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



Tondapu Hanumantha Rao & Others v/s Yashoda Hospitals & Others


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    F.A.Nos. 25, 26 of 2015 Against C.C.No. 667 of 2012

    Decided On, 05 June 2018

    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 Appellant: M/s G.Venugopal Rao, Advocate. For the Respondent: R1 & R2, M/s Duggaraju Srinivasa Rao, R3, M/s. KRR Associates, Advocates.



Judgment Text

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

These cross-appeals, one preferred by the opposite party no.1 vide FA No.26 of 2015 aggrieved by the order of the District Forum in directing the appellant/opposite party no.1 to pay Rs.13 lakhs with costs of Rs.3,000/- to the complainant within one month failing which the said amount of Rs.13 lakhs shall carry interest @ 9% per annum while the complainant preferred appeal FA No.25 of 2015 dissatisfied with the order passed by the District Forum.

2. Since both parties have preferred appeals we describe the parties as arrayed in the original complaint before the Dist. Forum for felicity of expression, and are disposed of by this common order :

3. For the sake of convenience, the parties are referred to as arrayed in the complaint.

4. The case of the complainant in brief is that the complainants are the parents of T.G.L. Venkateswarlu who was suffering from vomiting and motions approached Dr. P.Venubabu at ECIL dispensary who controlled the symptoms but advised him to consult Yashoda Hospital for further better treatment. He then consulted Dr. Somanath & Dr. Ram Mohan, Physicians who advised investigations and inferred that Mr. Venkateswarlu was suffering from 'Coarctation of Aorta Secondary Hypertension.' He was advised surgical intervention and on 04.09.2007 at about 8-00 a.m., Cardio thoracic surgeon of Yashoda Hospital conducted the surgery. Subsequently, on 05.09.2007 the complainants were informed that the condition of their son was serious, as he collapsed with sudden cough and the B.P. fell to 30 /10. He was then taken back to the operation theatre and the case record reveals that '1 to 2 first clot removed end to end anastamosis site of Aorta it was bleeding at two sites and therefore again applied sutures.' The complainant alleged that the opposite party hospital failed to reveal the health condition of his son and that there was negligence on the part of the doctors at the hospital in treating the patient. In the early hours of 07.09.2007 the patient was declared dead. The complainant submits that the father of the deceased is a conductor at APSRTC and he lost his son who was a meritorious student and M.B.A. graduate due to the negligence of the opposite party No.1. It is alleged that the hospital authorities kept the parents in dark with regard to the status of their son postoperative and insisted on deposit of a sum of Rs.1,50,000/- towards hospital expenses. The complainants got issued a legal notice dated 16.04.2010 demanding damages of Rs.13,00,000/- for which reply notice was received denying their liability and suppressing the real facts of death. Hence, the complaint praying to direct the opposite parties jointly and severally for payment of damages of Rs.13,00,000/- with interest @ 12% per annum from the date of death along with costs.

5. The opposite party no.1 resisted the case contending that the complainants’ son underwent surgery at Yashoda Hospitals for 'Coarctation of Aorta Secondary Hypertension.' The approach was through left thoracotomy. There was a post dectal coartation of the aorta with post stenotic dilatation. The stenosed part was excised and end to end anastomosis was done with C.V.5 goretex sutures. The patient was shifted to the intensive care unit. The condition of the patient was stable and he was weaved off the ventilator by maintaining good hemodynamic. At about 4-05 a.m., on 05.09.2007 the patient had severe cough and consequently his blood pressure shot up. One of the sutures was cut through and he had a sudden massive bleed with hypotension and developed cardiac arrest although the surgery was concluded successfully on 04.09.2007. It is also admitted that the patient was taken up for re-exploration on 05.09.2007 and the bleeding point at the suture line was identified and controlled by resuturing. Haemodynamic stability was achieved peripheral pulses was not felt but Carotid pulses was not awake and there was no urine output. The Neurologist and Nephrologist’s attended upon him and peritoneal dialysis was started on 06.09.2007. It is submitted that inspite of their best efforts the patient developed severe hypotension on 07.09.2007 and died at 9-45 a.m., due to cardiac arrest. It is contended that patient was suitable to undergo surgery on 04.09.2007 but it could not be anticipated that there would be sudden change in the condition of the patient with regard to cough. Hence, the opposite party no.1 prayed for dismissal of the complaint.

