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2014 DIGILAW 655 (ORI)

Kar Clinic and Hospital v. Swarna Prava Mishra

2014-09-29

B.K.NAYAK

body2014
JUDGMENT B. K. NAYAK, J. - Order dated 18.7.2012 passed by the learned 2nd Additional Civil Judge (Sr. Division), Bhubaneswar in Money Suit No. 242 of 2007 rejecting defendants application for hearing the suit on preliminary issue is the subject matter of challenge in this civil revision. 2. The present opposite party as plaintiff has filed Money Suit No. 242 of 2007, now pending in the Court of the 2nd Additional Civil Judge (Sr. Division), Bhubaneswar, claiming damages from the defendants petitioners for medical negligence, The plaint averments clearly describe the manner of tests and operation conducted on the husband of the plaintiff for removal of gall bladder stones and how there was post operation negligence, in attending the patient and demanding more money beyond the contract package, which was also deposited by the plaintiff and the patient died only two days after the operation. It is also clearly alleged that ERCP test which was required to be conducted on the patient before the operation was not conducted as the hospital probably did not want to meet expenditure on that head. 3. The defendants filed a petition under Order 14 Rule 2, CPC for deciding the question, “whether the suit is maintainable without obtaining an opinion from the Medical Board that there was medical negligence by the defendants" as a preliminary issue. The petition was resisted by the plaintiff on the ground that the point sought to be decided as a preliminary issue does not fall within the ambit of Order 14, Rule 2, CPC, inasmuch as it is neither a pure question of law nor it relates to the jurisdiction of the Court to entertain the suit. 4. After hearing counsel for the parties the Trial Court, by the impugned order rejected the petition holding that the question is one of mixed question of law and fact and that it is not a question relating to jurisdiction of the Court. 5. In assailing the impugned order the learned counsel for the petitioners submitted that it is the view of the Hon'ble Apex Court as decided in the case of Martin F. D'Souza v. Mohd. 5. In assailing the impugned order the learned counsel for the petitioners submitted that it is the view of the Hon'ble Apex Court as decided in the case of Martin F. D'Souza v. Mohd. Ishfaq, 2009 (2) SCALE 629 that before proceeding further a Court shall first refer the matter to a competent Doctor or committee of Doctors/Specialists in the field relating to which the medial negligence is alleged and only if the Doctor or Committee reports that there is a prima facie case, of medical negligence should notice be issued to the concerned Doctor/Hospital. Learned counsel appearing for the opposite party submitted that the decision on which the learned counsel for the petitioners places reliance is one with respect to a consumer dispute for deficiency in medical service and that the law laid down therein cannot beheld applicable to decide a question of hearing the suit on a preliminary issue. 6. There is no dispute over the proposition .that the Civil Court has jurisdiction to entertain a suit for damages for the alleged negligence of the defendant including medical negligence. Legally the Civil Court is duty bound to give his decision on all issues in the suit and that an issue can be decided as a preliminary issue only if it is one of law only, and relates to the jurisdiction of the Court, or a bar to the suit created by any law for the time in force. Order 14, Rule 2, CPC is extracted hereunder: "2. Court to pronounce judgment on all issues - (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the, same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, if may try that issue first if that issue relates to – (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being, in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." 7. It is apparent from the provision of Order 14, Rule 2, CPC that an issue cannot be decided as preliminary issue unless two conditions are satisfied, (1) that the issue is an issue of law and (ii) that it relates to the jurisdiction of the Court, or to a bar to the suit created by any law for the time being in force. 8. A three Judge Bench of the Hon'ble Supreme Court in the case of Indian Medical Association v. V.P.Shantha and others, (1995) 6 SCC 651 have held that remedy against medical practitioners, hospitals and nursing homes for medical malpractice or negligence is available under the Consumer Protection Act, 1986 to affected persons as consumers for paid service. The decision in the case of Martin F.D'Souza (supra) on which the learned counsel for the petitioners' relies arose out of a consumer dispute of medical negligence where it has been held as follows: "117. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Form or Criminal Court should first refer the matter to a competent doctor of committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action." 9. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action." 9. The decision in Martin F.D'Souza (supra) was noticed by the Apex Court in a subsequent decision reported in (2010) 5 SCC 513 ); V. Krishna Rao v. Nikhil Super Specialty Hospital and another, wherein it was held that before forming an opinion that expert evident is required, the consumer forum must reach a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by members of the forum without assistance of experts. The Bench further held that decision in Martin F.D'Souza (supra) cannot be treated as binding precedent and the direction in the said judgment that the Consumer Fora and Criminal Courts should get the opinion of a competent Doctor or Committee of Doctors and notice should be issued to the respondent Doctor only if a competent Doctor or Committee opines that there is prima facie proof of medical negligence, is contrary to decisions of larger Bench of the Supreme Court. Even the proposition laid down in Martin F.D'Souza (supra) only speaks about consumer disputes and criminal prosecution for medical negligence and it does not deal with the jurisdiction of the Civil Court with respect to a suit, nor the decision was considering the question of deciding an issue in a suit as a preliminary issue. Therefore the principle laid down therein has no application to the present case. 10. It is evident from the pleadings in the plaint that detail description of facts constituting negligence on the part of the defendants - have been alleged constituting cause of action for the suit. Proof of the pleadings in the plaint depends on evidence to be led by the plaintiff and no law requires or creates any bar that in the absence of an expert medical opinion with regard to prima facie case of medical negligence, cause of action would not arise and the suit for damages would not be maintainable. Proof of the pleadings in the plaint depends on evidence to be led by the plaintiff and no law requires or creates any bar that in the absence of an expert medical opinion with regard to prima facie case of medical negligence, cause of action would not arise and the suit for damages would not be maintainable. Question of negligence on the part of the defendants in the instant suit is not a pure question of law, nor does it relate to the jurisdiction of the Civil Court. Therefore, the question cannot be decided as a preliminary issue and as such this Court finds no error in the impugned order passed by the Court below. The revision is therefore dismissed. Revision dismissed.