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Rakesh vs. Deep Hospital dated 2014-09-11

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

REVISION PETITION NO.279 OF 2010

(From the order dated 10.09.2009  in F.A. No.295/2003 of the

Haryana State Consumer Disputes Redressal Commission, Panchkula)

 

Rakesh                                                                                  ….. Petitioner

s/o Data Ram

r/o Fatehpuri (Dadoli)

Tehsil & Distt. Rewari 

                                               Versus

1. Deep Hospital                                                                  ....... Respondents

Through Dr.Ajay Aggarwal

Circular Road

Opp. Girls Senior Secondary School

Rewari

 

2.  Dr. Ajay Aggarwal

Prop. Of Deep Hospital

Opp. Girls Senior Secondary School

Rewari

 

3.  New India Assurance Company Limited

Through its Regional Manager

Sector 17-A, Chandigarh

 

 

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

For the Petitioner                 :  Mr. Shailendra Bhardwaj, Advocate

For the Respondents          :  Dr. Sushil Kumar Gupta, Advocate

PRONOUNCED ON :   11TH  SEPTEMBER, 2014

                                                              ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

            This revision is directed against the order of the State Haryana dated 10.09.2009 10.09.2009 whereby the State Commission relying upon the judgment of the Supreme Court in the matters of Martin F D’Souza Vs. Mohd. Ishfaq I (2009) CPJ 32 (SC), Jacob Mathew Vs. State of Punjab (2005) 6 SCC 1 as also State of Punjab Versus Shiv Ram & Ors. (2005) 7 SCC 1 allowed the appeal preferred by the respondents and dismissed the consumer complaint filed by the petitioner. 

2.         Briefly stated, the facts relevant for the disposal of the revision petition are that on 12.01.1999  complainant approached Dr.Ajay Aggarwal with the complaint of stomach ache.  The complainant was subjected to ultrasound test which revealed that he was having problem of inflamed appendix.  Thus, the respondent Dr.Ajay Aggarwal operated upon the complainant on 14.01.1999 at the respondent no.1 hospital.  Despite of having undergone surgery and follow up treatment till 01.02.1999, the stomach ache of the complainant persisted.  Thus, the complainant visited Batra Hospital and Medical Research Centre on 03.02.1999.  The doctors at Batra Hospital after examination found that there was pus formation in the area operated upon and advised him to undergo another surgery.  The complainant as per advice of the doctors of Batra Hospital underwent surgery and he was treated there from 03.02.1999 to 28.02.1999.  It is the case of the complainant  that the respondent doctor was negligent in conducting surgery and post operative care. Respondent no.3 was impleaded as party being the insured. 

3.         Respondent opposite parties resisted the complaint and pleaded that respondent no.2 is a qualified doctor and petitioner complainant was treated with due care and caution. 

4.         On the basis  of the pleadings of the parties and the evidence, the District Forum allowed the complaint and directed respondent nos. 1 & 2 to pay compensation of Rs.1,50,000/- to the complainant within 90 days from the date of the order failing which it was directed that awarded amount shall carry 10%  interest from the date of order till realisation besides Rs.1000/- was awarded as litigation expenses.

5.         Being aggrieved of the order of the District Forum, the respondents preferred an appeal and the State Commission vide impugned order set aside the order of the District Forum and dismissed the complaint.

6.         Mr. Shailender Bhardwaj, Advocate for the petitioner has contended that the State Commission has committed an error in failing to appreciate the statement of Dr. Vijay Hangloo, General Surgeon, Batra Hospital which establishes beyond doubt that respondent no.2 was negligent in the treatment of the complainant.  It is further contended that State Commission has failed to appreciate that the petitioner was discharged from the respondent hospital on 14.01.1999 and he approached Batra Hospital on 03.02.1999.  It is contended that from the evidence it is clear that during the said period, although the petitioner was complaining for persisting stomach ache, respondent no.2 did not take any step to clear the puss or to get him hospitalised again.  It is contended that aforesaid act of respondent no.2 amounts to gross negligence which has been ignored by the State Commission.

7.         Dr.Sunil Kumar Gupta, Advocate for the respondents has argued in support of the impugned order. 

8.         Before adverting to the submissions made on behalf of the parties, it would be useful to have a look on the law relating to medical negligence. Hon’ble Supreme Court in the case of Martin F Desouza (supra) has observed thus:

“47.     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 straightaway 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

49.       When a patient dies or suffers some mishap, there is 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 submission.”

 

9.         The Supreme Court in the matter of Jacob Mathew vs State of Punjab (supra) had discussed the principles governing the liability of medical professional in which the test law laid down in Bolam V Friern Hospital Management Committee (1957) 1 SLR 582 have been approved.  Relevant conclusion of the Apex Court are reproduced thus:

(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 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. 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.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he 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.

(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.

(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

10.       In the light of the above settled position in law, we now proceed to look into the statement of Dr. Vijay Hangloo, General Surgeon, Batra Hospital to find out whether or not the respondents are guilty of medical negligence.  Relevant portion of the statement of Dr. Vijay Hangloo is reproduced thus:

“I cannot say that pus formation took place because of unhygienic condition because I have not seen the operation theatre but pus formation can take place if unhygienic condition exist where operation is performed or whether the patient is kept.  It is difficult for me to say whether the pus formation was the result of some deficiency on the part of previous Doctor because of lack of information regarding condition of the Hospital and about the experience of the Doctor who performed the operation. After pus formation it is the duty of the attending doctor under whose supervision patient is treated continuously to drain out the pus and if after drainage pus still persists then patient should be operated to remove the pus.” 

 

11.       From the above, it is clear that Dr. Vijay Hangloo who conducted second surgery is not sure if Doctor Ajay Aggarwal was guilty of medical negligence in the treatment of the complainant.  Thus his statement by no means establishes medical negligence on the part of the respondent.   Further we find that in the clinical notes pertaining to the treatment of the complainant, the doctor has observed thus:           

“Pt. operated under spinal anesthesia by grid iron incision

Operative finding

 

1.         ½ litre pus in R/F

2.         Gangrenous appendix

3.         Inflamed caecum

Appendectomy done, peritoneal toilet done C-drain left in situ. Abdomen closed in layers

Post operiod was uneventful and patient was discharged on 14.1.1999

  •  
  •  

1.         nil orally TFO

2.         Inj. Cefataxione 1 gm BD

3.         Inj.Garranyjin 8 omg BD

4.         Inj.Metrogyl 500 mg TDS

5.         Inj.Fortion 1 amp SOS

                  IV fluid

                  2-5% dextrose

                  2 DNS

2 Rh

 

6.         Vitals Charting

7.         Intake output charting

This treatment continue for 2 days from 12.1.1999”

 

12.       On reading of the above it is clear that after the appendectomy, C-drain was left for the drainage of pus from surgical wounds.  From the above recorded notes and further treatment record, it is found that complainant was prescribed antibiotics for controlling the formation of pus.  Therefore, under the circumstances, it is difficult to conclude that the opposite parties were negligent in treatment of the complainant or there was any deficiency in service on their part.  Thus, in our view, the well reasoned order of the State Commission dismissing the complaint cannot be faulted.

13.       In view of the discussion above, the petitioner has not been able to point out any jurisdictional error or material irregularity in the impugned order which may call for interference by this Commission in exercise of revisional jurisdiction.  Revision petition is accordingly dismissed.      

………………………Sd/-…

     (AJIT BHARIHOKE, J)

      ( PRESIDING MEMBER)

 

 

 

                                                                  ……………………Sd/-……

                                                        (SURESH CHANDRA)

                                                                            MEMBER

Am/


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