6. The opposite party no.2 equally resisted the case contending that the opposite party No.1 obtained a professional indemnity policy from the National Insurance Co., Ltd., which was valid from 31.05.2007 to the mid night of 30.05.2008. As per the policy terms and conditions there is a compulsory excess of Rs.30,000/- i.e., 0.25% of limit of indemnity for one year subject to a minimum of Rs.1,000/- and maximum of Rs.1,00,000/-. It is further submitted that the policy covers the insured hospital and technicians employed by them and in the event of any professional negligence attributable to the treating doctor it falls within the purview of a separate doctor’s indemnity policy and not in the present medical establishment policy. It is submitted that as per extended claim reporting clause of policy condition 5 (b), claims if any has to be intimated within 90 days of expiry of latest policy i.e., Policy No.551703/4608/8700000022 herein, which is valid up to 30.05.2009 only, and the insured not renewed the policy thereafter. But the subject case was filed during the 2012, and the same was intimated in February 2013 to respondent company (while there is no policy in force), which is beyond the period of 90 days from 30.05.2009. As such we are not liable as per Extended Claim Reporting Clause (Retroactive Clause) under policy condition No: 5(b). Hence, we re-iterate that the respondent company is not liable to pay the alleged claim as per this extended claim reporting clause (retroactive clause) keeping in view the elapse of time as there is no policy in force as on date of filing / reporting. There is no privity of the contract between the complainant and the opposite party No.2 and as such it prayed for dismissal of the complaint.

7. In proof of the case of the complainants, the complainant no.1 has filed his evidence affidavit and got marked Exs.A1 to A15. On behalf of the opposite party no.1, the Medical Administrator has filed his evidence affidavit and got marked Exs.B4 to B7 while on behalf of the opposite party no.2, the Deputy Manager has filed his evidence affidavit and got marked Exs.B1 to B3.

8. The District Forum after considering the material available on record, allowed the complaint bearing CC No.667 of 2012 by orders dated 13.01.2015 as stated in paragraph No.1, supra.

9. Aggrieved by the said decision, the opposite party no.1 preferred the appeal FA 26 of 2015 contending that the Dist. Forum did not appreciate the facts in correct perspective. It contended that the District Forum failed to consider the medical literature provided with about the known complications that may occur before, during or soon after surgery. The disease Coaractation of Aorta Secondary Hypertension is a Congenital Heart Disease by birth. The surgery will be conducted only when the body parameters i.e., temperature, BP and blood picture are normal prior to surgery. During surgery the narrowed part of the aorta will be removed or opened and if the problem area is small the two free ends of the aorta may be re-connected and it is called an end to end anastomosis. The District Forum had wrongly observed that there have been no notings for the intervening period from after surgery until early hours of 05.09.2007. The District Forum wrongly applied the principles of Res Ipsa Loquitor. In support of its case the counsel for the opposite partyno.1 relied upon the following decisions:

1. Dr.Laxman balakrishna Vs Dr.Trimbak, AIR 1969 SC 128

2. Sethuram Subramaniam Vs Triveni Nursing Home & Anr, 1998 CTJ7 (NC)

3. Martin F.D. 'Souza Vs Mohd. Ishfaq, Civil Appeal No.3541 decided on 17.2.2009

4. Jacob Mathew vs State of Punjab Anr (2005) 6 SCC 1

10. Hence, the opposite party no.1 prayed to allow the appeal by setting aside the order of the District Forum.

11. Dissatisfied with the order of the District Forum the complainant filed FA No.25 of 2015 contending that the District Forum granted interest only @ 9% per annum if the opposite party no.1 failed to comply the order within one month. The District Forum ought to have granted interest @ 12% per annum from the date of death of the deceased son. Hence, the complainant prayed to allow the appeal as prayed for.

