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2017 DIGILAW 420 (ORI)

Tulasi Bibi v. State of Orissa

2017-04-18

D.DASH

body2017
JUDGMENT : 1. The petitioner who is the mother of deceased Sudhir Kumar Singh has field this writ application praying for a direction of this Court to the opposite parties for payment of compensation of Rupees ten lakh on account of death of her son in course of treatment in SCB Medical College & Hospital alleging gross negligence on the part of all those in-charge of the treatment. She has further prayed for a direction to the opposite parties for payment of Rupees five lakh for the mental pain and agony as well as for the damage suffered by her. 2. Petitioner’s case is that:- Sudhir Kumar Singh was admitted in Bed No. 16 of SCB Medical College and Hospital in the Medicine Ward on 03.07.1995. The treatment being given after admission, his condition began improving. It is said that on 05.07.1995, Sudhir was feeling well enough to talk. On that day around 3.15 p.m., one Jyotirmayee Nayak who was then a first year nursing student came and administered the fatal doses injections of “Rubiqin” intravenous. It is stated that within ten minutes of said administration of injection, Sudhir died. In view of said death of Sudhir immediately after the administration of the fatal doses as above by a first year nursing student, there was lot of hue and cry. The State Government then caused an enquiry into the incident by the Revenue Divisional Commissioner with direction to submit the report. Pursuant to the said direction, the Commissioner conducted a detail inquiry and submitted the report. As stated by the petitioner, the conclusions stand that the death of Sudhir occurred due to negligence of the doctors and the said nursing student in administering the doses of ‘Rubiquin’ injection directly in the vein without following the prescription and for the in experience . The State Government in view of a said report paid a sum of Rupees one lakh to the bereaved family of Sudhir as ex-gratia. It is further stated that the nursing student who administered the dose was in experienced and ignorant to the extent that she did not even know the specification of the medicine as also the required dose so as to be given at a time. It is further stated that the nursing student who administered the dose was in experienced and ignorant to the extent that she did not even know the specification of the medicine as also the required dose so as to be given at a time. Therefore, while already 600 mg of ‘Rubiquin’ had been administered on the patient, she further administered two more doses of Rubiquin injection of 600 mg each to the patient in vein directly which lead to the instantaneous death of Sudhir. It is next stated that when such injections were pushed, no doctor was present and the department was then being manned by one Post Graduate Student doctor. With the above, attributing gross negligence on the part of all the persons in-charge of the treatment of the deceased in SCB Medical College and Hospital; compensation has been claimed. 3. Opposite party no. 1 to 3 in the counter have stated that:- In the instant case, the staff of the Medical College and Hospital while treating the petitioner’s son had made all endeavours in the direction, so that he would be brought to normal condition early and for his recovery. The doctors took all steps to treat the suffering patient for recovery. The death is said to be due to cardiac respiratory failure which is the medical phenomenon that can happen at any the stage of distress. It is next stated that deceased was seriously ill when was admitted on 03.07.1995. So, immediately, he was given necessary treatment being diagonised to be a case of cerebral malaria. Rubiquin injection being the best medicine which is usually administered intravenously with quinine dextrose being the right choice, and had therefore been prescribed. It has been averred that introquinine dextrose is given in the hospital by trained persons and that was also so done in the instant case. It is stated that although after initial treatment, the patient showed some improvement yet he was not out of danger. It is only when a patient is felt out of danger, the quinine tablet is orally administered. It is stated that removal of feeding tube has nothing to do with the administration of quinine as it was the stage for trial feeding. It is stated that the deceased could not have been administered quinine orally as he had not recovered fully. It is stated that removal of feeding tube has nothing to do with the administration of quinine as it was the stage for trial feeding. It is stated that the deceased could not have been administered quinine orally as he had not recovered fully. On the faithfully night when the routine hour was over, the in-service Post Graduate student who was a senior doctor was on his duty. There was trained staff at his disposal. The attending staff had all the instructions with regard to the administration of medicines. Therefore, it is said that there was no negligence and no such dereliction of duty. The cardiac respiratory failure resulting death can take place even if the quinine is given directly or intravenously. It is said to be an occasional phenomenon which unfortunately happened in case of the petitioner’s son. The allegation that death was due to direct intravenous administration of quinine is denied as cardiac failure could have been caused even without such administration. It is next however said that the persons responsible for administering ‘fatal’ injection have been duly proceeded with. It is stated that after the enquiry by the Commissioner and or receipt of the report, necessary actions have been taken after due consideration including payment of ex-gratia to the members of the bereaved family. 