Medical Negligence established if conduct falls below the standards of a reasonably competent practitioner

Anil Kumar Singh Vs Jitendra Kr. Singh (NCDRC Delhi)

Medical Negligence would be established if conduct falls below the standards of a reasonably competent practitioner in the field

Conclusion: In present facts of the case, the NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION (NCDRC) have allowed the Revision Petition in favour of the Complainant as medical negligence of the doctor was established as the Complainant was able to discharge its initial burden of proof.

Facts: In present facts of the case, the present Revision Petition has been filed by the Petitioner against Respondent under section 21 (b) of Consumer Protection Act 1986, against two separate orders dated 31.08.2016 of the State Consumer Disputes Redressal Commission Uttar Pradesh and order dated 18.07.2013 of Balia District Consumer Disputes Redressal Forum.

Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records were that in the night of 07.08.2010, two bones of complainant’s wife, got fractured and in the morning of 08.08.2010 at about 4.00 a.m., complainant got admitted his wife in the nursing home of the opposite party on the same day. Left leg was operated of his wife and installed steel rod in the fractured leg and she got discharged from the nursing home on 20.08.2010. The Opposite Party took Rs. 12000/- towards operation and Rs.24,000/- towards other expenses but there was no relaxation in the pain of the leg of the wife of complainant. The opposite party told that it will be fine and when the pain did no subside, she got herself examined from another Doctor on 09.11.2010 and after conducting X-ray and examination, she was told that due to installation of thick steel rod with negligence, it busted the bone and has damaged the knee due to long rod and opined for visiting the BHU. Even in BHU, it was suggested that rod will be removed and gave estimate of operation of Rs.2 lacs. On being informed, the opposite party told that since negligence has been committed due to his action during operation, opposite party will himself remove the rod and she will be fine. Due to financial constraint, the rod was got removed through Opposite Party on 11.03.2011. The opposite party charged Rs. 15,000/- but even thereafter, there was no improvement in her pain. Due to negligence of the opposite party, the wife of complainant is not able to carry out her daily routine work without support and also not able to bring up the children. The left leg of his wife got thinner. The Complainant got examined his wife from various doctors at Banaras and the Apex Hospital gave an estimate of Rs.6 lacs for re-operation of the busted bone of left leg and damaged knee. The complainant has already spent Rs.4,00,000/- on the treatment of his wife. Being aggrieved of the said act of the Opposite Party, the Complainant filed a CC before the District Forum. The District Forum partly allowed the Complaint. Being aggrieved of the said order of the District Forum, both Petitioner and the Respondent appealed in the State Commission and State Commission vide two separate orders dated 31.08.2016 dismissed the FA No. 1922 of 2013 filed by the Petitioner for enhancement of compensation and allowed the appeal of the Respondent in Appeal No. 1729 of 2013. Hence, the Petitioner is before this Commission in the present RP.

The NCDRC observed that whether OP has committed medical negligence due to which wife of the complainant has suffered, the complainant has contended that on the basis of statement of his wife, prescription of other doctor and affidavits, it stands established. However, the OP contended that documents of other doctors were forged, evidence of any doctor or otherwise has not been placed on record. District Forum in its order has observed that due to improper installation of the steel rod by the OP at the time of first operation, problem has arisen, OP has not come with clean hands and has also admitted the factum of removal of steel rod. The circumstances itself speak for itself, and negligence of OP is established.

Complainant has clearly stated that it was due to financial constraints that rod was got removed from the OP on 11.03.2011. The State Commission has observed that OP provided best treatment to the best of his ability and no intentional negligence of OP is proved. On going through the entire facts and circumstances of the case, the NCDRC agreed with the findings of the District Forum that there was a clear negligence on the part of the OP. The mere fact that Complainant has again got his second operation done from the same OP does not absolve the OP from his negligence at the time of first operation.