12. No representation for the appellant and the respondents. Written arguments of the both parties have been filed.

13. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief?

14. It is an admitted fact that the complainant’s son Mr. Venkateswarlu approached Yashoda Hospital on 03.09.2007 as he suffered with vomitings and motions and upon investigations and a provisional diagnosis was arrived at 'Coarctation of Aorta Secondary Hypertension' and was advised to undergo surgical repair of 'Coarctation of Aorta on 04.09.2007. Subsequently, surgery was conducted successfully and the complainant was kept under observation.

15. The case of the complainants is that on 05.09.2007 at about 4.05 a.m., the patient had fell into collapse with sudden cough and BP 30/10 with pulseless. As seen from the case record one to two first clot removed end to end anastomosis site of Aorta was bleeding at two sides and again applied sutures. The main thrust of the complainants is that intentionally the opposite party not revealed the original health condition of the son of the complainants as there was negligence on the part of the hospital doctors in treating the patient. Finally on 07.09.2007 at about 9.15 .am., when the patient was in the ICU the hospital authorities informed the complainants that their son was expired and to that effect a death certificate was issued. The further case of the complainants is that had the surgery been conducted with more care while suturing, the excessive bleeding could have been avoided and that due to the negligence of the opposite parties the complainants lost their young son.

16. On the other hand the opposite party no.1 contended that the final diagnosis recorded in the case sheet states Congenital Heart Disease, Coarction of Aorta in the clinical history which reveals that it is a case of Coarction of Aorta with severe Hypertension got admitted surgery. The son of the complailnants before approaching the opposite party no.1 had taken treatment for vomitings and motions in ECIL dispensary and when the same was not controlled they approached the opposite party no.1. After diagnosing the problem of the patient the doctors at opposite party no.1 came to conclusion that the patient was suitable to undergo the surgery for the said disease. The health condition of the patient was well explained to the attendants of the patient, the line of treatment and procedure of the surgery etc., which are recorded in the case sheets. While so on 05.09.2014 at around 4.05 a.m. with sudden bout cough patient suddenly went into collapse his BP recorded was 30/10 pulseless, fullness in chest Spo2 65% hence immediately cardippulmonary resuscitation was done, patient intubated put on ventilator and necessary medicines were administered and the same was recorded in Ex.A1. The re-exploration notes were recorded as ' left thoracotomy opened, 300-400 blood aspirated, one to two first clot removed, end to end anastomosis site of aorta was bleeding at two sites, sutured 3-o prolene, hemostasis achieved, meanwhile 15-25 minutes intra thoracic (open) cardiac massage was given, HR was 124/min, BP increased to 106/56 ECG-junctional rhythm, ABG-Bleeding was controlled, multiple blood transfusion was given'. Post operatively patient was not awake and there was no urine output, Nephrology consultation was under taken and appropriate medication was started. In view of falling urine output, Nephroligist’s advice was taken and as per the advice on 06.09.2007 peritoneal dialysis was started as the serum potassium level was raising up. The patient was put oninotropic support with adrenaline dopamine and vasopressin. Injection Octorotide was started as there was dark brown aspiratic was coming through Ryle’s tube and it was aspirated. Inspite of best efforts by the doctors of the opposite party no.1 hospital, the condition of the patient started deteriorating from the night of 06.09.2007. Inotropic support was increased. Inspite of all the efforts done by the doctors of the opposite party no.1, the patient developed severe hypotension at 9.45 .am., followed by cardiac arrest and patient expired. The doctors of the opposite party no.1 had given best possible treatment and hence the hospital and the doctors are not responsible for the death of the patient.