4. The position of law has been clearly expressed in case of Common Cause, A Regd. Society v. Union of India and others, AIR 1999 (SC) 2979 ; wherein it has been observed that under Article 226 of the Constitution, the High Court has been given the power and jurisdiction to issue appropriate Writs in the nature of Mandamus, Certiorari, Prohibition, Quo-Warranto and Habeas Corpus for the enforcement of Fundamental Rights or for any other purpose. Thus, the High Court has jurisdiction not only to grant relief for the enforcement of Fundamental Rights but also for “any other purpose” which would include the enforcement of public duties by public bodies. Essentially, under public law, it is the dispute between the citizen or a group of citizens on the one hand and the State or other public bodies on the other, which is resolved. This is done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. This is done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. The exercise of constitutional powers by the High Court and the Supreme Court under Article 226 or 32 has been categorized as power of “judicial review”. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Article 14 read with other Articles dealing with Fundamental Rights, every executive action of the Government or other public bodies, including Instrumentalities of the Government, or those which can be legally treated as “Authority” within the meaning of Article 12, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of Supreme Court under Article 32 or the High Courts under Article 226 and can be validly scrutinized on the touchstone of the Constitutional mandates.” 5. In the earlier decision, in case of, Life Insurance Corporation of India v. Escorts Limited & Ors, AIR 1986 SC 1370 it has been held that: “Broadly speaking, the Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances”. 6. Many aspects of the Public Law concept being considered, it has been held that in view of the law undergoing a change by subsequent decisions even though the petition relates to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226. 6. Many aspects of the Public Law concept being considered, it has been held that in view of the law undergoing a change by subsequent decisions even though the petition relates to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226. The Public Law remedies have also been extended to the realm of tort. In various decisions, the courts have entertained petitions under Article 226 of the Constitution on a number of occasions and has awarded compensation to the petitioners who had suffered personal injuries at the hands of the officers of the Government. The causing of injuries, which amounted to tortuous act, was compensated by the Hon’ble Supreme Court in many of its decisions, beginning from Rudul Sah v. State of Bihar; AIR 1983 SC 1086 , also Bhim Singh v. State of Jammu & Kashmir; AIR 1986 SC 494 , People’s Union for Democratic Rights v. State of Bihar; AIR 1987 SC 355 , People’s Union for Democratic Rights Thru. Its Secy v. Police Commissioner; Delhi Police Headquarters; (1989) 4 SCC 730 , Saheli, A Woman’s Resources Centre v. Commissioner of Police, Delhi; AIR 1990 SC 513 , Arvinder Singh Bagga v. State of U.P.; AIR 1995 SC 117 , P.Rathinam v. Union of India; (1989) Supp. 2 SCC 716, In Re: Death of Sawinder Singh Grower; (1995) Suppl.(4) SCC 450, Inder Singh v. State of Punjab; AIR 1995 SC 1949 , D.K.Basu v. State of West Bengal; AIR 1997 SC 610 . 7. Concerning cases of custodial death and those relating to medical negligence, the Hon’ble Apex Court awarded compensation under Public Law domain in Nilabati Behera v. State of Orissa; AIR 1993 SC 1960 , State of M.P. v. Shyam Sunder Trivedi; (1995) 4 SCC 262 , People’s Union for Civil Liberties v. Union of India; AIR 1997 SC 1203 , and Kaushalya v. State of Punjab; (1996) 7 SCALE (SP) 13, Supreme Court Legal Aid Committee v. State of Bihar; (1991) 3 SCC 482 , Dr. Jacob George v. State of Kerala; (1994) 3 SCC 430 , Paschim Bangal Khet Mazdoor Samity v. State of West Bengal & others; AIR 1998 SC 223 , and Mr. Manju Bhatia v. N.D.M.C; (1996) 1 SCC 490 . 8. Jacob George v. State of Kerala; (1994) 3 SCC 430 , Paschim Bangal Khet Mazdoor Samity v. State of West Bengal & others; AIR 1998 SC 223 , and Mr. Manju Bhatia v. N.D.M.C; (1996) 1 SCC 490 . 