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



Srikanth Srikande & Others v/s Shine Hospitals & Another


Company & Directors' Information:- S V S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TG2007PTC052534

Company & Directors' Information:- D D HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2009PTC073765

Company & Directors' Information:- A AND E HOSPITALS PRIVATE LIMITED [Active] CIN = U85110KL2003PTC016562

Company & Directors' Information:- R R HOSPITALS PRIVATE LIMITED [Active] CIN = U85100HR2011PTC042705

Company & Directors' Information:- K P S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TZ1994PTC004918

Company & Directors' Information:- B R S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN1988PTC016237

Company & Directors' Information:- V H M HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2009PTC073497

Company & Directors' Information:- D B R HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TG2003PTC041648

Company & Directors' Information:- S M R HOSPITALS PVT LTD [Strike Off] CIN = U85110DL2005PTC143152

Company & Directors' Information:- M S R HOSPITALS PRIVATE LIMITED [Active] CIN = U85110AP1994PTC017731

Company & Directors' Information:- M M HOSPITALS PRIVATE LIMITED [Under Process of Striking Off] CIN = U85110UP1993PTC015371

Company & Directors' Information:- K C HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110PB2012PTC035880

Company & Directors' Information:- B M HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2005PTC058062

Company & Directors' Information:- S A HOSPITALS LIMITED [Strike Off] CIN = U85110MH2002PLC136697

Company & Directors' Information:- M. B. HOSPITALS PRIVATE LIMITED [Active] CIN = U85100HR2010PTC041489

Company & Directors' Information:- M G M I HOSPITALS (INDIA) PRIVATE LIMITED [Active] CIN = U85195KA2010PTC052058

Company & Directors' Information:- M AND D HOSPITALS PRIVATE LIMITED [Active] CIN = U85110DL2002PTC117618

Company & Directors' Information:- M. R. HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110UP1995PTC018165

Company & Directors' Information:- S P HOSPITALS PVT LTD [Strike Off] CIN = U85110HP1992PTC012651

Company & Directors' Information:- V K R HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110TG2011PTC075009

Company & Directors' Information:- V P HOSPITALS PRIVATE LIMITED [Active] CIN = U85110DL2011PTC220548

Company & Directors' Information:- G S HOSPITALS PRIVATE LIMITED [Active] CIN = U85100AP2014PTC094902

    C.C. No. 03 of 2014

    Decided On, 12 July 2017

    At, Telangana State Consumer Disputes Redressal Commission Hyderabad

    By, THE HONOURABLE MR. JUSTICE B.N. RAO NALLA
    By, PRESIDENT & THE HONOURABLE MR. PATIL VITHAL RAO
    By, JUDICIAL MEMBER

    For the Complainants: A. Mahadev, Advocate. For the Opposite Parties: K.R. Raman, Advocate.



Judgment Text

Oral Order: (B.N. Rao Nalla, President)

This is a complaint filed under section 17(1)(a)(i) of the Consumer Protection Act, 1986 by the Complainant to direct the opposite parties to pay Rs.1,00,00,000/- towards compensation including the cost of medicines, treatment and the loss of earning by the deceased and also for mental agony along with costs.