17. After going through the contentions of both parties first of all we have to know what is Coarctation of the Aorta, its causes, treatment and complications after the surgery. As per National Institute of Health, US National Library of Medicine the Coarctation of the Aorta was explained as follows:

Coarctation of the aorta

The aorta carries blood from the heart to the vessels that supply the body with blood. If part of the aorta is narrowed, it is hard for blood to pass through the artery. This is called coarctation of the aorta. It is a type of birth defect.

Causes

The exact cause of coarctation of the aorta is unknown. It results from abnormalities in development of the aorta prior to birth.

Aortic coarctation is more common in persons with certain genetic disorders, such as Turner syndrome. Aortic coarctation is one of the more common heart conditions that are present at birth (congenital heart defects). It is most often diagnosed in children or adults under age 40.

People who have this problem with their aorta may also have a weak area in the wall of blood vessels in their brain. This weakness causes the blood vessel to bulge or balloon out. They can increase the risk for stroke. Coarctation of the aorta may be seen with other congenital heart defects, such as:

Bicuspid aortic valve

Defects in which only one ventricle is present

Ventricular septal defect

Symptoms

Symptoms depend on how much blood can flow through the artery. Other heart defects may also play a role. About half of newborns with this problem will have symptoms in the first few days of life. These can include breathing fast, problems eating, increased irritability, and increased sleepiness or becoming poorly responsive. In milder cases, symptoms may not develop until the child has reached adolescence. Symptoms include:

Chest pain

Cold feet or legs

Dizziness or fainting

Decreased ability to exercise

Failure to thrive

Leg cramps with exercise

Nosebleed

Poor growth

Pounding headache

Shortness of breath

There may also be no symptoms.

Treatment

Most newborns with symptoms will have surgery either right after birth or soon afterward. They will first receive medicines to stabilize them. Children who are diagnosed when they are older will also need surgery. In most cases, the symptoms are not as severe, so more time can be taken to plan for surgery. During surgery, the narrowed part of the aorta will be removed or opened. If the problem area is small, the two free ends of the aorta may be re-connected. This is called an end-to-end anastomosis. If a large part of the aorta is removed, a graft or one of the patient's own arteries may be used to fill the gap. The graft may be man-made or from a cadaver. Sometimes, doctors will try to stretch open the narrowed part of the aorta by using a balloon that is widened inside the blood vessel. This type of procedure is called a balloon angioplasty. It may be done instead of surgery, but it has a higher rate of failure. Older children usually need medicines to treat high blood pressure after surgery. Some will need lifelong treatment for this problem.

Outlook (Prognosis)

Coarctation of the aorta can be cured with surgery. Symptoms quickly get better after surgery. However, there is an increased risk for death due to heart problems among those who have had their aorta repaired. Lifelong follow-up with a cardiologist is encouraged. Without treatment, most people die before age 40. For this reason, doctors most often recommend that the patient has surgery before age 10. Most of the time, surgery to fix the coarctation is done during infancy. Narrowing or coarctation of the artery can return after surgery. This is more likely in persons who had surgery as a newborn.

Possible Complications

Complications that may occur before, during, or soon after surgery include:

An area of the aorta becomes very large or balloons out

Tear in the wall of the aorta

Rupture of the aorta

Bleeding in the brain

Early development of coronary artery disease (CAD)

Endocarditis (infection in the heart)

Heart failure

Hoarseness

Kidney problems

Paralysis of the lower half of the body (a rare complication of surgery to repair coarctation)

Severe high blood pressure,

Stroke

Long-term complications include:

Continued or repeated narrowing of the aorta

Endocarditis

High blood pressure

Prevention

There is no known way to prevent this disorder. However, being aware of your risk may lead to early diagnosis and treatment.

18. In the book titling "Medical Negligence" written by Shri S.P. Tyagi (Edition 2004) Reprint 2008, it has been mentioned at Page No.64, 65, 66, 67 and 68 regarding Medical Negligence, Classification of medical negligence or mistakes. It runs thus :- "What is Medical negligence The term medical negligence is nowhere defined in any Code or Act. No legislature, has so far, made any attempt to define it. Even the medico- legal jurists have not come forward to provide a specific meaning to this express.