Reliance was placed upon the Judgment of Nizam Institute of Medical Sciences Vs. Prasanth S.Dhananka & Ors. (2009) 6 SCC 1, wherein it was observed as under :

“32. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.”

On basis of the above, it was observed that there was a negligence on the part of Respondent Doctor and State Commission went wrong in setting aside a well reasoned order of the District Forum. Accordingly, Revision Petition was allowed, order of the State Commission was set aside and order of the District Forum was restored.

FULL TEXT OF THE JUDGMENT/ORDER OF NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

1. The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21 (b) of Consumer Protection Act 1986, against two separate orders dated 31.08.2016 of the State Consumer Disputes Redressal Commission Uttar Pradesh (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.1729 of 2013 and 1922 of 2013 in which order dated 18.07.2013 of Balia District Consumer Disputes Redressal Forum (referred to as District Forum) in Consumer Complaint (CC) no. 151 of 2011 was challenged, inter alia praying for setting aside the orders dated 3 1.08.2016 of the State Commission.

2. Both the Petitioner and Respondent filed separate FA in the State Commission against the order of the District Forum, which was disposed vide two separate orders dated 08.2016. The Appeal No. 1922 of 2013 was filed by the Petitioner / complainant for enhancement of the compensation, while Appeal No. 1729 of 2013 was filed by the Respondent / Opposite Party for setting aside the order dated 18.07.2013 of the District Forum.

3. While the Revision Petitioner(s) (hereinafter also referred to as Complainant) was Appellant in FA No. 1922 of 2013 and Respondent in FA No. 1729 of 2013, Respondent (hereinafter also referred to as OP) was Appellant FA No. 1729 of 2013 and Respondent in FA No. 1922 of 2013 before the State Commission in the Appeals, the Revision Petitioner was Complainant and Respondent was Opposite Party before the District Forum in the CC no 151 of 2011.

4. Notice was issued to the Respondent(s) on 22.05.20 17. Parties filed Written Arguments/Synopsis on 14.07.2017 and 16.08.2023 respectively.

5. Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that in the night of 07.08.2010, two bones of complainant’s wife, namely, Reena got fractured and in the morning of 08.08.2010 at about 4.00 a.m., complainant got admitted his wife in the nursing home of the opposite party on the same day. Dr. Jitender Kumar – OP operated left leg of his wife and installed steel rod in the fractured leg and she got discharged from the nursing home on 20.08.2010. The Opposite Party took Rs. 12000/- towards operation and Rs.24,000/- towards other expenses but there was no relaxation in the pain of the leg of the wife of complainant. The opposite party told that it will be fine and when the pain did no subside, she got herself examined from Dr. Sujit Kumar on 09.11.2010 and after conducting X-ay and examination, she was told that due to installation of thick steel rod with negligence, it busted the bone and has damaged the knee due to long rod and opined for visiting the BHU. Even in BHU, it was suggested that rod will be removed and gave estimate of operation of Rs.2 lacs. On being informed, the opposite party told that since negligence has been committed due to his action during operation, opposite party will himself remove the rod and she will be fine. Due to financial constraint, the rod was got removed through Opposite Party on 11.03.2011. The opposite party charged Rs. 15,000/- but even thereafter, there was no improvement in her Due to negligence of the opposite party, the wife of complainant is not able to carry out her daily routine work without support and also not able to bring up the children. The left leg of his wife got thinner. The Complainant got examined his wife from various doctors at Banaras and the Apex Hospital gave an estimate of Rs.6 lacs for re-operation of the busted bone of left leg and damaged knee. The complainant has already spent Rs.4,00,000/- on the treatment of his wife. Being aggrieved of the said act of the Opposite Party, the Complainant filed a CC before the District Forum. The District Forum partly allowed the Complaint. Being aggrieved of the said order of the District Forum, both Petitioner and the Respondent appealed in the State Commission and State Commission vide two separate orders dated 3 1.08.2016 dismissed the FA No. 1922 of 2013 filed by the Petitioner for enhancement of compensation and allowed the appeal of the Respondent in Appeal No. 1729 of 2013. Hence, the Petitioner is before this Commission in the present RP.