2. The case, in brief, as made out in the complaint, is that the complainant no.1 is the father of the complainants’ no.2 and 3 who are his children being minors represented by their father, the complainant no.1. The complainant no.1’s wife by name Rajini Srikande (hereinafter called as the deceased) on 5.5.2013 admitted in the opposite party no.1 hospital due to pain in right flank along with fever and vomiting. After examination it was found that the deceased had calculus measuring 12mm in proximal ureter causing moderate dilation of pelvicalycal system of right kidney. It was also noted that there was protein in urine. At the time of admission her haemoglobin was 9.3gm% and the total WBC count was 26,800 cells/cum as against the normal range of 4-11000 cells/cumm. Therefore the doctors at opposite party no.1 hospital have decided to perform surgery. After pre-operative workup and after pre-anaesthetic check-up she was taken up for right URS+DJ Stenting on 6.8.2013 but unfortunately she died on 7.08.2013 at about 1.45 a.m. as the doctors had not conducted the surgery properly. The allegation of the complainants is that though the deceased insisted for general anaesthesia the doctors had given spinal anaesthesia. The anaesthesia was started at 12.15 p.m. and ended at 12.45 p.m. while the surgery was also started at 12.15 p.m. and ended at 12.45 p.m. It was mentioned in the death summary that cystoscopy plus right URS was done with ureteric catheter which revealed 9 mm right upper ureteric impacted calculus. Calculus tried to puss back. As the calculus is an impacted one right URS done to dis-impact the stone and to place DJ stenting. On dis-impacting the calculus, cloudy and purulent urine was noticed. While performing DJ stenting the patient developed sudden bradycardia with hypotension and had cardiac arrest and hence further procedure abandoned. The contention of the complainant is that the doctors were aware of the risks associated with general anaesthesia for such surgical procedure but it is not known as to how on the suggestion of the patient the doctors could administer general anaesthesia instead of local anaesthesia resulting which Bradycardia with hypotension. The doctors having conducted the scanning of the abdomen prior to surgery and having noted that the renal calculi was impacted and also that there was pus formation, the doctors ought to have done graduated URS instead of total URS. Due to the total URS sepsis developed resulting which septic shock which leads to cardiac arrest. The opposite party no.1 has also been negligent in not properly treating immediately after the deceased developed Bradycardia and hypertension whereby she ultimately died. At the time of the death of the deceased, her age was 36 years and she was employed in HSBC drawing monthly salary of Rs.20,000/-. On account of her premature death, her children who are minors have become destitute and reeling under shock on their mother’s death.

3. The normal life span in the present days is not less than 65 years on an average and had she been alive she would have earned her salary at the rate of average of Rs.25,000/- per month, her income for 30 years would come around Rs.90,00,000/- apart from the medical expenses etc., come to more than Rs.one crore, however, the complainants restricted their claim to Rs.one crore. The complainants got issued legal notice dated 5.12.2013 to the opposite parties to which the opposite parties gave reply dated 31.12.2013 feigning ignorance by disowning their liability. Hence, the complaint with the prayer as stated in paragraph no.1 supra.

4. Opposite parties resisted the case by filing written version and contended that the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine. Local anaesthesia is given to the patients for simple procedures and not for a surgery such as of the deceased. General spinal anaesthesia is administered for abdominal and lower limb surgeries and general anaesthesia for any surgery. Opposite party no.2 and the anaesthesiology team at the opposite party no.1 hospital explained to the deceased that either general anaesthesia or spinal anaesthesia could be given to her and advised spinal anaesthesia as it is a surgery for abdomen. But the deceased opted for general anaesthesia and insisted that she be given general anaesthesia only. Accordingly she was given general anaesthesia. This does not imply that general anaesthesia is not safe. It is an accepted medical practice to administer general anaesthesia or spinal anaesthesia for surgeries throughout the world and generally they are safe. However, a very minimal risk of bradycardia and hypotension is always associated with any kind of anaesthesia. Unfortunately the deceased developed bradycardia and hypotension and died.

5. After pre-operative work up and pre-anaesthetic check-up she was taken up for right URS + DJ stenting on 06.08.2013. Her WBC count pre-operative was 13,500. She was admitted in the hospital in the evening prior to the surgery and started on broad-spectrum antibiotics. Cystoscopy and ureteroscopy revealed that she had ~9mm right upper ureteric impacted calculus. On dis-impacting the calculus, cloud and purulent urine was noticed. It was decided to abandon the stone breaking procedure and to insert a DJ stent instead to clear the infection. While performing DJ stenting unfortunately she developed sudden bradycardia with hypotension and had cardiac arrest. She was immediately shifted to critical care unit and was put on a ventilator and inotropic support. Left radial cannulation was also done. She had wide fluctuations in blood pressure even with inotropic support. The complainant no.1 was apprised of the situation and critical condition of the deceased by opposite party no2. Unfortunately the deceased died. Opposite parties are not guilty of any sort of medical negligence in treating the deceased and therefore not liable to pay any compensation or medical expenses to the complainants. Hence, the opposite parties prayed for dismissal of the complaint.

6. The complainants in proof of their case filed affidavit evidence of the complainant no.1 and filed Exs. A1 to A11. While on behalf of the opposite parties, opposite party no.2 has filed his evidence affidavit and no documents have been filed.

7. The counsel for the Complainants and the opposite parties had advanced their arguments reiterating the contents of the complaint and the written version and affidavit evidence in addition to filing written arguments on behalf of Complainants and the opposite parties. Heard both sides.