19. 'Medical negligence' is always an outcome of doctor patient inter se conduct and relationship, which lacks uniformity. The issue of medical negligence is a complicated one as medical professionals deal with human body. They do not deal with the machine. Human body is not a mere composition of bones and flesh. It is susceptible to emotions also. Response of medicinal treatment varies from patient to patient. This phenomenon is also applicable to recovery aspect. Further recovery aspect is not solely dependent upon the appropriateness of treatment provided by the doctor. Response or recovery of a patient also depends on his individual anatomy and physiology. Possibility cannot be ruled out that a drug may be effective in case of one patient, it may not be effective in second and may cause reaction in third. Medico Legal experience also establishes that there exist inherent risk in every treatment, medicinal or surgical. Further possibility of unforeseen mishap may not be ruled out. Even the medicinal literature provides for failure rates particularly in surgery. 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 more than one course of treatment which may be advisable for treating a patient. Medical opinion may differ with regard to the course of action adopted by a doctor treating a patient.

20. Further the concept of medical negligence may be studied with reference to the extent of approach of a medical professional towards three under mentioned concepts, which generally work as guidelines to determine the factum of medical negligence or otherwise in a particular case.

(1) Duty of care in accepting the patient for treatment.

(2) Duty of care in providing appropriate treatment.

(3) Breach of duty or commission of negligence in any of them and damage cause by such breach.

21. In other words, medical negligence is result of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties. Broadly speaking medical negligence means negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in vogue, which are being practiced by an ordinary and reasonably competent man, practicing on the same branch of medicine or surgery.

22. Classification of medical negligence or mistakes. Negligence in medical care may broadly be classified into four categories :-

(1) Medical negligence at the level of doctors / paramedical staff / hospital authorities. Liability for negligence may be fixed at individual level and / or jointly or vicariously where hospitals nursing homes are involved.

(2) Negligence at the level of patient himself or his attendants also known as contributory negligence.

(3) Negligence at the level of manufacturers of drugs, equipment etc. and dispensers.

(4) Composite negligence i.e. at more than one of the above 3 levels.

Negligence of first category may further be sub-classified into two categories viz.

(i) Individual liability of a medical professional.

(ii) Vicarious liability of an individual doctor or hospital for the Medical negligence may also be classified as under :

1. Medical mistakes.

2. Clinical negligence.

3. Surgical mistakes

4. Misplaced injection."

23. In the instant case, the opposite party no.1 explained the entire process of surgery, complication which had arisen and the effort to overcome from the said complications. It appears that the doctors at opposite party no.1 have done what they have to do. The complainants except alleging that the doctors intentionally not revealed the original health condition of the son of the complainants did not specifically state that due to the surgery or post-operative care complications occurred. They also alleged that the main reason for the collapse of the patient was due to cough and that there is medical negligence on the part of the opposite party no.1. They failed to establish that the doctors at opposite party no.1 did not follow normal standards of medical parlance or that due to negligent surgery there was cough resulting deterioration of health of the patient and ultimately lead to death of the patient, we are of the considered view that opposite party no.1 had followed the procedure of normal medical parlance and no negligence can be attributed to it.

24. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128 (V 56 C 27), Hon'ble Supreme Court has observed thus :-

"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 : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."

25. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-

'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:

(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs // 15 // 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 & 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'.

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.

(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially 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 expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is 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 unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals 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."

26. In Dr. Sanjay Gadekar Suprathet Hospital and Surgical Research Institute Ltd. Vs. Sangamitra @ Sandhya Khobragade, 2016 (3) CPR 270 (NC), Hon'ble National Commission has observed thus :-

"11 In this context we place reliance upon few judgments of Hon'ble Supreme Court. In Jacob Mathews Case (2005) 6 SCC 1, it was observed by Hon'ble Supreme Court as :

"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."

