MANU/CF/0156/2016
Equivalent Citation: 2016(6)ALD18,
II(2016)CPJ482(NC), III(2016)CPJ463(NC)
IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
NEW DELHI
Decided On: 25.02.2016
Appellants: Arun Kumar Manglik
Vs.
Respondent: Chirayu Health and Medicare Pvt. Ltd. and Ors.
Judges/Coram:Vs.
Respondent: Chirayu Health and Medicare Pvt. Ltd. and Ors.
Counsels:
For Appellant/Petitioner/Plaintiff:
For Respondents/Defendant:
Subject:
Acts/Rules/Orders:
·
Indian Penal Code 1860,
(IPC) - Section 304-A
Cases Referred:
·
Meenakshi Mission Hospital
and Research Centre vs. Samuraj and Anr. MANU/CF/0068/2004 ;
·
Jacob Mathew vs. State of
Punjab and Anr. MANU/SC/0457/2005 ;
·
Kusum Sharma and Ors. vs.
Batra Hospital and Medical Research Centre and Ors. MANU/SC/0098/2010
Authorities Referred: Disposition:
ORDER
1. The present first appeal Nos. 438 of 2015 filed by the Complainant and FA No. 453 of 2015 is filed by the Opposite Parties have been filed against a common order dated 27.4.2015 in consumer complaint No. 11 of 2011 passed by the Madhya Pradesh State Consumer Disputes Redressal Commission. Hence we propose to pass a common order. The facts of the case as per the appellant/Arun Kumar Manglik were that the appellant's wife Mrs. Madhu Manglik the deceased had expired on 15.11.2009 at 8.50 p.m. during treatment at Chirayu Health and Medicare Pvt. Ltd., Bhopal (in short, 'the Chirayu Hospital')/Respondent. Respondent No. 2 Dr. Ajay Goenka was the Director of the said Hospital.
2. On 15.11.2009, at about 7.00 p.m. Mrs. Madhu Manglik was admitted by her husband in the said hospital as she was having fever. On examination of her blood samples it was confirmed that the deceased was suffering with dengue fever. The deceased was admitted in the hospital with cashless medical insurance of United India Insurance Company. It was however, alleged that after the death of the deceased the respondents did not claim reimbursement from the Insurance Company.
3. At the time of admission in the hospital the deceased was diagnosed as a case of dengue fever with normal platelet count with history of catheter ablation, Parocxysmal Supra Ventricular Tacchyacardia (PSVT). Prior to her admission the blood report of 14.11.2009 indicated TLC 1900/cms., platelets 1.79 lakh/cumm, dengue NSI Ag Positive. However at the time of admission on 15.11.2009 the platelet count of the deceased had decreased to 97000/cumm, and around 6:30 p.m. on the same day the platelet count further went down to 19000/cumm. During the entire period, that the deceased remained under treatment, Consultant In-charge Dr. Ajay Goenka remained absent. They admitted her in the Intensive Care Unit (ICU). Dr. Vijay Verma, Dr. Abhay Tyagi and Dr. Mohammad Akeel Khan and Dr. Atul Singhai monitored the condition of the deceased. However, there was total lack of fair and reasonable standard of care. Not even the blood grouping/cross matching/arrangement for blood/plasma were made. The attending doctors despite the deteriorating condition of the deceased, kept on misguiding the relatives as well as the senior doctors of the city, who called upon to see and enquire about the health related aspect of deceased. They very casually and carelessly repeatedly assured that everything was fine and there was no need to worry that the patient though restless was improving. Ultimately, on 15.11.2009 itself at about 8:50 p.m. due to the indolencent, careless, ignorant and un-skillfulness treatment by the Chirayu Hospital, Mrs. Madhu Manglik died.
4. For redressal of his grievance, complainant approached the State Commission and prayed for Rs. 48 lakh as compensation along with interest @ 18% p.a. from the date of filing of the complaint and Rs. 60,000 as cost of litigation.