6. Petitioner has challenged the Order dated 31.08.2016 of the State Commission mainly on the following grounds :

a. The State Commission ought to have obtained the report of medical experts or Board of Doctors and State Commission should have considered the important aspect that the complainant was never asked for obtaining the report of Medical experts.

b. The State Commission did not direct the Petitioner for obtaining expert report regarding negligence nor asked the Petitioner and the respondent for submitting treatment record and it was the duty of Consumer Forum to send the complete record of treatment for obtaining expert opinion.

c. Even the respondent has not placed anything on record which could rebut the contention of the Petitioner regarding medical negligence on the part of the doctor.

d. Respondent should have knowledge and at-least must have checked and should have measured the thickness of the steel rod to be implanted in the leg of the Petitioner’s wife but Petitioner ignored the same or intentionally planted the same.

e. Member of the State Commission was not from the Medical field.

f. Testimony of the petitioner and the witness produced by the petitioner were discarded by the State Commission.

g. State Commission itself has not obtained the expert opinion but imposed that liability upon the Petitioner.

7. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

7.1. Counsel for the Petitioner repeated the points which are stated in para 6, grounds for challenging the order of the State Commission, hence the same are not being repeated here. The counsel has relied on the following judgments of the Hon’ble Supreme Court :

a. State of Punjab Vs. Shiv Ram and Ors. ( VI 2005 SLT 498)

b. P.Shanta’s case ( 1995) 6 SCC

c. Jacob Mathew’s case ( 2005) 6 SCC 1

d. Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole & Another ( 1969) 1 SCR 206.

7.2. Counsel for the Respondent argued that respondent has not done any negligence or deficiency in performing his medical duties. Reliance has been placed on the following judgments of the Hon’ble Supreme Court:

a. 2009 NCJ 193 (SC) Martin F D’Souza Versus Mohd. Ishfaq

b. 2010 NCJ 177 (SC) Dr. C.P. Sreekumar M.S.(Ortho) Vs. S.Ramanujam

7.3. Respondent has contended that the wife of the Petitioner has not taken proper care and routine check-up from the respondent. The Petitioner does not fall under the category of consumer as it is wife of the Petitioner who had taken treatment from the respondent who is still alive and, therefore, petitioner had no right to file a complaint on her behalf. Even the respondent’s hospital is a charitable institution and nothing was charged from the petitioner’s wife on account of operation and medical expenses. Counsel relied on the following orders of Hon’ble Supreme Court and National Commission : 2014 NCJ 43 (SC) Shri P.N.Gupta Vs. The New India Assurance Company Ltd., ( 2013) CPJ 505 (NC) Amita Sharma Vs. BHEL & Ors.

7.4. Counsel further argued that Petitioner had filed forged and fabricated documents of Dr.Surjeet Kumar, Dr. A.K.Rai and Sunder Lal Hospital, BHU, Apex Hospital and no medical expert proof has been submitted by the Petitioner.

8. OP has contended that patient is alive, hence Complainant has no right to file the Complaint because Complainant is not a Consumer and there is no authority letter from the patient. On this, the District Forum has observed that Complainant is husband of the patient. Patient has also filed her evidence / affidavit, stating that Complainant is maintaining her family, Complainant is Consumer under the Act, he is an interested Consumer, hence Complaint is maintainable. We tend to agree with the observations of the District Forum in this regard. Patient in her affidavit filed before the District Forum has clearly stated that due to her illness, she has authorized her husband to file Complaint before the District Forum and he should be treated as my Co-participant and Agent.