27. In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, the Hon'ble Supreme Court held that :

"in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as he is performing his duties to the best of his ability and with due care and caution. 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."

28. The Hon'ble Supreme Court in the case Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others (2010) 3 SCC 480; the bench comprising Hon'ble Justices Dalveer Bhandari and H.S. Bedi while dismissing the complaint held that :

"Consumer Protection Act, (CPA) should not be a "halter round the neck" of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death." ... ... ... xxxxx......

29. It further observed as, "It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish."

30. In Hucks v. Cole & Anr (1968) 118 New LJ 469, Lord Denning speaking for the Court, observed as under :

"a medical practitioner was not to be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner, in his field."

31. In Smt. Tilat Chaudhary & Anr. Vs. All India Institute of Medical Sciences & Anr. 2012 (4) CPR 565 (NC); Hon'ble National Commission has observed that

"Laparoscopic Cholecystectomy for removal of stones in Gall Bladder. Injury to Bile Duct during operation. CBD injury was caused and detected during Laparoscopic dissection procedure and said procedure was converted into open cholecystectomy to rectify complication.

CBD injury is a well-known complication of laparoscopic cholecystectomy procedure and frequency of such complications has increased with advent of laparoscopic cholecystectomy. Incidence of CBD injury is a well-known risk when a patient undergoes a laparoscopic cholecystectomy procedure. Same cannot be correlated as act of negligence or carelessness on part of operating surgeon. Merely because laparoscopic cholecystectomy had to be converted to open cholecystectomy procedure, it cannot be said that laparoscopic cholecystectomy procedure adopted by surgeon was counter indicative. Once it is shown that due medical protocol was followed, no case of medical negligence is made out against opposite parties. Complainants have failed to establish their case about medical negligence and/or deficiency in service against opposite parties."

32. The skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the complainant to prove that doctor was negligent in the line of treatment that resulted in the loss of life of the patient.

33. In A.K. Vishwakarma (Dr.) Vs. Kiran Sinha & Anr. and Kiran Sinha Vs. A.K. Vishwakarma (Dr.), II (2016) CPJ 204 (NC); Hon'ble National Commission has observed thus :-

"22. What constitutes medical negligence is well settled through a catena of decisions of the Hon'ble Supreme Court, including in Jacob Mathew v. State of Punjab & Anr., III(2005) CPJ 9 (SC) = VI (2005) SLT 1 = 122 (2005) DLT 83 (SC) = III (2005) CCR 9 (SC) = (2005) 6 SCC 1, a three-Judge Bench decision, Indian Medical Association v. V.P. Shantha and Others., III (1995) CPJ 1 (SC) = 1995 (SLT Soft) 561 = (1995) 6 SCC 651. Noted from these judgments, the broad principles to determine what constitutes medical negligence, inter alia, are : (i) Whether the doctor in question possessed the medical skills expected to an ordinary skilled practitioner in the field at that point of time; and (ii) Whether the doctor adopted the practice (of clinical observation diagnosis - including diagnostic tests // 22 // and treatment) in the case that is accepted as proper by a responsible body of professional practitioners in the field. In this connection, in Jacob Mathew (supra), the three-Judge Bench, elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury's Laws of England (4th Edn., Vol. 30, para 35) as follows :-

"35. 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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way..."

25. The State Commission seems to have presumed that the stone was in the kidney and that a stone of its size could not have passed out with urine in the natural process. The Medical Literature and the expert opinion clearly evidenced that the stone was in the CBD and it could have passed out naturally and that the patient had a history of cholecystectomy in the year 1997 and with all the tough adhesions, it may not be possible to detect any shadow or lesion in the pancreas and therefore, viewed from any angle, we do not see any negligence on behalf of the Radiologist in analysing the USG. The Petitioner / Complainant also could not establish any negligence on behalf of the Treating Surgeon. We observe from the record that he was impleaded in the second round of litigation but there was no amendment in the pleadings and no specific allegation as to what ought to have been done by the Treating Surgeon which was not done as per the standards of normal medical parlance. Therefore, we conclude that the patient failed to prove any negligence against either of the Doctors."