8. The points that arise for consideration are :

1) Whether there is negligence or deficiency in service on the part of the opposite parties as alleged in the complaint;

2) If so to what relief the complainant is entitled;

9. The undisputed facts are that the wife of the complainant no.1 i.e., the deceased visited the opposite party no.1 hospital on 5.8.2013 with a complaint of pain in right flank attended with fever and vomiting. After examining the reports of investigations, opposite party no.2 who is an urologist advised the deceased was to be admitted in the hospital for surgical operation. As such the deceased admitted in the hospital on 05.08.2013 for the surgery. The allegation of the complainants is that the opposite party no.2 instead of giving general anesthesia ought to have administered spinal anesthesia to the deceased. It is also the allegation of the complainants that having noted that there was proteinuria the opposite parties ought to have brought the infection under control before conducting surgery.

10. The allegations of negligence levelled against the opposite parties as stated in the written submissions are that local anesthesia is given to the patients for simple procedures and not for a surgery such as of the deceased. Generally spinal anesthesia is administered for abdominal and lower limb surgeries and general anesthesia for any surgery. The deceased opted for general anesthesia and she did not agree for local anesthesia. Opposite parties could not have given spinal anesthesia without the consent of the deceased. Further the opposite party no.2 had explained all risks involved in general anesthesia and the deceased after having understood the same had given written consent for the surgery under general anesthesia. It is next contended by the opposite parties that the indication for DJ stenting is infection and unless DJ stent is inserted, infection cannot be controlled with antibiotics alone in an obstructed kidney. Prior to the surgery prophylactic antibiotics were already started on the deceased.

11. From the accusation leveled by the complainants as indicated above, it is seen the grievance appears to be that the doctors have failed to perform certain acts, or failed to take certain tests, or they should have postponed the surgery. It is not the case they have done any negligent act, medically while performing the surgery. Therefore, only on the allegations that the doctors have failed to do certain things, as if those things are absolutely necessary, or the complainant is the competent person to take decision medically, we cannot affix as of routine, any gross negligent act upon the opposite parties. In this context, we have to remember the broad principles laid down by the National Commission, as well as the Apex Court, under what circumstances the doctors could be held responsible for medical negligence.

12. It is the settled position of law, that it is the bounden duty of the complainants to prove that the doctors, who attended the patient had committed negligence either by commission of certain acts, or by omission, at the first instance, which could be termed as medical negligence. Prima-facie, if a case has been made out by the complainants, as if the opposite parties have committed gross medical negligence, then it is for the opposite parties to make out the case or disprove the allegations leveled against them by the complainant that they have followed the protocol in performing their duty, while assessing and evaluating the problems of the patient, as well in the follow-up action, including pre-operative, and post-operative, since those things are all within their knowledge. To satisfy the first part, the complainant should have let in expert evidence, and in the absence of any expert evidence on behalf of the complainants, as held by the National Commission in a case reported in I (1998) CPJ 110 (NC), it is not possible to conclude that the opposite parties have committed any negligence, merely placing reliance upon the affidavit filed by the complainant no.1, when he is not an expert in the field. In this case, admittedly though the complainants had read so many literatures regarding this subject, he is not an expert in the field, and infact as admitted by him, he has also not consulted on the subject, with any doctor having qualification. Therefore, as rightly submitted by the learned counsel for the opposite parties, merely basing upon the affidavit of the complainant, which is based upon some literature, it is not at all possible, to fix any negligence on the part of the opposite parties, in this case.

13. As decided by the National Commission in Dr.N.T. Subramanyam & Another Vs. Dr.B. Krishna Rao & another, reported in II (1996) CPJ 233 (NC) "The principles regarding medical negligence are well -settled. A doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care. A doctor cannot be found negligent merely because in a matter of opinion he made an error of judgment. It is also well settled that when there are genuinely two responsible schools of thought about management of a clinical situation the Court could do no greater disservice to the community or the advancement of medical science than to place the hallmark of legality upon one form of treatment."