8. In view of the above settled position of law as propounded by the Apex Court, a petition under Article 226 of the Constitution still stands for consideration where pubic functionaries were involved and the matters relate to the violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the law not withstanding that a suit would be filed for damages under Private Law. 9. The instant case relates to medical negligence in course of treatment of the deceased in the hospital when it is said that there has not been negligence in the discharge of the duties in utter disregard in the line of treatment prescribed for the deceased and inaction and ignorance of the staffs of the hospital on duty at the time by not taking the minimum care. 10. Thus it stands to consider where there was negligence on the part of the staffs of the hospital which was the proximate cause of the death of the petitioner’s son. From the report of the Commissioner it is quite evident that the enquiry was extensive one and long exercise by recording the statements of the witnesses and collection of all those documents and upon their analysis at length. The important part to be gone through for the purpose concerns the points formulated by the Commissioner regarding the circumstances leading to the death of Mr. Sudhir Singh in the hospital on 05.07.1995 and negligence in the treatment, if any caused, followed by the point no.1 the adequacy of attendance at the time of occurrence including paramedical and other staff. Very rightly two items have been dwelt upon together. The relations of the deceased patient has been examined. The Professor and the Head of Department of Medicine has also given his statement in the matter saying that he had examined the patient. The relations have stated the facts projected in the petition. 11. Very rightly two items have been dwelt upon together. The relations of the deceased patient has been examined. The Professor and the Head of Department of Medicine has also given his statement in the matter saying that he had examined the patient. The relations have stated the facts projected in the petition. 11. The Professor and the Head of Department of Medicine has stated to have diagnosed to be a case of Cerebral Malaria and to have advised administration of Rubiquin injection to the patient in 10% dextrose drip as well as other injections like Cephaxone, Epsolin and Rantac. This Rubiquin is said to be quinine the specific medicine of choice for Cerebral Malaria. The Doctor has stated that these are the standard treatments for a case of Cerebral Malaria. He had examined the deceased at 9.00 PM on 03.07.1995. At 11.00 PM the patient since had fall of blood pressure, he was given Dopamin injection in the drip to keep the blood pressure normal. He again examined the patient on 04.07.1995 around 10 AM when the patient was still serious and the blood pressure then continued to be low and therefore was given with the Dopamin injection. According to him, on 05.07.1995 around 11 ‘O’ Clock, when he examined the patient again, he marked improvement in the condition of the patient and then his blood pressure was stable. He was also having no fever then. The patient was responding to the treatment and the doctor was convinced on that though his mental condition was not very clear. The treatment therefore continued as before. According to him, he had advised to administer Rubinquin injection (600 mg.)-1 amp.-Inter Venous 8 hourly with 10% Dextrose solution. He has further stated that the standard method of administration of Rubiquin injection is through drip intravenously and that the same being cardio-toxic, if given directly in the vein, the patient may get visited with fatal consequence. However, he has reiterated the stand that the Cerebral Malaria is a high risk disease and it carries very high rate of mortality. The Assistant Professor of Medicine had also gone to examine the patient in the evening of 03.07.1995 He had last gone to the patient on 05.07.1995 around 2 PM. Then he having found the patient’s condition to be unexpectedly good had thus the hope for recovery of patient. The Assistant Professor of Medicine had also gone to examine the patient in the evening of 03.07.1995 He had last gone to the patient on 05.07.1995 around 2 PM. Then he having found the patient’s condition to be unexpectedly good had thus the hope for recovery of patient. The patient then although was conscious still had some objective signs of brain dysfunction. He of course has stated that Rubiquin injection if given directly in the vein may cause hypotension and cardiovascular collapse. The Post Graduate Student of the Medicine Department on duty in the casualty on 05.07.1995 in the afternoon has stated that having received information about serious condition of the patient when he rushed down to the bed, he found one lady House Surgeon attending the patient. The blood pressure then was not recordable and his pulse was very feeble. Then he applied Cardio-resuscitation measures, which did not yield any such positive result and went in vain. The uncle of the deceased has stated that on 05.07.1995 around 3 PM a student nurse wrote down a small note for getting 3 injections, i.e. Rubiquin, Epsolin and Ranitin. The student nurse getting those, stopped the regulator of the drip which was running at that time and started to administer Rubiquin injection directly in the vein. It is stated that after taking the Rubiquin injection, the patient became uncomfortable, passed stool on the bed and became stiff. This uncle of the deceased had in fact no idea about the complications likely to arise in the event of direct push of the said Rubiquin injection in the vein. Moreover, his version about the immediate after affects under no circumstance can be said to be exaggerated or improved as other staff including the attending P.G. Student have corroborated about the deterioration of the patient’s condition then and the time gap is very little. 