5. Controverting the allegations made by the complainant, the opposite parties filed the reply denying the allegations that Smt. Madhu Manglik died due to negligence, carelessness and improper treatment in the hospital. Opposite parties averred that Smt. Madhu Manglik was admitted at 7:00 a.m. on 15.11.2009, Sunday, for dengue fever with a normal platelet count. This diagnosis was based on the report of Glaze Pathology of 14.11.2009. The report indicated dengue NSI Ag positive and platelet count of 1.79 lakh/cumm. Her past cardiac history was also mentioned. Previous treatment papers were not made available. As a part of critical care the tests for SGOT, SGPT, renal function, sonography of abdomen in dengue fever were done. In the morning platelet count of Smt. Madhu Manglik was 97000/cumm, and therefore, blood or platelet transfusion at this stage was not needed. Chirayu Hospital had, however, component blood banking with apheresis machine used for plateletpheresis. O.P. 2/Dr. Ajay Goenka on 15.11.2009, Sunday, was on leave and out of station. It was denied that the request of attendants to call in senior doctors was not attended. Senior Dr. N.P. Mishra was informed on phone and on his advice the blood investigations were repeated. Platelet count of 97000/cumm was not alarming count in a case of dengue. According to recommendations of Government of M.P., Health Department and WHO if patient was not having haemorrhagic tendency, upto 20000/cumm no platelet transfusion was required.
6. Opposite parties denied that Mrs. Madhu Manglik was treated recklessly, negligently or carelessly. She was attended to by Dr. Abhay Tyagi who is a qualified MBBS doctor from a MCI recognized Medical College having special experience in critical care, and had been working in Chirayu Hospital to the last 2 years. Another doctor who attended Smt. Madhu Manglik was Dr. Atul Singhal, who was also registered with M.P. Medical Council and was working in Chirayu Hospital since the last 5 years. Dr. Akeel also attended Smt. Madhu Manglik. He was M.D. Medicine, consulting physician and cardiologist. He was also working in Chirayu Hospital since the last 3 years. According to opposite parties Smt. Madhu Manglik developed "Dengue Shock Syndrome". This is a condition which precipitates suddenly and patient deteriorates very fast. Along with this Smt. Madhu Manglik had developed PSVT. According to the Pathology Report at the time of admission her platelet count was 97000/cumm. On a repeat report it was shown 19000/cumm. The reports in Pathology Department were entered in chronological order, therefore, it could be interpreted that report No. 12312 was done in morning and report No. 12349 was done in evening. As platelet in the evening had fallen down they arranged for blood transfusion. Bed Head Sheet of the whole treatment which gave details of the treatment. The opposite parties denied the claim made by complainant under different heads of non-pecuniary losses and submitted that complainant was not entitled to claim any amount of compensation from them. They prayed for dismissal of the complaint.
7. The State Commission vide its order dated 27.4.2015 partly allowed the complaint and observed as under:
"48. Taking into consideration the aforesaid propositions, in our opinion, the complainant has highly exaggerated the claim. His son and daughter are highly educated and working persons, and apart of it they have not joined as complainant. Complainant, however, is entitled to receive compensation for mental agony and loss of consortium. In our opinion, in the circumstances of the case, a lump sum amount of Rs. 6,00,000 (six lakhs) would be just compensation to complainant.
49. Accordingly, the complaint is partly allowed. The
opposite party Nos. 1 and 2 are directed to pay Rs. 6,00,000, jointly and
severally, to complainant within 45 days from today. In case of default, the
amount shall carry interest at the rate of 9% till payment. The opposite
parties shall also bear the cost of litigation which is quantified at Rs.
20,000."
8. While giving order, the State Commission held that:"40. In view of the above, though we cannot form any definite opinion about transfusion of platelet at that point of time still we find that the opposite parties did not take all the necessary and reasonable precaution and steps for monitoring the fluid therapy. Serial haematocrit determinations are essential guide for treatment, since they reflect the degree of plasma leakage and need for intravenous administration of fluids. Haematocrit should have been determined regularly for the management of fluid therapy. Excessive fluid replacement and continuation for a longer period after cessation of leakage will cause respiratory distress from massive pleural effusion, ascites and pulmonary congestion/oedema. This can be dangerous.
