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2014 DIGILAW 245 (UTT)

S. K. GUPTA v. R. R. DOBHAL

2014-05-30

B.C.KANDPAL, C.C.PANT

body2014
ORDER (Per: Mr. C.C. Pant, Member): These two appeals arise out of the order dated 23.07.2010 passed by the District Forum, Dehradun in consumer complaint No. 105 of 2008, whereby the District Forum has allowed the consumer complaint and has directed the opposite parties to pay to the complainant a sum of Rs. 2,25,000/-. 2. The factual matrix of the case is that the complainant – Sh. R.R. Dobhal is a retired Central Government Officer and is covered under Central Government Health Scheme or CGHS Rules of the Central Government. The complainant’s wife was suffering from knee pain. She was referred to Orthopedic Surgeon, Doon Hospital for advice and treatment by CGHS, Dehradun. On 08.05.2007 the complainant’s wife consulted the Orthopedic Surgeon of Doon Hospital and on his prescription, she consulted Dr. S.K. Gupta – opposite party No. 3. Dr. S.K. Gupta advised her for knee replacement. As per the complainant, he requested the doctor to refer the case to higher medical center, but the doctor refused the same on the ground that the knee replacement facility is available in Doon Hospital. On 02.06.2007, the complainant’s wife was admitted in Doon Hospital, where she was operated upon by the Orthopedic Surgeon Dr. S.K. Gupta – opposite party No. 3 on 05.06.2007 for “Total Knee Replacement” or TKR (L) and was discharged from the hospital on 19.06.2007. The complainant has alleged that at the time of discharge, the wound was continuously bleeding, but the opposite party No. 3 did not pay any heed to it. The dressing of the wound was done on every Tuesday and Saturday, but the discharge of blood and pus did not stop. When the complainant noticed that there was no sign of healing of the wound, he consulted a private doctor Dr. B.K.S. Sanjay, who told him that the wound had got infected and it would require immediate operation, so that the complainant’s wife’s leg could be saved. Then, Dr. S.K. Gupta was asked by the complainant to refer the case to higher medical centre and on his recommendation, the CGHS, Dehradun referred the complainant’s case to APOLLO Hospital, Noida for further treatment. During the first surgery of the complainant’s wife, the attending surgeon found that the lateral collateral ligament was absent. After second stage surgery, the complainant was told that the chances of fitness after surgery are very far-off. During the first surgery of the complainant’s wife, the attending surgeon found that the lateral collateral ligament was absent. After second stage surgery, the complainant was told that the chances of fitness after surgery are very far-off. As per the complainant, his wife has become 50% permanently disabled after the treatment and is unable to stand and walk without help. Thus, alleging negligence committed by opposite party No. 3, the complainant filed a consumer complaint before the District Forum, Dehradun, also arraying therein the Director General of Health as opposite party No. 1; Doon Hospital through its Chief Medical Superintendent as opposite party No. 2 and APOLLO Hospital through its In-charge as opposite party No. 4. 3. The opposite party No. 3 filed his written statement, which is at paper Nos. 17 to 22 on the record of First Appeal No. 255 of 2010 and pleaded that the rules laid down by the Hon’ble Supreme Court in the case of “Martin F. D’Souza vs. Mohd. Ishfaq (Civil Appeal No. 3541 of 2002)” be followed before proceeding against the doctor; that the Director General of Health had set up an enquiry against Dr. Ishfaq (Civil Appeal No. 3541 of 2002)” be followed before proceeding against the doctor; that the Director General of Health had set up an enquiry against Dr. S.K. Gupta on receipt of a complaint from the complainant and the Committee so constituted for the enquiry came to the conclusion that no case of medical negligence is made out; that some discharge was seen from the wound after 7 days’ of the operation, but on the insistence of the patient and her relatives, she was discharged from Doon Hospital; that the wound’s discharge was serous and scanty (in drops and of and on), so proper antibiotic medicines were prescribed at the time of discharge; that the dressing was done in the hospital, but at times, they also got it done on their own at the home; that such a discharge occurs in some cases after operation as the patient’s body refuses to accept the foreign element like bone-cement that is put in the body; that there was no pus at all, but it was fluid (serous discharge); that all proper medications were given to the patient that should be given in the cases of such discharge; that on his advice, fluid culture sensitivity test was done from outside the hospital, that the test was positive and he advised to admit the patient in the hospital for intravenous antibiotic treatment; that no comment can be made on the opinion given by Dr. B.K.S. Sanjay for want of relevant documents; that on refusal to admit the patient in the hospital, the doctor referred the case to Apollo Hospital, Noida; that no comment can be made upon as to how the ligament got damaged for want of Apollo Hospital’s relevant record. 