12. The Commissioner has gone for further enquiry relating to purchase of Rubiquin injections and their use. The conclusion has been that there was no negligence on the part of the doctors and the supervision of the patient from time to time have been established. However, going to examine the medicine chart and upon critical examination of the statements of the staffs, then on duty, he has arrived at the conclusion that there has been negligence in administering the injections. 13. However, going to examine the medicine chart and upon critical examination of the statements of the staffs, then on duty, he has arrived at the conclusion that there has been negligence in administering the injections. 13. The following part of the report very much relevant for the purpose needs mention which is reproduced hereunder: “It has been stated by the student nurse that since one ampule of 300 mg. of Rubiquin injection was available, she asked the attendant to get another ampule of 300 mg. Rubiquin. She also wrote a note to this effect and this version of her is corroborated by the attendant also. But from the evidence collected from the District Sales Officer of P.C.I., it is clear that their Company manufactures and markets Rubiquin injection only in 2 ml. ampoules containing 600 mg. of quinine dehydrochloride. It has been specifically stated that the Company is the sole manufacturer of Rubiquin and has never manufactured 1 ml. ampule at any time. It is, therefore, very strange that the student nurse asked the attendant of the patient to get one ampule of 300 mg. of Rubiquin so that 2 such ampoules can be added to administer a dose of 600 mg of Rubiquin to the patient according to the doctors’ prescription. Miss. Binati Das, staff nurse was also examined again on this point since she had administered the Rubiquin injections earlier to the patient. She categorically stated that she had injected one ampule of Rubiquin containing 600 mg each time to the patient in 10% Doxtrose solution. I, therefore find the action of the student nurse Miss Naik very strange in this regard and it also reveals her ignorance about the specification of this injection. Dr. Sabyaschi Das has clearly stated that only 600 mg. of Rubiquin injection was prescribed and it is also clear that Miss. Binati Das, staff nurse had earlier administered only 600 mg. of Rubiquin. Therefore, the question of adding 2 ampules does not arise. Considering the above discrepancies, the statement made by Miss. Naik, student nurse that she kept the Rubiquin ampules in her pocket without administration and later she handed over the same to the Principal of the Nursing School appears to be shrouded in doubt and mystery. of Rubiquin. Therefore, the question of adding 2 ampules does not arise. Considering the above discrepancies, the statement made by Miss. Naik, student nurse that she kept the Rubiquin ampules in her pocket without administration and later she handed over the same to the Principal of the Nursing School appears to be shrouded in doubt and mystery. The most important issue that emerges is whether the student nurse had administered the Rubiquin injection directly in the vein of the patient as alleged by the attendants in spite of protest from them. The student nurse has taken a stand that she did not administer Rubiquin injection although she administered other 2 injections and made entry in the medicine chart of all three injections. She also has mentioned in her statement regarding deposit of the 2 unused Rubiquin ampoules with the Principal of the Nursing School. Miss. Nilima Kar, Sister-Tutor has stated that Miss. Naik gave the ampules to the principal but Miss Kar, sister Tutor was not present at that time. That means the student nurse handed over the Rubiquin ampules to the Principal of the Nursing School at a time when no one else was present. However, the Sister-Tutor stated that she had earlier been shown the two ampoules of Rubiquin injection by Miss Naik. The ampule purchased on 5.7.1995 from Remedy Medical Store bearing batch No.5002 Q was not among the ampules allegedly handed over to the Principal of Nursing School by Miss. Naik, student nurse. The various statements made by the Principal of the Nursing School, the Sister Tutors and the Nursing student, Miss. Naik with regard to deposit of the ampules do not appear very credible or convincing. Question arises as to where was the Rubiquin ampule bearing batch No.5002Q which was purchased on 5.7.95 from Remedy Medical Store, which should have been available with the student nurse, if her statement is to be believed that she kept the ampules in her apron pocket without administering the injection. The analysis of the evidence, and the various gaps and discrepancies in the statements as discussed lead me to a presumption that all the injections as mentioned in the Medicine chart were actually administered by the student nurse to the patient. From the entry made in the medicine chart it is also clear that the injections were given intravenously. The analysis of the evidence, and the various gaps and discrepancies in the statements as discussed lead me to a presumption that all the injections as mentioned in the Medicine chart