41. As per WHO guidelines the patient requires regular
and sustained monitoring. If the patient has already received about 1000 ml. of
intravenous fluids and the vital signs are still not stable, the haematocrit
should be repeated and: (a) if the haematocrit is increasing, intravenous fluid
should be changed to colloidal solution preferably Dextran, or (b) if
haematocrit is decreasing, fresh whole blood transfusion 10 ml/kg dose should
be given. It appears that the opposite parties remained oblivious of these
norms. They sent the blood sample of the patient for examination at 6:45 p.m.
when patient had cardiac arrest. It is true that after cardiac arrest the opposite
parties made all the efforts to save the life of patient, but it is not the
after - care which is important. In Meenakshi Mission Hospital & Research
Centre v. Samuraj & Anr., MANU/CF/0068/2004 : I (2005) CPJ 33 (NC) the
National Commission observed:
"Secondly, that the doctors of the appellant had taken all the
necessary and reasonable steps to save patients and death of the patient
occurred beyond the control of the doctors. The question is not of efforts to
save the patient. Both the lower Forums have fastened the responsibility on the
petitioner hospital on the very cause of cardia-rest within half an hour of the
administering of anaesthesia. It is this which resulted death of the child. It
is not after-care which is important. The whole case revolves around as to what
caused the cardiac-rest resulting in death."
42. It remained unexplained as to when patient was
admitted with platelet count 97000/cumm and haemoglobin 13.4 gm/dl, how
platelet count fell and come-down to 19000/cumm and heamoglobin to 8.1 gm/dl
and her BP came to be non-recordable at 6:45 p.m. and patient suffered cardiac
arrest when continuously she remained under monitoring in ICCU. It is true, no
symptoms of internal haemorrhagic petechiae, ecchymoses, purpura were found
with the patient and no ascites seen in sonography, but that did not exonerate
the opposite parties from their duty to act according to the guidelines to be
followed in the treatment of DHF/DSS. It was obligatory on the part of opposite
parties to ensure that deceased should have been treated and monitored as per
accepted guidelines and normal practice. But they failed to do what they ought
to have done. It is true that it is not always possible for a doctor to record
each and every minute detail of the procedure done by him in case of emergent
situation and in critical condition of patient, but at the same time it is
expected from the doctor that he should perform his duty sincerely and
vigilantly to standard practice and guidelines settled for treatment of
particular ailment in given situation. 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.
44. After evaluating over all circumstances appearing
from the record we are of the opinion that doctors of the opposite party did
not follow the standard protocol and the guidelines developed by WHO and NVBDCP
for the treatment of DF/DHF/DSS. They failed to treat the patient with
sincerity according to guidelines. They ought to have monitored the rise of
fall in the haematocrit of the patient while providing fluid therapy by
infusing crystalloid and colloids intravenous fluids. As per guidelines this
was an important life saving measures, therefore, the patient should have been
monitored on an hourly basis based on periodic haematocrit/platelet count
determination and vital signs. Without measuring the weight of the patient in
accordance with the standard practice of weighing patient lying on bed, doctors
continued fluid therapy till her cardiac arrest and ultimate death. They have
failed to have blood grouping and matching of the patient at early stage which
should have been done in a patient in shock as routine precaution. They even
did not take care to monitor the urine out-put of the patient which was
essential during the treatment by fluid therapy. In these circumstances,
ultimately deceased suffered bradycardia, cardiac arrest and died. For these
reasons, we feel compelled to hold that the treating doctors of opposite
parties acted negligently and committed deficiency in service in treating the
deceased.