4. The District Forum, after an appreciation of the facts and circumstances of this case, allowed the consumer complaint against the opposite parties vide order dated 23.07.2010 and directed them to pay a sum of Rs. 2,25,000/- to the complainant. 5. Aggrieved by the order, the opposite party No. 3- Dr. S.K. Gupta has filed First Appeal No. 255 of 2010, impleading therein Sh. R.R. Dobhal– complainant as respondent No.1; Director General of Health as respondent No. 2; Doon Hospital through its Chief Medical Superintendent as respondent No. 3 and Apollo Hospital through its in-charge as respondent No. 4. 5. Aggrieved by the order, the opposite party No. 3- Dr. S.K. Gupta has filed First Appeal No. 255 of 2010, impleading therein Sh. R.R. Dobhal– complainant as respondent No.1; Director General of Health as respondent No. 2; Doon Hospital through its Chief Medical Superintendent as respondent No. 3 and Apollo Hospital through its in-charge as respondent No. 4. The Director General of Health – opposite party No. 1 and Doon Hospital through its CMS have also challenged the impugned order and have filed First Appeal No. 287 of 2010, impleading therein Sh. R.R. Dobhal–complainant as respondent No. 1, Dr. S.K. Gupta as respondent No. 2 and Apollo Hospital as respondent No. 3. Since the facts of the case in both the appeals are same, these are being disposed of with a common order. 6. We heard learned counsel for the appellant and respondent Nos. 1 to 3 in First Appeal No. 255 of 2010 and appellants and respondent Nos. 1 & 2 in First Appeal No. 287 of 2010 and also perused the material placed on record. None for the respondent No. 4 in First Appeal No. 255 of 2010 and respondent No. 3 in First Appeal No. 287 of 2010. The learned counsel for the parties in First Appeal No. 255 of 2010 have also submitted their written arguments. 7. Arguing on behalf of Dr. S.K. Gupta, appellant in First Appeal No. 255 of 2010, Sh. J.K. Jain, learned counsel submitted that the appellant is a highly qualified and experienced orthopedic surgeon and he has successfully performed 688 orthopedic operations and 3 TKR surgeries during the period from 2005 to 2008. The complainant–respondent No. 1 had made a complaint to the Director General of Health and an enquiry was set up against the appellant and the Enquiry Committee opined that the appellant had not made any negligence in the TKR (L) surgery of the complainant’s wife. The District Forum has, thus, made gross legal error by entertaining the consumer complaint inspite of the fact that the appellant had pleaded that rules laid down in Martein F. D’Souza’s case be followed. Once the Enquiry Committee has opined that the appellant had not made any negligence in complainant’s wife’s TKR (L) surgery, there was no reason for the District Forum to proceed against the appellant. Once the Enquiry Committee has opined that the appellant had not made any negligence in complainant’s wife’s TKR (L) surgery, there was no reason for the District Forum to proceed against the appellant. The learned counsel further submitted that the discharge summary of Apollo Hospital nowhere indicates that the lateral collateral ligaments were damaged during the surgery by the appellant. The private orthopedic surgeon Dr. B.K.S. Sanjay, to whom the respondent No. 1 had consulted, has not mentioned in the prescription issued by him that the lateral collateral ligaments were damaged or were found absent. 8. Sh. S.K. Gupta, Advocate, learned counsel for the complainant and respondent No. 1 in both the appeals reiterated the facts of the case and argued in support of the impugned order. 9. Sh. Ashok Dimri, learned counsel for the appellants in First Appeal No. 287 of 2010 mainly emphasized on the Enquiry Committee’s report and argued that since no negligence in surgery has been made by Dr. S.K. Gupta, it would be most unjust to hold the appellant negligent in the treatment of complainant’s wife. Otherwise also, the learned counsel pleaded that the surgery was performed by Dr. S.K. Gupta and the complainant has not made any allegation against the appellants. 