14. In Smt. Vinitha Ashok Vs. Lakshmi Hospital and others, in CA No.2977/1992, the Apex Court has ruled that Doctors will not be guilty of negligence if they followed practice accepted as proper by responsible body of medical men, skill in that particular field." Therefore for the non-performance of certain act, which the complainant thought, if it had done, would have been better or would have yielded better result, cannot be the reason and could not be the reason also to fix culpability of negligence on the opposite parties, which is also reiterated by the Supreme Court in Martin F.D'Souza Vs. Ishfaq reported in (2009) 3 Supreme Court Cases 1. Their Lordships of the Supreme Court, considering various decisions rendered even by the Apex Court of this land, as well as the decisions rendered by some foreign courts also, have recorded, mostly relying upon the principles laid down in Jacob Mathew Case, which reads as:

"The professional is one who professes to have some special skill. A professional impliedly assures the person dealing with him (i) that skill shall be exercised with reasonable care and caution. Judged by this standard, the professional may be held liable for negligence on the ground that he was not possessed of the requisite skill which he professes to have".

15. It is also recorded by the Apex Court that "A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. From the above observation of the Hon'ble Supreme Court, it is seen that accusing the opposite parties, as if they have not followed certain procedures or they have not conducted certain tests, which are essential, according to the complainant, cannot be taken, as the ground as to affix the seal of negligence.

16. In "Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors., reported in "2009 4 Law Weekly Part 1, the Hon'ble Supreme Court has observed based upon the previous decision, 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 judgement 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 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. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. Therefore, we have to see while performing their duties, whether the opposite parties have committed any mistake or in other words, whether they have not followed the standard protocol while treating this kind of disease, which resulted in the termination of the life of complainant's wife. In this context, we have to see the evidence adduced on behalf of the parties.

17. The complainant no.1 in his proof affidavit, reiterating the allegations in the complaint, based upon certain literatures, had attempted to find fault, in the procedure adopted by the opposite parties. It is the specific case of the opposite parties, that generally spinal anesthesia is administered for abdominal and lower limb surgeries and general anesthesia for any surgery. Opposite party no. 2 and the anesthesialogy team at opposite party no.1 hospital explained to the deceased that either general anesthesia or spinal anesthesia could be given to her and advised spinal anesthesia as it is a surgery for abdomen. But the deceased opted for general anesthesia and insisted that she be given general anesthesia only. Accordingly she was given general anesthesia. This does not imply that general anesthesia is not safe. It is an accepted medical practice to administer general anesthesia or spinal anesthesia for surgeries throughout the world and generally they are safe. However, a very minimal risk of bradycardia and hypotension is always associates with any kind of anesthesia. Unfortunately the diseased developed bradycardia and hypotension and died. Moreover the deceased having understood about the risks involved in administering the general anesthesia or spinal anesthesia had given consent for the surgery under general anesthesia. Ex.A3 is the copy of consent form wherein the deceased had given her consent for administering the general anesthesia. It was also written on the consent form that patient insisted for General Anesthesia in spite of explaining the advantages and post-operative analgesia of spinal anesthesia. Therefore, it is apparent on the face of the record that there is no negligence on the part of the opposite parties in administering the general anesthesia to the deceased. It is on the insistence of the deceased only the opposite parties had administered general anesthesia though the opposite parties explained about the advantages of administering spinal anesthesia.

18. In support of their contention the opposite parties filed some excerpts printed in the book of ' Anaesthetic Complications in Urologic Surgery' by Mr.George T.Vaida, MD and Mr.Sudheer K.Jain, MD in Section 1 at page 60 of the said book reads as :

Procedure-specific indications

Because most urologic procedures are performed in an anatomic area primarily innervated by thoracolumbar and sacral nerve supply, these procedures are excellent candidates for regional anaesthesia and nerve blocks. The greatest versatility of regional anaesthesia relies on the fact that, if skilfully done, it can generally preserve pulmonary and cardiovascular functions in all patients. This gives maximum benefit or those with severe comorbidities. Major contraindications for regional anaesthesia are patient refusal, skin infections, sepsis, cardiac outflow tract obstruction (aortic stenosis, idiopathic hypertrophic sub aortic stenosis (IHSS), serious previous neurologic deficiencies, anticoagulation, shock, hypotension or allergies to local anaesthesia

(emphasis supplied)

19. It is therefore clear from the above that the opposite parties administered general anaesthesia on the insistence of the deceased and after taking her consent on the consent form. It is also an accepted medical practice to administer general anaesthesia or spinal anaesthesia for surgeries throughout the world. Hence, we find no negligence on the part of the opposite parties in administering general anaesthesia to the deceased.