9. We have heard the learned Counsel for the parties and gone through the
record. In FA No. 438 of 2015 the complainant/appellant has asked for
enhancement of compensation awarded to him. Learned Counsel for the appellant
in FA No. 453 of 2015 has contended that appellant No. 2/opposite party No. 2
was not present throughout and the State Commission proceeded to award
compensation against appellant No. 2 - Dr Ajay Goenka.10. It was further contended that the State Commission should have discussed the previous treatment, which was given to the deceased to appreciate as to what prompted the complainant to admit his wife in such an early hours of the fateful day. In fact, there were documents available on record, which will demonstrate that dengue was diagnosed on 14.11.2009 and there was delay of about 16 hours in admitting the patient to the appellant hospital. Despite of having fever, vomiting, decrease appetite, restlessness, bodyache no physician's consultation was taken. The State Commission has overlooked the fact that Medical Council of India had forwarded the matter to the Madhya Pradesh Medical Council with a request to investigate and take necessary action in the matter and thereafter, on 24.2.2014 Medical negligence against the accused doctors. Thus, it was all the more necessary for the State Commission to have gone through the record of the Medical Council, reasons assigned for the opinion that there was no medical negligence before arriving at any finding of medical negligence. In the impugned order, it has been categorically noted that previous treatment papers were not made available to the appellant hospital. The State Commission should have insisted for production of these documents but, despite request from the hospital, such papers were not produced neither at the time of the admission at Chirayu Hospital or during treatments or at the time of the filing of the complaint nor subsequently. Non-filing of patient's history, and past treatment should have given rise to adverse inference against the complainant, but these vital facts have been overlooked by the State Commission.
11. The State Commission ignored the fact that on 15.11.2009, Dr. Ajay Goenka was on leave and out of station. Therefore, impleading Dr. Ajay Goenka in his personal capacity, especially when the patient was neither under his care nor was attended by him. Therefore, the State Commission has faulted in proceeding against Dr. Ajay Goenka in his individual capacity.
12. The State Commission without examination of facts accepted the allegations that patient was administered excess of fluid (9 units each) of IV fluids viz. Dextrose 5 % and Ringer Lactate. When the patient got admitted at 7.15 a.m., at that time a total of 5 units of crystalloid transfusion was planned for next 24 hours in the form of 3 units of DNS and 2 units of Isolyte M (total of 2.5 liters) which was being transfused on planned basis. However against the expectation the patient went into sudden hypotension and shock at 6. p.m., by that time only half of the planned fluid was transfused to the patient i.e. approx. 1250 ml. Seeing the patient going into shock, stat resuscitation fluid in the form of 2 units ringer lactate and 1 unit haemacele was given to overcome the sudden hypotension, which is a standard medical practice for sudden hypotension associated with distributive, hypovolemic or haemorrhagic shock. Hence, against the findings of the State Commission which concluded that 9 units of IV fluid was given fast only half i.e. (1250 ml) of planned IV fluid plus 1 litre of Ringer lactate and 500 ml. of haemacele, i.e. a total amount of 1500 + 1250 ml. i.e. 2750 ml. of fluid was transfused to the patient which equals of 5 units rather than alleged 9 units. Secondly Dextrose 5% was neither being advised and nor being transfused at any moment of time to the patient. With this amount of fluid no patient of such type can go into overloading situation. As per the bed head ticket, patient had complaints of vomiting, fever, decreased appetite. As per para 5.2.2 of the guidelines issued by NVBDCP clearly mentions that IV fluid may be administered if the patient was vomiting persistently or refusing to feed. In the present case, both the parameters were available and therefore, it cannot be said that there was any fluid overload in the case of the deceased. Besides this, the patient's blood pressure was very low and non-recordable. Thus, it was necessary to maintain blood pressure IV fluid should have been administered rapidly. Thus, there was no deficiency in administrating IV fluid as has been alleged. In case of fluid overload there is third space collection in the form of pleural and intraperitoneal fluid. Which is called as pleural effusion and Ascites. These were also not evident in the patients X-ray and in USG Abdomen's report. Which clearly suggests "No ascites seen". Even when the patient was put on ventilator there was no frothing, which would have been observed in the Endotracheal tube and tubes of the ventilator in cases of fluid overload because of pulmonary edema.