10. We considered the submissions raised before us. After a careful perusal of the impugned order, we are of the view that the District Forum has failed to record its finding on the preliminary objections raised by Dr. S.K. Gupta that the consumer complaint was not maintainable. The District Forum has failed to give any cogent reason as to why the Enquiry Committee’s report could not be relied upon. Merely because the patient’s wound got infected and she had to go to Apollo Hospital for further treatment, the Enquiry Committee’s report cannot be ignored. We also observed that the local orthopedic doctor Dr. B.K.S. Sanjay and the doctors of Apollo Hospital have not made any specific observation that the ligaments were damaged due to carelessness on the part of Dr. S.K. Gupta. We all know that each and every case of treatment cannot be a successful one and if the treatment fails, the treating doctor cannot be held negligent in each and every such case. 11. However, before coming to any conclusion, it would be pertinent to peruse certain landmark judgments on the topic of “medical negligence”. S.K. Gupta. We all know that each and every case of treatment cannot be a successful one and if the treatment fails, the treating doctor cannot be held negligent in each and every such case. 11. However, before coming to any conclusion, it would be pertinent to peruse certain landmark judgments on the topic of “medical negligence”. The Hon’ble National Commission in the case of Dinesh Kaushal and others Vs. Dr. K.K. Khurana; III (2002) CPJ 297 (NC), has opined that if on perusal of the documents, it comes that the line of treatment adopted by the doctor was not wrong, nor there was any act of negligence or deficiency in service by the doctor, nor the affidavit filed by the complainant show that the line of treatment given by the doctor was contrary to the settled norms in the medical profession, then there was no negligence or deficiency in service by the doctor and the complaint deserve to be dismissed. The Hon’ble Supreme Court in the case of Jacob Mathew (Dr.) Vs. State of Punjab and another; III (2005) CPJ 9 (SC), has clearly observed in sub-para (3) of para 49 that, “a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly 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”. The Hon’ble Supreme Court in the aforesaid judgment has also discussed in para 22 the Halsbury’s Law of England (Fourth Edition, Volume 30, Para 35), in order to evaluate the degree of skill and care required by a medical practitioner in the following words: “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.” 12. The Hon’ble Supreme Court’s judgment in the case of Jacob Mathew (Dr.) (supra), has been followed by the Hon’ble Apex Court in the case of Martin F. D’Souza Vs. Mohd. Ishfaq; I (2009) CPJ 32 (SC) = 2009 (1) CPR 231 (SC). In the said case, the Hon’ble Apex Court has held as under: “41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa and others Vs. State of Maharashtra and others; AIR 1996 SC 2377 , or operated on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade. 44. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time. 46. 44. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time. 46. There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers some serious harm, should the doctor be held liable? In our opinion he should not. Science advances by experimentation, but experiments sometime end in failure eg. the operation on the Iranian twin sisters who were joined at the head since birth, or the first heart transplant by Dr. Barnard in South Africa. However, in such cases it is advisable for the doctor to explain the situation to the patient and take his written consent. 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. 54. In para 52 of Jacob Mathew’s case the Supreme Court realizing that doctors have to be protected from frivolous complaints of medical negligence, has laid down certain rules in this connection: (i) A private complaint should 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. (ii) 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 opinion applying the Bolam test. (ii) 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 opinion applying the Bolam test. (iii) A doctor accused of negligence should not be arrested in a routine manner simply because a charge has been leveled against him. Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest should be withheld.” 13. The Hon’ble National Commission in its latest judgment in the case of Madaan Surgical and Maternity Hospital & Anr. Vs. Santosh & Anr.; II (2014) CPJ 368 (NC) has observed that in case of medical negligence, the liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. It was held: “12. In medical negligence cases there is no presumption of or inference of negligence merely because of an unfortunate result which might have occurred despite the exercise of reasonable care. Under the law physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it is proven that an error of judgment was the result of negligence. A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. But to determine whether an error is one of “judgment” or whether it constitutes negligence it has been suggested that the Court is to look at whether the error is so “egregious” as to constitute negligence. It may be more helpful to say that the question should be formulated as whether it was a judgmental error that would have been made by a reasonably competent and diligent practitioner. Further, it