were actually administered by the student nurse to the patient. From the entry made in the medicine chart it is also clear that the injections were given intravenously. One important thing however is that it appears from the evidence that the staff nurse Smt. Panchali Dei was available on duty in the Ward when the injections were administered. According to her statement she came at 2.25 PM on 5.7.95 to the ward although her duty hours started at 2 PM. She had not enquired about the administration of the injections to the patient. She also denies to have knowledge about administration of the injections by the student nurse. This is quite unusual since the staff nurse did not take the responsibility of administration of the injection particularly when it relates to such a serious patient. According to the statement of one of the sister Tutors of the Nursing School, Ist Year nursing students are not allowed to give intravenous injections. Since the student nurse concerned was a student of Ist year Nursing course, she should not have been allowed to administer the injections all by herself as it also appears from the evidence that while she was administering the injections, the nursing sister Nishamani Devi and staff nurse Panchali Dei were available in their seats. The student nurse also says that she administered the injections with the advice of the staff nurse. However, it is very strange that the staff nurse expressed her complete ignorance about the administration of the injections. The student nurses are learners and they have to be guided properly in doing their job. The prescription was clear that Rubiquin injection was to be given with 10% Dextrose solution. Even if the work of giving injections is given to the student nurses, that has to be done under close supervision to ensure that the proper method is being followed”. 14. “At the time of administration of the injections, Nishamani Devi, nursing sister was present in the Ward although her duty was already over since 2 PM. The staff nurse, Panchali Dei who admittedly came at 2.25 PM to duty was very much available on duty at that point of time. 14. “At the time of administration of the injections, Nishamani Devi, nursing sister was present in the Ward although her duty was already over since 2 PM. The staff nurse, Panchali Dei who admittedly came at 2.25 PM to duty was very much available on duty at that point of time. But she stated that she did not even enquire whether injections were given to the patient since she came late. The duty of the staff nurse was to immediately supervise the administration of drugs and injections to the patient and that was even more necessary when she had admittedly come to duty late. On the other hand a careless and casual approach has been adopted in this matter and a student nurse has been allowed to handle a very important duty. Later on the staff nurse has expressed her complete ignorance about the administration of the injections by the student nurse”. 15. “Dr. Sabyasachi Das, Prof. of Medicine has stated in his evidence that direct administration of Rubiquin in the vein can be fatal since quinine is a cardio-toxic drug. Therefore, his advice was to give quinine injection in the drip and his presumption was that it was being administered in the drip. Dr. Das has also given some literature of the World Health Organization regarding the management and treatment of uncomplicated Malaria which mentions that quinine remains the preferred treatment for chloroquine-resistant malaria. However, the need for prolonged courses, which give rise to high frequency side effect (some potentially dangerous) and consequently to poor compliance, suggests that it should, whenever possible, be used under supervision in hospital or where out-patients, can be monitored. It is further mentioned that since rapid intravenous push or bolus injections of quinine can cause severe or even fatal cardiovascular toxicity, the drug should never be given in this way. Ideally, quinine should be given by slow, constant, controlled rate intravenous infusion diluted in isotonic fluid (5 to 10 ml. per kg. of body weight depending on the patient’s over-all fluid balance). Dr. Das has also given extracts from the Book-“Pharmacological basis of Therapeutics” by Goodman and Gillman which mentions that therapeutic doses of quinine have little if any effect on the normal heart or blood pressure in man. When given intravenously, quinine causes a definite and sometimes alarming hypotension particularly when the injection is made rapidly. From the extract given by Dr. Das has also given extracts from the Book-“Pharmacological basis of Therapeutics” by Goodman and Gillman which mentions that therapeutic doses of quinine have little if any effect on the normal heart or blood pressure in man. When given intravenously, quinine causes a definite and sometimes alarming hypotension particularly when the injection is made rapidly. From the extract given by Dr. Das and on the basis of the effects cited by him one can safely conclude that direct intravenous administration of quinine injection in considerable dose may lead to Cardio-vascular failure”. 