13. It was alleged no instructions were given regarding not administering the medicine "Aspirin". Learned Counsel for the appellants in FA No. 453 of 2015 contended that they never administered Aspirin to the patient. It was neither prescribed nor administered. Therefore, plea of not instructing the patient to not to take Aspirin is a bogus argument. But it amounts to admission on the part of the complainant that the patient was administered Aspirin by the relatives of the patient without informing the hospital and the treating doctors, which could have been responsible for decreased in platelet count and ultimately, patient's deterioration.
14. Further on admission the platelet count' was 97000 and the patient was under proper management. Such platelet count of 97000 does not warrant transfusion unless and until there is a clear evidence of bleeding or patient was required to undergo some invasive procedure. According to recommendations of Government of M.P., Health Departmental WHO if patient was not having haemorrhagic tendency, upto 20000/cumm no platelet transfusion was required. Guidelines of NVBDCP clearly provides that blood transfusion is to be given only when the haematocrit falls rapidly due to hemorrhage. Haematocrit of the patient was on 14th Nov 37.2 and on 15 Nov is 38.0 there is no significance change in the haematocrit value. As there was no signs of hemorrhage, so there was no need for blood transfusion at that level.
15. Ongoing through the Guidelines for treatment of Dengue Fever/Dengue Haemorrhagic fever in small hospitslaby WHO we find that Dengue is an acute flu like fever caused by virus which occurs in two forms (i) Dengue Fever (DF) and (ii) Dengue Haemorrhagic fever (DHF).
Dengue Fever is marked by an onset of sudden high fever, sever, headache, pain behind eyes and pain in the muscles and joints.
Dengue Haemorrhagic fever (DHF) is a more severe form, in which bleeding and sometimes shock occurs. Symptoms of bleeding usually occur after 2-3 days of fever.
The high fever continues for 5-6 days (103-105 F or 39-40 C) It comes down on the third or the fourth day but rises again. The patient feels a lot of discomfort and is very weeks after the illness.
Recognition of Dengue Fever
(i) Sudden onset of high fever; (ii) severe headache (mosty in the forehead); (iii) pain behind the eyes which worsens with eye movement; (iv) body aches and joint pains; and (v) nausea or vomiting.
Recognition of Dengue Haemorrhagic Fever and Shock.
Symptoms similar to dengue fever, plus and one or a combination of the following:
(i) Severe and continuous pain in the abdomen; (ii) bleeding from the nose, mouth and gums or skin bruising; (iii) frequent vomiting with or without blood; (iv) black stools like coal tar; (v) excessive thirst (dry mouth); and pale, cold skin.
Diagnosis
Confirmation of DF and DHF can be done by specific laboratory tests. However, specific diagnosis is not required for treatment of patients with DF/DHF.
Treatment:
Patient(s) suspected of having DF or DHF must be examined by a doctor.
Proper and early treatment can relieve the symptoms and prevent complications and death. Aspirin and brufen should be avoided in dengue fever, as they are known to increase the bleeding tendency and may lead to serious complications, Paracetamol can be given on medical advice".
Treatment of DF and DHF (Spiral binding book page 93)
5.1 Febrile Phase.
In the early febrile phase, it is not possible to distinguish DF from DHF.
Their treatment during the febrile phase are the same, i.e., symptomatic and
supportive:Rest and paracetamol (not more than 4 time in 24 hours) according to age for fever above 39 C.
Do not give aspirin or brufen. Aspirin can cause gastritis and/or bleeding. In children, reye's syndrome (encephalopathy) may be a serious complication.