20. The counsel for the complainant next contended that though the opposite parties noted there was proteinurea from the urine but they instead of bringing the infection under control proceeded for surgery.

21. It is to be seen that in patients who have, or might have an obstruction (blockage) of the kidney, an internal drainage tube called a 'stent' is commonly placed in the ureter, the tube between the kidney and the bladder. This is placed there in order to prevent temporarily the obstruction. Common causes of obstruction of the kidneys and ureter are, kidney stone or its fragments moving into the ureter, either spontaneously, or occasionally following such treatment as shock wave therapy. Whenever there is an obstruction, pressure builds up behind the kidney. Due to high pressure, the function of the kidneys starts to suffer over a period of weeks. The obstruction can also cause stagnation of the urine, which can lead to infection and further damage the kidneys. It is, therefore, important to prevent obstruction of the kidney. It is not always possible to identify what has caused an obstruction and to treat this immediately. It is therefore essential to relieve the obstruction on a temporary basis, before treatment is carried out. Also, following an operation on the ureters, it takes time to heal and a temporary measure to prevent obstruction becomes essential. This is commonly achieved by inserting a ureteric stent to make a channel for the urine to pass and allow the kidney to drain. Temporarily, following an operation or after an instrument has been inserted into the ureter and kidneys. .

22. A ureteric stent is a thin hollow plastic tube inserted into your kidney. It allows urine to drain from the kidney into your bladder when you have a blockage in your ureter (the narrow, muscular tube that connects your kidney to your bladder). The blockage is most commonly caused by a kidney stone but could be caused by a growth. The blockage in your ureter will be relieved, allowing urine to drain from the kidney into the bladder. Without the stent, the blockage may cause the kidney to work less well and in some cases, stop the kidney from working altogether. The procedure is very safe and you will recover quickly. Having a stent will help prevent infection and permanent damage to your kidney.

23. Therefore, it is an accepted medical surgical practice which necessitated during surgery to remove accumulated infected urine. Even the opposite parties prior to the surgery started prophylactic antibiotics on the deceased. The patient initial assessment, Consent Form, operative notes and progress record/doctor’s orders were in accordance with the death summary. The procedures adopted are noted in the operative notes. It is not the case before us, that the particulars noted therein are incorrect, and in fact pointing out any wrong, no argument was also advanced as if those entries are false, or the procedure noted therein are unnecessary or it is the deviation of the procedure, contemplated under the standard text, in respect of the Ureteroscopic Lithotripsy + Double J Stenting. Therefore, accepting the operation notes, as well the death summary, we have to say empathetically, that the alleged negligence, on the part of the opposite parties is baseless.

24. It is the further submission of the complainant, as per the medical literature if the patient had hydronephrosis the kidney stone might be removed with endoscopic surgery which uses tiny instruments to perform the procedure. They also submitted that the deceased died due to cardio respiratory arrest second to sepsis and septic shock. According to the medical literature sepsis causes tiny blood clots to form which can block oxygen and nutrients from reaching vital organs as a result the organs fail causing a profound septic shock this may cause a block in blood pressure and may result in death. The complainants further submitted that sepsis commonly originate from urinary tract infection and other causes. So on account of UTI the patient developed sepsis which resulted in septic shock and ultimately patient died due to cardio respiratory arrest. The patients with impacted calculus in ureter would have hydronephrosis, UTI, RBC and protein in urine. In cases of stone impaction, ureteroscopy DJ stenting has to be performed as the calculus does not allow the proper DJ stent placement. In case this fails, only then nephrostomy is performed. A nephrostomy is an artificial opening created between the kidney and the skin which allows the urinary diversion directly from the upper part of the urinary system.

25. Though the complainants in their written arguments mentioned so many things about the medical surgical procedure but they have not filed any evidence to prove that the surgical procedure adopted by the opposite parties was not an accepted surgical procedure. The so called medical literature which the complainants relied upon is not clear about the standard surgical procedure and the treatment on which they relied and they also not mentioned the name of the book and its authors. Therefore, under the hypothesis or imagination, it is not safe to conclude, if the surgery has not been done, the patient would have survived, thereby affixing the seal of negligence upon the opposite parties, who advised or had taken the decision to perform surgery for removing the kidney stone. There is no expert evidence also, to establish that the procedure adopted by the opposite parties is not correct. Therefore, it is meaningless on the part of the complainants, to contend that an unwarranted surgery has been done before bringing the infection under control and if that surgery had not been done, the complainant’ no.1 wife would have lived for some more years.

