 19.8.00 that“Discharge summary explained to the relatives. X-ray (4) and report CT (8) and report, (2) ECG, D/C summary, own things handed over to the relatives. Patient is discharged and shifted to VIMHANS Hospital and Ryles Tube, Foley’s and I/V Cannula”9. The complainant had thereafter filed rejoinder rebutting the contentions raised in the reply filed by the OPs and reiterating his allegations as contained in the complaint. Parties to the case have filed their evidence by way of affidavit in support of their pleadings. Written arguments are on record. Expert opinion since received is also on record.10. This case was listed before this Commission for final hearing on 13.2.2020 and 29.2.2020 when the Counsel for the complainant and Counsel for the OPs-1, 2 and 4 appeared and advanced their arguments, the complainant alleging deficiency and negligence on the part of the OPs for the compensation and the OPs for the dismissal of the complaint, the allegation of the negligence according to them not having been established in the facts and circumstances of the case.11. Short question for adjudication in this complaint is whether the allegation of negligence as against the OPs established. This leads to another question as to what constitutes medical negligence. Before I may examine this, I may advert to the expert opinion received from the Maulana Azad Medical College extracts of which are as under:As per the submitted records, following are the observations of the committee and opinion thereof:(a) Patient was 48 years old male. Known case of NIDDM (not well controlled), hypertension. Patient had silent anterior wall MI in 2000 for which coronary angiogram was done.CAG: LAD Mid 100%, LCX 80% X dominant, RCA (N) X non-dominant,EF = 35%. Patient was advised for Coronary Artery Bypass Graft (CABG).(a) Patient was admitted for CABG on 6.8.2000.CT (NCCT) done on 8.8.2000 - Shown no lesionHolter on done 8.8.2000 - Normal study(a) Patient taken up for carotid angiography but developed left sided complete hemiplegic Procedure deferred and patient managed consultancy.CT plain on 10.8.2000 No evidence of bleed.Carotid Doppler on 11.8.2000 - No thrombus in carotidsCT brain was done on 12.8.2000 - shown multiple impacts in RMCA feretory with hyperdense thrombus-RMCA origin possibly(a) Patient developed left sides hemiplegic with left facial palsy following carotid angiography, which he was managed conservatively he was discharged on 19.8.2000 and was referred to VIMHANS. CABG deferred for 6 months. Consent for carotid angiography given 73C) signed by patient himself.(b) In this patient carotid angiography was planned before carotid endarterectomy to delineate the extent of the disease. It is usual to assume any event occurring during or after carotid angiography has been caused by it but it may be manifestation of the primary disease and part of the natural history. This is a known complication of carotid angiography. The overall risk of a neurological complication is 4% and the risk of permanent neurological deficit is about 1%.So, this patient who was planned for CABG with carotid endarterectomy was appropriately investigated. As he developed left sides hemiplegic. He was managed conservative and discharged on 19.8.2000, after appropriate treatment. His operation was deferred for 6 months. The management of this patient was as per standard treatment available of this disease. No medical negligence is found.12. I may now deliberate on the allegation of negligence keeping in view the facts and circumstances of the case read with the expert opinion on the subject. This leads to another question as to what constitutes medical negligence. Medical negligence is a complicated subject and the liability of a doctor depends upon the facts and circumstances brought on record. There may be cases of apparent deficiency/negligence in service by the doctors. Such cases of negligence can be broadly categorised as under:(a) The doctor does not give immediate treatment when required.(b) The doctor does not take precaution as per the medical jurisprudence of giving the test dose of medicines which are likely to be fatal in some cases or may cause allergy.(c) The post-operative treatment is not given properly.(d) The surgical wound is caused at a different place than required.(e) After operation, septicaemia or gangrene takes place.(f) Improper prescription of drugs. In case of fever, without knowing the cause of fever, combination of tablets and injections for malaria, typhoid, etc are freely used on trial and error basis.(g) Medical instruments are left in the body.(h) Mal-practice by the doctors, such as uncalled for pathological reports or investigations prescribed.13. Further, there may be allegations that in some cases where the surgery is not required, but the same is carried out, there is no pre-anaesthetic chek-up; delay in performing surgeries, there are certain instances of death on table; there are cases of hospital acquired infection which are not known to the consumers; some of the emergency cases not dealt with by the doctors promptly; transfusing wrong blood; performing a criminal abortion. In such cases, medical negligence being apparent medical practitioners would be liable to pay compensation or damages to the victim. Finally, what is expected from the medical practitioner is to take due care and caution while giving treatment as per the established medical jurisprudence. In other words, if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art, no question of deficiency would arise.14. Coming back to the facts of the case, the expert opinion has found the course of action by the OP Hospital and doctors in order which means no infirmity. It is trite law that in the matter of negligence as is the case, the only point of consideration would be to examine if the treating doctor was sufficiently qualified to administer the treatment and, secondly, when the doctor was sufficiently competent whether while administering the treatment he has observed due and necessary and precaution and thirdly whether timely steps for treating the patient were taken. On these accounts the OP Hospital, keeping in view the facts and circumstances cannot be faulted with since in the given case as per records immediate course of action was taken by the OP Hospital and if that be the case one cannot allege and establish mala fide in which case, the allegation of the negligence cannot be substantiated.15. The National Commission in the case of I (1999) CPJ 13 (NC) titled Calcutta Medicare Research Institute v. Bimalesh Chatterjee and Ors., ruled that “the onus of proving medical negligence and resultant deficiency in service was clearly on the complainant which in the given case remains unsubstantiated.16. The Hon’ble Apex Court in the matter of Kusum Sharma v. Batra Hospital, as reported in I (2010) CPJ 29 (SC)=II (2010) SLT 73=(2010) 3 SCC 480, was pleased to hold in para 89 as under:“89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view: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 4 (1968) 118 New LJ 469 5 (supra) 8 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 standard so far 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 high erelement 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 