16. In the present case admittedly the patient was brought to the hospital and admitted on 15.11.2009 at 7.00 a m. As per the history sheet she had fever for the last five days with body ache, headache, vomiting, nausea and less palpitation. She had past history of hysterectomy in 1994 and catheter abalation for PSVT. Dengue had been confirmed by the pathology report dated 14.11.2009 of Glaze Pathology. The deceased patient's platelet count was 1.79 lakh cumm which was normal. The patient was put on fluid therapy as also some medication which however, did not include aspirin. She was given paracetamol along with other medicines. She was under observation and remained stable till about 6.00 p.m. when she became restless and irritable, extremely cold, BP was un-recordable, pulse non palapable and she had cardiac arrest. She was immediately intubated and put on ventilatory support. She was given treatment as required for her cardiac arrest. She had another cardiac arrest at 8.00 p.m. and though all resuscitative measures were taken she was declared dead at 8.55 p.m. During this time, two doctors also visited the hospital at the request of patient and treatment as advised by them was also given. Unfortunately, the patient died of cardiac arrest due to dengue with shock (Thrombocytopaenia). After the death of the patient Mrs. Madhu Manglik, the complainant made a complaint to the Medical Council for gross medical negligence during the medical treatment at Chirayu Health and Medicare Pvt. Ltd. The complaint was referred to the MP Medical Council. The MP Medical Council in a report signed by eight Members observed as under:
"The expert committee agreed that in case of dengue fever, "dengue shock synodrome" develops suddenly and rapidly and patient can felt serious minimizing the chances of survival. The committee after scrutiny of case file observed that the patient was managed properly as per protocol and found no negligence in the case.
The Decision of the Ethics-cum-Disciplinary Committee dated 24.2.2014.
The Committee unanimously decided that the complainant failed to prove the case of medical negligence against the accused doctors. Hence, the case is closed."
17. A communication was then sent to Shri Arun Kumar Manglik by the MP Medical Council conveying the decision of the Committee which reads as under:
"The Committee unanimously decided that the complainant
failed to prove the case of medical negligence against the accused doctors.
Hence, the case is closed."
18. The two doctors who had been brought in by the patient also gave their
affidavits which show that they had visited the hospital on 15.11.2009 as also
advised regarding the treatment of late Madhu Manglik. Dr. C.C. Chaubal in his
affidavit has stated that he visited the hospital at about 5.30 p.m. when
"the patient was undergoing cardiac pulmonary resuscitation. Development
of cardiac arrest in any patient requires a similar protocol for resuscitation.
This case developed shock followed by sudden cardiac arrest which is a serious
complication of dengue shock syndrome."19. Dr. N.P. Mishra in his affidavit has stated that he was consulted on phone two to three times by the treating Dr. Abhay Tyagi and also visited the Hospital around 6.30 p.m. to see the patient. He "reviewed the entire treatment during one and half hour stay in the ICU, and I found that the treatment given to the patient since morning was appropriate for her clinical condition."
20. Dengue Shock Syndrome is due to dengue virus which causes abdominal pain, haemorrhage and circulatory collapse (shock), it starts abruptly and occurs after 2-6 days with sudden collapse, cool clammy extremities, weak thread pulse, and blueness around the mouth. Pneumonia and heart inflammation may be present.
21. As per the literature given by Dr. Ajay Goenka titled as Hemodynamic Profiles of patients with dengue haemorrhagic fever during toxic stage: and echocardiographic study--"the mechanism of decreased cardiac output during toxic stage of DHF is complex. Decreased preload is accompanied by decreased left ventricular performance and possible a subnormalheart rate response in some patients."
22. Another literature titled as Cardiac Function in Vietnamese patients with different dengue severity grades-it has been stated that "patients with severe dengue have evidence or systolic and diastolic cardiac impairment with septal and right ventricular wall being predominantly affected". In the case of Mrs. Madhu Manglik her heart was already compromised as she had a permanent history of PSVT.