16. Carefully going through the report of the Revenue Divisional Commissioner submitted before the opposite party no.1 after holding detail and thorough enquiry and reading the statements of the doctors and other staff of the hospital as well as relatives of the deceased the death in the case is found to be on account of happening of cardio-vascular failure. It is also seen from the materials available at galore that no sooner the Rubiquin injection was directly given intravenously the patient became serious and died instantaneously. Therefore, this Court is persuaded to accept that the death as has occurred could not have been so happened then without the negligence on the part of the personnels in-charge of administration of the medicine and injections to the patient by scrupulously not following the advice of the doctor and the prescription relating to those time gap, mode etc. 17. In Cooke v. Midland Great Western Railway, 1909 AC 229 and Glasgow Corporation v. Taylor, (1922) 1 AC 44, the meaning of word ‘Negligence’ is stated as follows:- “Acting carelessly, a question of law or factor of mixed fact and law, depending entirely upon the nature of a duty, which the person charged with negligence has failed to comply with or perform in the particular circumstance of each case. A very convenient classification has been formulated corresponding to the degree of negligence entailing liability measured by the degree of care undertaken or required in each case, i.e. (1) ordinary, which is the want of ordinary diligence; (2) slight, the want of great diligence; and (3) gross, the want of slight diligence. A very convenient classification has been formulated corresponding to the degree of negligence entailing liability measured by the degree of care undertaken or required in each case, i.e. (1) ordinary, which is the want of ordinary diligence; (2) slight, the want of great diligence; and (3) gross, the want of slight diligence. A smaller degree of negligence will render a person liable for injury to infants than in the case of adults.” In Consumer Unity & Trust Society v. Bank of Baroda, (1995) 2 SCC 150 , the apex Court held that “Negligence” is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances. In State of Maharastra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659 : AIR 1995 SC 2499 , the apex Court held that “Negligence” is the omission to do something which a reasonable man is expected to do or a prudent man is expected to do so. In Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111 ; (1996) 4 SCC 332 , the apex Court a tort is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. In M.S.Greval v. Deep Chand Sood, (2001) 8 SCC 151 ’ AIR 2001 SC 3660 , the apex Court held as follows: “Negligence in common parlance means and imply failure to exercise due care, expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. It is caused by heedlessness or inadvertence by with the negligent party is unaware of the results which may follow from his act negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do.” 18. In Malay Kumar Ganguly v. Dr., Sukumar Mukherjee, (2009) 9 SCC 221 , the apex Court held that “negligence”, is the breach of a duty caused by the 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. Negligence means either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative term. Negligence is strictly nonfeasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act of which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or is contrary to the dictates of ordinary prudence. In Kusum Sharma v. Batra Hospital, (2010) 3 SCC 480 , the apex Court held that 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. 19. This being the meaning attached to the word “negligence” as held by the Apex Court time and again, applying the same to the present context, it is made clear that the staffs have acted in breach of their duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do. Thereby negligence in common parlance means and imply failure to exercise due care, expected of a reasonable prudent person. Therefore, in the facts and circumstances of the case in hand as it reveals from the available records and as also emanate from the rival case projected before this Court on being tested in touchstone of the settled law, the negligence on the part of the personnel in-charge of the treatment of the deceased at the relevant point of time clearly gets attributed as proximate cause of the death at that point of time and under no circumstance, the death would have occurred at that time either due to cardiovascular failure or because of the Cerebral Malaria which had been so diagnosed and even though said to have been the disease with high rate of mortality. Furthermore, the facts and circumstances of the case and the sequence of events right from the time of admission till death of the patient along with the treatment when are viewed in the cumulative, in my considered opinion the negligence clearly gets attributed to those on duty at that time in not following the prescription of the doctors in administering the injection as stated with due care which was so required to be taken with utmost sincerity in view of the serious disease that the patient was suffering from and more so when there had been quite improvement in the patient’s condition. These factors being taken together grater care and attention of all those being the need of the hour, there appears on element of lack on that score. All these rather leads one to say that in view of the manner of dealing with the patients, the doctrine of res pisa loquitur does come into play with full force. 