9. OP has further contended that forged and fabricated documents of Dr. Sujeet Kumar, A.K.Rai, Sir Sunder Lal Hospital, BHU and Apex Hospital has been filed. We have gone through the copies of these documents and do not find any reason to disbelieve the same in the absence of any evidence to the contrary filed by the OP that these are forged / fabricated documents.

10. OP further contended that nothing was charged from the Patient on account of operation and medical expenses, being a charitable institution. To this, complainant has clearly stated that OP took Rs. 12,000/- for the first operation and Rs.24,000/- towards other expenses and charged Rs. 15,000/- for the second operation.

11. Coming to the main issue as to whether OP has committed medical negligence due to which wife of the complainant has suffered, the complainant has contended that on the basis of statement of his wife, prescription of other doctor and affidavits, it stands established. However, the OP contended that documents of other doctors were forged, evidence of any doctor or otherwise has not been placed on record. District Forum in its order has observed that due to improper installation of the steel rod by the OP at the time of first operation, problem has arisen, OP has not come with clean hands and has also admitted the factum of removal of steel rod. The circumstances itself speak for itself, and negligence of OP is However, the State Commission in its observations / findings have stated that if there was negligence on the part of the OP – doctor and there was no faith in him, why the complainant took his wife again to the OP for operation on 11.03.2011. We do not agree with this reasoning of State Commission. Complainant has clearly stated that it was due to financial constraints that rod was got removed from the OP on 11.03.2011. The State Commission has observed that OP provided best treatment to the best of his ability and no intentional negligence of OP is proved. On going through the entire facts and circumstances of the case, we tend to agree with the findings of the District Forum that there was a clear negligence on the part of the OP. The mere fact that Complainant has again got his second operation done from the same OP does not absolve the OP from his negligence at the time of first operation.

12. Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1 has held that degree of negligence in criminal negligence and negligence in civil law are jurisprudentially different – to fasten liability in criminal law, degree of negligence has to be higher than negligence enough to fasten liability for damages in civil law. Negligence which is neither gross nor of higher degree may provide a ground for action in civil law. Hence, it is clear that for negligence under civil law, negligence need not be gross or of a higher level, which are essential to fasten liability in criminal law. Hon’ble Court in the Jacob Mathew Case (supra) further stated that there is a marked difference as to the effect of evidence viz. In civil proceedings, a mere preponderance of probability is sufficient, and defendant is not necessarily entitled to the benefit of every reasonable doubt. At the same time, in a claim of medical negligence, it is enough for the defendant to show that the standard of care and skill attained was that of an ordinary competent medical practitioner exercising an ordinary degree of professional skill and that test for medical negligence laid down in Bolam case was applicable in India. Hon’ble Court also observed that the essential components of negligence, as recognized, are three “duty”, “breach” and “resulting damage” that is to say

i. The existence of a duty to take care, which is owed by the defendant to the complainant.

ii. The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and

iii. Damage, which is both causally connected with such breach and recognised by the law, has been suffered by the complainant.

13. In Nizam Institute of Medical Sciences Vs. Prasanth S.Dhananka & Ors. (2009) 6 SCC 1, Hon’ble Supreme Court observed as under :

“32. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.”

14. In Martin in D’Souza Vs. Mohd. Ishfaq (2009) 3 SCC 1, Hon’ble Supreme Court held as under

“……………………. 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 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.”

“34. A medical practitioner is not liable to be held negligence simply because things went wrong from mischance or is adventure ……….. He would be liable only when his conduct fell below that of the standards of a reasonably competent practitioner in his field.”

“36. An error of judgment may or may not be negligent. It depends on the nature of the error.”

15. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties and case laws cited, we are of the view that there was a negligence on the part of Respondent Doctor and State Commission went wrong in setting aside a well reasoned order of the District Forum. Accordingly, Revision Petition is allowed, order of the State Commission is set aside and order of the District Forum is restored. OP ( Respondent herein) shall implement the order within 2 months from date of this order.

16. The pending IAs in the case, if any, also stand disposed off.