34. It is pertinent to note that the complainants have not made the doctors who conducted the surgery as a party to the proceedings. From the record it is to be seen that the doctor A.Ram Mohan, MS DNB(CVTS) and also HOD & Consultant, Cardio Thoracil Surgeon and also Dr.M.Sudhakar Rao, M.S.; M.Ch, Cardio Thoracic Surgeon are expert surgeons. The complainants have not filed any material to prove that both the doctors are not experts in their field. The complainant has filed Death Summary issued by opposite party no.1 in which the names of Dr.A.Ram Mohan and Dr.M.Sudhakar Rao, are mentioned. In the instant case, the complainants failed to examine the said doctors before the District Forum in order to elicit any negligence from them . The onus of proving alleged negligence in treatment of patient lies with person, who alleged medical negligence. In the instant case, the complainants did not file any document to prove that due to negligent surgery or post-operative care the patient developed cough or complications that had occurred. Doctors are only responsible for medical negligence if they failed to exercise reasonable care of patient expected from them. Mere unsuccessful treatment does not imply medical negligence.

35. It is well settled principle of law that the degree of proof needed in the case of medical negligence than that of other cases of negligence is altogether different. It cannot be brushed aside that in case of medical negligence, the professional career of the treating doctor is at stake and therefore the degree of proof needs to be higher in such matters. A person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way. The treating doctor cannot be held guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men. It is also settled law that in realm of diagnosis and treatment, there is ample scope for genuine difference of opinion

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and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The medical practitioner is not an insurer and so cannot be blamed every time. It cannot be brushed aside that in case of medical negligence, the professional career of the treating doctor is at stake and therefore the degree of proof needs to be higher in such matters. A person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way. The treating doctor cannot be held guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men. It is also settled law that in realm of diagnosis and treatment, there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The medical practitioner is not an insurer and so cannot be blamed every time. Reference in this regard is made to case law cited as MARTIN F. DSOUZA versus MOHD. ISHFAQ, I(2009) CPJ 32 (SC) wherein Honble Supreme Court has observed that:- 49. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission. In para No.47 of MARTIN F. DSOUZAs case (Supra) it has been held that:- Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse. 36. The Honble National Commission in a recent judgment cited as Mohd. Abrar versus Dr. Ashok Desai and others, 2011 CTJ 613 (CP) (NCDRC) has observed as under:- The medical practitioners cannot be treated as magicians or demi-Gods. They are fallible human beings. The liability to pay compensation may arise only when the complainant proves that the causation was result of negligence committed by the medical practitioner and there was clear material available to foresee the injury. 37. The ratio of the above mentioned cases fully applies to the instant case. A doctor cannot give guarantee/surety to cure a patient and he can use his/her expertise to treat the patient and if the patient does not respond to the treatment given by the treating doctor, the same cannot be termed as medical negligence and deficiency in service. 38. It is also to be noted that the complainant has not filed any application for obtaining expert report from Medical Board, therefore, merely on the basis of pleadings of the complainants, it cannot be held that the doctors at opposite party no.1 has committed medical negligence, while treating the son of the complainants. In the instant case there is nothing on the record to prove that the doctors at opposite party no.1 had committed any medical negligence and deficiency in service while treating complainants son who died in the hospital. District Forum has failed to take into account the true facts of the case and as such the impugned order cannot be allowed to sustain. Hence, the appeal filed by the opposite party no.1 is fit to be allowed while dismissing the appeal filed by the complainants. In the result the appeal F.A.No.26 of 2015 filed by the opposite party no.1 is allowed by setting aside the order of the District Forum-I, Hyderabad dated 13.01.2015 made in C.C.No.667 of 2012 and consequently the complaint is dismissed. The appeal filed by the complainants F.A.No.25 of 2015 is dismissed. No order as to costs.
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