20. The principle of res ipsa loquitur is well known. It is explained in a very illustrative passage in Clerk & Lindsell on Torts, 16th Edn., pp. 568-569, which reads as follows: “Doctrine of res ipsa loquitur. The onus of proof, which lies on a party alleging negligence is, as pointed out, that he should establish his case by a pre-ponderance of probabilities. This he will normally have to do by proving that the other party acted carelessly. Such evidence is not always forthcoming. It is possible, however, in certain cases for him to rely on the mere fact that something happened as affording prima facie evidence of want of due care on the other’s part’ res ipsa loquitur is a principle which helps him to do so’. In effect, therefore, reliance on it is a confession by the plaintiff that he has no affirmative evidence of negligence. The classic statement of the circumstances in which he is able to do so is by Erle, C.J.. ‘There must be reasonable evidence of negligence. In effect, therefore, reliance on it is a confession by the plaintiff that he has no affirmative evidence of negligence. The classic statement of the circumstances in which he is able to do so is by Erle, C.J.. ‘There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of thigs does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.’ It is no more than a rule of evidence and states no principle of law. “This convenient and succinct formula”, said Morris, L.J., “possesses no magic qualities; nor has, it any added virtue, other than that of brevity, merely because it is expressed in Latin”. It is only a convenient label to apply to a set of circumstances in which a plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. He merely proves a result, not any particular act or omission producing the result. The court hears only the plaintiff’s side of the story, and if this makes it more probable than not that the occurrence was caused by the negligence of the defendant, the doctrine res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability. It is not necessary for res ipsa loquitur to be specifically pleaded”. 21. On the anvil of the aforesaid, the death having taken place shortly after the Rubiquin injections were pushed intravenously without following the procedure prescribed by the doctor for administration of the same with 10% Dextrose solution, the conclusion also stands in that way that the death was due to negligence in the treatment. 21. On the anvil of the aforesaid, the death having taken place shortly after the Rubiquin injections were pushed intravenously without following the procedure prescribed by the doctor for administration of the same with 10% Dextrose solution, the conclusion also stands in that way that the death was due to negligence in the treatment. No such explanation is offered except merely stating that the death is due to cardio-vascular failure which can happen at any stage of distress and showing the position that Cerebral Malaria is a high risk disease carrying very high rate of mortality; when there remains the clear version of the expert doctors who had the occasion to treat the patient that the Rubiquin injection given directly in the vein may cause Hypotension and Cardio-vascular collapse since it is cardio toxic and thus is always advised to be given in 10% dextrose solution which is definitely to avoid such toxic effect so as to create further complication leaving no other better choice in treatment of a patient as in the case. The personnel in-charge of the treatment of the patient of such serious disease having done the job at the initial stage when had found the improvement in the condition of the patient with the decision to go for direct feeding for test shake by removing feeding pipe, much more care was needed and expected as of duty when the patient was found to be conscious as stated by the doctor. The medical care in all respect from that point of time ought to have been with more care and ought to have been with much more vigilance lest no such slight mistake takes place, so as to stand in the way of the patient’s improvement or to cause any deterioration which is clearly found to be lacking in this case. 22. For the aforesaid discussion and reasons, the State cannot shift the responsibility in compensating the petitioner, who is the mother of the deceased-patient for the untimely death of her son at such prime age when he was prosecuting his studies in Post Graduate level in History with good academic record. In view of the above, taking all the relevant factors into consideration, this Court holds that the State is liable to pay the compensation of Rs,3,00,000/- (three lakh) to the petitioner. 23. In view of the above, taking all the relevant factors into consideration, this Court holds that the State is liable to pay the compensation of Rs,3,00,000/- (three lakh) to the petitioner. 23. The writ application is accordingly disposed of directing the opposite party no.1 to pay a sum of Rs.3,00,000/- (three lakh) towards compensation on account of death of the petitioner’s son within a period of three months hence, failing which it would carry interest at the rate of 6% per annum with effect from today till payment.