9 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 professionals.”17. I may at this stage refer to a decision in the case of Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through K.S. Ahluwalia & Anr., reported in I (1998) CPJ 1 (SC)=III (1998) SLT 684=(1998) 4 SCC 39. Their Lordships observed as follows:“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 skill of a reasonably competent doctor.”18. Having analysed the significance or otherwise of the case law on the subject, I may now deliberate whether in the whole process the allegation of medical negligence as against the OPs can withstand the test of scrutiny, as alleged. Negligence per se is defined in Black’s Law Dictionary as under:“Negligence per-se : conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.”According to Hulsbury’s Law of England Ed. 4 Vol. 26 pages 17-18, the definition of Negligence is as under:“22. Negligence : Duties owed to patient. A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case : a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient.19. No averment in substance has been made by the complainant that the action of the OPs in administering the treatment suffers from any infirmity or their decision to this effect is coupled with any mala fide. If that be the case the allegation of negligence as against the OPs in this behalf cannot be substantiated. The Hon’ble Apex Courtin the matter of Achutrao Haribhan Khodwa and Ors. v. State of Maharastra and Ors., as reported in 1996 (SLT SOFT) 1000=(1996) 2 SCC 634, is pleased to observe that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable but their Lordships have further observed that if the doctor has taken proper precaution and despite that if the patient does not survive then the Court should be very slow in attributing negligence on the part of the doctor.“A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable.20. In Jacob Mathew’s case as reported in [2008] 6 SCC 1, the Hon’ble Supreme Court observed as under:“78. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. This Court in Jacob Mathew’s case very aptly observed that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.”In Jacob Mathew’s case (supra), conclusions summed up by the Hon’ble Supreme Court are very apt and some portions of which necessary for the adjudication of the case under consideration, are reproduced hereunder:Negligence is the breach of duty caused 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.The definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: Duty, Breach and Resulting Damage.Negligence in the context of medical profession necessarily call 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 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 chosen to follow or resort to that practice or procedure which the accused followed.The standard to be applied for judging, whether the person charge 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.”21. The Hon’ble Supreme Court is pleased to approve the test as laid down in Bolam v. Friern Hospital Management Committee. The relevant principles culled out from the case of Jacob Mathew v. State of Punjab and Anr., as reported in III (2005) CPJ 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=III (2005) CCR 9 (SC)=(2008) 6 SCC 1, read as under:(a) Negligence is the breach of a duty caused 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 prudent and reasonable man would not do, the definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’, ‘breach’, and resulting damage.(a) 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 method of treatment was also available or simple because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.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 practises. A highly skill 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.22. The National Commission in the case of Calcutta Medicare Research Institute v. Bimalesh Chatterjee and Ors. (supra), ruled that “the onus of proving medical negligence and resultant deficiency in service was clearly on the complainant which in the given case remains unsubstantiated.23. There is nothing on record raising objection to the report received from the Maulana Azad Medical College. In this context para 47 of the judgment of the Hon’ble Supreme Court of India in the matter of S.K. Jhujhunwala v. Dharwanti Kaur and Another, as reported in (2019) 2 SCC 282, is referred to, holding as under:It is apt to remember the words of the then Hon’ble Chief Justice of India when his Lordship is pleased to observe in the case of Jacob Mathew v. State of Punjab, as reported in (2005) 6 SCC 1: 2005 SCC(Cri) 1369 which reads as under:“The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untowed event, a tendency which is closely linked with the desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the docto

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r’s contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from considerations. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.”24. Coming back to the facts of the case, the OP-1 and OP-2 had done the treatment without any delay. The doctors attending the complainant was qualified to impart the treatment and prompt in providing treatment. It is not the case of the complainant that an unqualified doctor did the treatment. This is also not the allegation that there was delay in the matter. In this case, even though the complainants have contended that it was a case of res ipsa loquitur, as has been discussed in the preceding paragraphs, it is far from being so. Besides, the complainants themselves having requested this Commission to obtain an expert opinion which goes in favour of the OPs, the only inference that can be drawn from this case is that the OPs have followed the most desirable and expected course of treatment/operation and if in the process the patient does not recover, they cannot be held liable merely on the allegation of the complainants. After all doctors can only treat but cannot guarantee the success of a surgical operation or otherwise which inevitably is fraught with risks. Further the proper assessment and adequate precaution was not taken while taking the patient to the Operation Theatre leading to a situation when the patient had to be taken to Cath Lab, cannot amount to negligence. Infact that leads to a conclusion that the patient was under the constant observation of the treating doctor enabling them to adopt on emergent basis, the required change in the modus operandi. Finally the argument that the OPs are deficient as Dr. Naresh Trehan for whom he had consented for treatment did not attend to the complainant, cannot be stretched beyond a point since there exists no evidence to the contrary. This argument thus fails.25. Having regard to the discussion done and legal position explained I am of the considered view that the negligence as alleged against the treating doctor or OP hospital could not be substantiated and thus the complaint cannot be allowed. Ordered accordingly leaving the parties to bear the cost.Ordered accordingly.A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records.Complaint dismissed.
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