23. We find that the State Commission has arrived and recorded its findings without discussing the evidence based on which they had come to the conclusion that the deceased Madhu Manglik had been given excessive fluid which lead to fluid overload. There is no medical evidence or report on record to substantiate the same. We cannot understand as to why the State Commission found questionable that the deceased's Platelet Count fell from 97,000 to 19,000, "even though she was in the hospital". The State Commission has ignored the facts that the patient was suffering from DHF and the Platelet does fall suddenly in such cases. The State Commission while concluding that the hospital and the doctors had failed to perform their duty sincerely and as per the guidelines and ignored the fact that the patient had been suffering from fever for the last five days prior to being brought to the hospital. Even as per the complainant there were newspaper report regarding widespread dengue, which had resulted in many deaths. Mrs. Madhu Manglik was still not shown to any doctor. On the contrary in spite of symptoms which were suggestive of DHF, Aspirin prescribed for PSVT was continued. Aspirin during DF/DHF is fatal and accelerates the symptoms of DSS as it leads to bleeding and adversely compromising of platelets. The State Commission has also ignored the fact that even after Glaze Pathology diagnosed her case as that of dengue on the evening of 14.11.2009 the complainant waited till 15.11.2009 morning to take her to hospital. The State Commission has ignored the fact that once she was admitted to the hospital Mrs. Madhu Manglik was given medicines by the hospital and there was no question of advising the family to stop aspirin. The treating doctor stopped aspirin and gave paracetamol. But the fact remains that aspirin remains in the blood stream for 6-7 days and the damage was done. From the record put on the file as also the affidavits of the treating doctors who had been consulted, it has been established that the she was brought on the 6th day of her fever and well after she was diagnosed with Dengue and hence, already compromised and critical. The treating doctors of the hospital had followed the standard protocol prescribed for such patients, but unfortunately, could not save the patient. The MP Medical Council based on findings of the expert committee and also the Ethics-cum-Disciplinary committee had already decided that the complainant Arun Kumar Manglik had failed to prove the case of medical negligence against the accused doctor and closed the case on 24.2.2009 and communicated the same to the complainant on 5.6.2014.
24. The Hon'ble Supreme Court in the case of Jacob Mathew (Dr) v. State of Punjab and Anr., MANU/SC/0457/2005 : III (2005) CPJ 9 (SC) : VI (2005) SLT 1 : 122 (2005) DLT 83 (SC) : III (2005) CCR 9 (SC), has held that:
19. In the law of negligence, professionals such as
lawyers, doctors, architects and others are included in the category of persons
professing some special skill or skilled persons generally. Any task which is
required to be performed with a special skill would generally be admitted or
undertaken to be performed only if the person possesses the requisite skill for
performing that task. Any reasonable man entering into a profession which
requires a particular level of learning to be called a professional of that
branch, impliedly assures the person dealing with him that the skill which he
professes to possess shall be exercised and exercised with reasonable degree of
care and caution. He does not assure his client of the result. A lawyer does
not tell his client that the client shall win the case in all circumstances. A
physician would not assure the patient of full recovery in every case. A
surgeon cannot and does not guarantee that the result of surgery would
invariably be beneficial, much less to the extent of 100% for the person
operated on. The only assurance which such a professional can give or can be
understood to have given by implication is that he is possessed of the
requisite skill in that branch of profession which he is practising and while
undertaking the performance of the task entrusted to him he would be exercising
his skill with reasonable competence. This is all what the person approaching
the professional can expect. Judged by this standard, a professional may be
held liable for negligence on one of 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 necessary for every professional
to possess the highest level of expertise in that branch which he practises. In
Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001]
P.N.L.R. 233 , CA, Sedley L.J. said that where a profession
embraces a range of views as to what is an acceptable standard of conduct, the
competence of the defendant is to be judged by the lowest standard that would
be regarded as acceptable. (Charlesworth and Percy, ibid, Para 8.03)
22. The degree of skill and care required by a medical
practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.
30, Para 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 operated in a different
way; nor is he 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, even though a body of adverse opinion also existed among
medical men.Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
Above said three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence (ibid, para 8.110)
29. A medical practitioner 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. 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.
30. If the hands be trembling with the dangling fear of
facing a criminal prosecution in the event of failure for whatever reason
whether attributable to himself or not, neither a surgeon can successfully
wield his life-saving scalper to perform an essential surgery, nor can a
physician successfully administer the life-saving dose of medicine. Discretion
being better part of valour, a medical professional would feel better advised
to leave a terminal patient to his own fate in the case of emergency where the
chance of success may be 10% (or so), rather than taking the risk of making a
last ditch effort towards saving the subject and facing a criminal prosecution
if his effort fails. Such timidity forced upon a doctor would be a disservice
to the society.