26. The learned counsel for the opposite parties has relied on the decision of the Hon’ble Supreme Court in the case of Dr.C.P.Sreekumar, M.S.(Ortho) vs S.Ramanujam reported in 2009 (5) ALD 93 (SC) wherein the Supreme Court has held:

16. Admittedly the respondent had suffered a simple Garden Type I hairline fracture in the course of the accident on 31st December 1991 and after he had been examined by the appellant on that day, his leg had been immobilized with the help of derotation boots. It is the case of the respondent that when he was taken for an X-ray on 8th January 1992 it was found that the simple Garden I type fracture had developed into a complicated Garden III type fracture, and that this happened on account of rough handling by Elango and the other attendants who were mere labourers whereas it is the case of the appellant that this had occurred due to a muscular spasm. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew's case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.

(emphasis supplied)

27. While relying on the above judgment the opposite parties further contended that there was no allegation on the opposite party no.2 that he was not competent to do surgery or failed to take reasonable care and relied in para 10 of the above judgment wherein the Hon’ble Supreme Court has held:

10. The basic principles under which a case of medical negligence as a criminal offence as also a tort has to be evaluated has been succinctly laid down in Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1. One of the primary arguments raised by the respondent herein is that the appellant Dr. C. P. Sreekumar, though qualified in Orthopedics, did not have the basic skill to carry out a hemiarthroplasty or an internal fixation and for that reason was not competent to perform the procedure. In Jacob Mathew's case, this Court adopted the test laid down in Bolam vs. Friern Hospital Management Committee (1957) 2 All ER 118 (QBD) in which it has been observed as under :

"[W]here you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and profession to have that special skill. A man need not possess the highest expert skill...It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."

11. This Court then observed that this judgment had been followed repeatedly not only in India but in other jurisdictions as well and that it was the statement of law as commonly understood today. In paragraphs 24 and 32 of Jacob Mathew's case it has been observed thus:

"The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was no

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t generally available at that point of time on which it is suggested as should have been used. 32. At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are: (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation, the person holding the "smoking gun". 12. These observations postulate the underlying principle that too much suspicion about the negligence of attending Doctors and frequent interference by Courts would be a very dangerous proposition as it would prevent Doctors from taking decisions which could result in complications and in this situation the patient would be the ultimate sufferer. Jacob Mathew's case was followed in State of Punjab v. Shiv Ram & Ors. (2005) 7 SCC 1 which was a case of a failed tubectomy leading to a plea of medical negligence. This is what this Court had to say in paragraph 33: "A Doctor, in essence, needs to be inventive and has to take snap decisions especially in the course of performing surgery when some unexpected problems crop up or complication sets in. If the medical profession, as a whole, is hemmed in by threat of action, criminal and civil, the consequence will be loss to the patients. No doctor would take a risk, a justifiable risk in the circumstances of a given case, and try to save his patient from a complicated disease or in the face of an unexpected problem that confronts him during the treatment or the surgery. It is in this background that this Court has cautioned that the setting in motion of the criminal law against the medical profession should be done cautiously and on the basis of reasonably sure grounds. In criminal prosecutions or claims in tort, the burden always rests with the prosecution or the claimant. No doubt, in a given case, a doctor may be obliged to explain his conduct depending on the evidence adduced by the prosecution or by the claimant. That position does not change merely because of the caution advocated in Jacob Mathew in fixing liability for negligence, on doctors." (emphasis supplied) 28. Therefore, we do not find, any reason, in the absence of any other satisfactory evidence, to disbelieve the case of the opposite parties, as if they have not administered spinal anesthesia and bring down the infection before surgery, as fallacious, and against truth. 29. The complainant no.1 having lost his wife, unable to control himself, probably as an ordinary man, attempted to find fault in the treatment given by the opposite parties, with which we are unable to agree. For the reasons stated above, the complainants have miserably failed to prove any negligence against the opposite parties, and for the death of the complainant no.1's wife, none could be blamed, except destiny. Hence, point No.1 is answered accordingly. In the result, the complaint is dismissed, but in the facts and circumstances of the case, we direct the parties to bear their respective costs.
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