was held: 13. When does the liability arise? The liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. Further, it was held: 13. When does the liability arise? The liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. In other words, the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence, once the existence of a duty has been established, the Petitioner must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the doctor will not be liable. In order to show the breach of duty, the burden on the petitioner would be to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree. It must be noted that it is not sufficient to prove a breach, to merely show that there exists a body of opinion which goes against the practice/conduct of the doctor.” 14. On the basis of the aforesaid judgments, we are of the definite view that in order to come to a finding that in a case of medical negligence, it should be proved beyond reasonable doubt that the doctor attending the patient deviated from the settled line of treatment or has not applied his attention towards the patient in a perfect manner or has not treated the patient in accordance with the knowledge and skill possessed by him. It is true that the line of treatment by the different doctors would be different, but that is not sufficient to come to the conclusion that the doctor is guilty of medical negligence. The law is a watch-dog and not a blood-hound, and as long as doctor do their duty with reasonable care, they will not be held liable even if their treatment was unsuccessful. The test in fixing negligence is the standard of the ordinary skilled doctor exercising and professing to have that special skill, but the doctor need not possess the highest expert skill and considering these facts of the case, we cannot hold the doctors guilty of medical negligence. 15. The test in fixing negligence is the standard of the ordinary skilled doctor exercising and professing to have that special skill, but the doctor need not possess the highest expert skill and considering these facts of the case, we cannot hold the doctors guilty of medical negligence. 15. Therefore, entirety of the foregoing discussions as well as in the light of the aforesaid judgments, the treating doctor cannot be held guilty for committing negligence in treatment unless and until there are sufficient reasons to prove that. In the instant case, Dr. S.K. Gupta is a qualified doctor and possesses required skill for performing TKR surgery. He has also performed a number of orthopedic surgeries successfully, the Enquiry Committee set up against him by the Director General of Health also came to the conclusion that the doctor was not negligent in TKR (L) surgery of the complainant’s wife, the private orthopedic surgeon Dr. B.K.S. Sanjay and also the doctors of the Apollo Hospital have not made any observation that the ligaments were damaged due to the negligence committed by Dr. S.K. Gupta in performing TKR (L) surgery. While taking a view in such cases, it should also be considered that no doctor commits negligence knowingly because every unsuccessful case affects his professional career. If most of the treatment cases of a doctor fail, then he would earn such a bad reputation that no one would dare to go to him for treatment. In the instant case, there is no such past history of Dr. S.K. Gupta-appellant. So far as 50% permanent disability of the patient (complainant’s wife) is concerned, we think that once an original part of the body is replaced with an artificial one, one attains certain degree of disability. Therefore, though we have all the sympathy with the complainant, but under the facts and circumstances of this case and also in the light of legal pronouncements as discussed above, Dr. S.K. Gupta cannot be held negligent in performing TKR (L) surgery of the complainant’s wife and accordingly the First Appeal No. 255 of 2010 filed by Dr. S.K. Gupta-appellant deserves to be allowed. Since we have held that Dr. S.K. Gupta cannot be held negligent in performing TKR (L) surgery of the complainant’s wife and accordingly the First Appeal No. 255 of 2010 filed by Dr. S.K. Gupta-appellant deserves to be allowed. Since we have held that Dr. S.K. Gupta has not committed any medical negligence in the matter and the appeal filed by him is fit to be allowed and, as such, the another appeal filed by Director General of Health and Doon Hospital through its Chief Medical Superintendent bearing First Appeal No. 287 of 2010 is also fit to be allowed and the impugned order passed by the District Forum is liable to be set aside and the consumer complaint is liable to be dismissed. 16. For the reasons aforesaid, both the appeals are allowed. The impugned order dated 23.07.2010 passed by the District Forum, Dehradun is set aside. The consumer complaint No. 105 of 2008 is dismissed. No order as to costs. 17. Let the copy of this order be placed in the file of First Appeal No. 287 of 2010.