32. The subject of negligence in the context of medical
profession necessarily calls for treatment with a difference. Several relevant
considerations in this regard are found mentioned by Alan Merry and Alexander
McCall Smith in their work "Errors, Medicine and the Law" (Cambridge
University Press, 2001). There is a marked tendency to look for a human actor
to blame for an untoward event/026 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. To draw a distinction between the blameworthy and the
blameless, the notion of mens rea has to be elaborately understood. 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 doctor's contribution
is either relatively or completely blameless. 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 in real life the doctor functions.
The factors of pressing need and limited resources cannot be ruled out from
consideration. Dealing with a case of medical negligence needs a deeper
understanding of the practical side of medicine.
(1) We sum up our conclusions as under:(1) 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 a prudent and reasonable man would not. 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'.
51. As we have noticed hereinabove that the cases of
doctors (surgeons and physicians) being subjected to criminal prosecution are
on an increase. Sometimes such prosecutions are filed by private complainants
and sometimes by police on an FIR being lodged and cognizance taken. The
investigating officer and the private complainant cannot always be supposed to
have knowledge of medical science so as to determine whether the act of the
accused medical professional amounts to rash or negligent act within the domain
of criminal law under Section 304-A of IPC. The criminal process once initiated
subjects the medical professional to serious embarrassment and sometimes
harassment. He has to seek bail to escape arrest, which may or may not be
granted to him. At the end he may be exonerated by acquittal or discharge but
the loss which he has suffered in his reputation cannot be compensated by any
standards.
We may not be understood as holding that doctors can never be prosecuted for
an offence of which rashness or negligence is an essential ingredient. All that
we are doing is to emphasize the need for care and caution in the interest of
society; for, the service which the medical profession renders to human beings
is probably the noblest of all, and hence there is a need for protecting
doctors from frivolous or unjust prosecutions. Many a complainant prefers
recourse to criminal process as a tool for pressurizing the medical
professional for extracting uncalled for or unjust compensation. Such malicious
proceedings have to be guarded against.
53. Statutory Rules or Executive Instructions
incorporating certain guidelines need to be framed and issued by the Government
of India and/or the State Governments in consultation with the Medical Council
of India. So long as it is not done, we propose to lay down certain guidelines
for the future which should govern the prosecution of doctors for offences of
which criminal rashness or criminal negligence is an ingredient. A private
complaint may not be entertained unless the complainant has produced prima
facie evidence before the Court in the form of a credible opinion given by
another competent doctor to support the charge of rashness or negligence on the
part of the accused doctor. The investigating officer should, before proceeding
against the doctor accused of rash or negligent act or omission, obtain an
independent and competent medical opinion preferably from a doctor in
Government service qualified in that branch of medical practice who can
normally be expected to give an impartial and unbiased opinion applying Bolam's
test to the facts collected in the investigation. A doctor accused of rashness
or negligence, may not be arrested in a routine manner (simply because a charge
has been levelled against him). Unless his arrest is necessary for furthering
the investigation or for collecting evidence or unless the investigation
officer feels satisfied that the doctor proceeded against would not make
himself available to face the prosecution unless arrested, the arrest may be
withheld.
25. In the case of Kusum Sharma & Ors. v. Batra Hospital and Medical
Research Centre and Others, MANU/SC/0098/2010 : II (2010) SLT 73 : MANU/SC/0098/2010
: I (2010) CPJ 29 (SC) : MANU/SC/0098/2010 : 2012 (2) RCR (Civil) 161, the
Hon'ble Supreme Court while deciding whether the medical professional is guilty
of medical negligence held that 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 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 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 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 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.
In view of the above, we find that the appellant in FA No. 438 of 2015, i.e., the complainant, has failed to prove his case of medical negligence and hence, we allow the FA No. 453 of 2015 by the appellants/opposite parties and set aside the order of the State Commission and dismiss the complaint. Accordingly, FA No. 438 of 2015 is also rejected.
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