Haryana

StateCommission

A/1022/2015

DINESH KUMAR - Complainant(s)

Versus

DOCTOR KAMAL YADAV - Opp.Party(s)

JITENDER5 K.SEHRAWAT

02 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No.           1022 of 2015

Date of Institution:01.12.2015      

Date of Decision: 02.08.2016

 

Dinesh Kumar minor son of Gajender Singh, caste Ahir, resident of Village Atali, Tehsil Narnaul, District Mahendergarh, minor under the Guardianship of Gajender Singh son of Sh. Shimbhu Dayal, caste Ahir, resident of Village Atali, Tehsil Narnaul, District Mahendergarh.

                             Appellant-Complainant

Versus

1. Doctor Kamal Yadav, Rao Matadeen Memorial Hospital, Near Bus Stand, Rewari Road, Narnaul, Tehsil Narnaul, District Mahendergarh (Haryana).
2. The Oriental Insurance Company Limited, Mahendergarh Road, Narnaul through Manager.

                                      Respondents-Opposite Parties

 

 

CORAM              Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

                                                                                      

Argued by:          Shri Jitender K. Sehrawat, Advocate for the appellant.

                             Shri Sandeep Kumar Yadav, Advocate for respondent No.1.   

                             Ms. Swatanter Kapoor, Advocate for the respondent No.2

 

                                                   O R D E R

 

NAWAB SINGH, J

 

This appeal has been filed by Dinesh Kumar-complainant, 15 years old, against the order dated October 28^th, 2015 passed by District Consumer Disputes Redressal Forum, Narnaul (for short, ‘District Forum’) whereby complaint filed under Section 12 of the Consumer Protection Act, 1986 claiming compensation of Rs.5,00,000/- on account of medical negligence of Dr. Kamal Yadav-opposite party No.1, was dismissed.

2.      The case of the complainant is that on August 1^st, 2007, complainant visited the hospital of Dr. Kamal Yadav of Narnaul (for short, ‘Medical Officer’) with the complaint of abdominal pain.  He was examined and prescribed a few medicines vide prescription slip Exhibit C-3.  He did not get any relief.  He again visited the hospital on August 02^nd, 2007 and another medicine was prescribed by Medical Officer.  After taking the medicine, he did not get any relief.  The doctor advised him to get the ultrasound done and asked him to come again.  After getting the ultrasound, he visited the hospital of Medical Officer, who prescribed another medicine and also gave intramuscular injection.  He did not get any relief.  He again visited the hospital on August 03^rd, 2007.  The Medical Officer advised him to get himself checked from Gangaria Hospital, Narnaul.  He visited there, where he was informed that on account of intramuscular injection, his left foot was effected and it would take sufficient time in recovery.  He did not get any relief and got himself examined at Santokba Durlabhji Memorial Hospital cum Medical Research Institute, Jaipur.  He also got treatment from PGIMS, Rohtak, Patanjali Yogpeeth, Haridwar, All India Institute of Medical Sciences, New Delhi.  Inspite of treatment taken by him from various hospitals, his left foot could not work properly.  He became disabled to the extent of 25% on account of weakness of left foot vide disability certificate issued by PGIMS, Rohtak.  It was pleaded by him that he has spent Rs.1.00 lac on his treatment besides claiming compensation of Rs.5.00 lacs towards deficiency in service and medical negligence in his treatment by the Medical Officer. 

3.      Gajender Singh, father of complainant also lodged First Information Report dated August 29^th, 2007 (Exhibit C-19) against the Medical Officer. Medical Officer was charge sheeted and acquitted by Special Judicial Magistrate, Narnaul vide judgment dated January 14^th, 2012 (Exhibit R-7). 

4.      Aggrieved of the judgment of the Special Judicial Magistrate, Criminal Appeal No.9 of 2012 was filed before Sessions Judge, Narnaul but the same was dismissed vide order dated August 01^st, 2013 (Exhibit R-8). 

5.      The Medical Officer filed written version stating that on August 01^st, 2007, complainant was brought to his hospital having pain in his abdomen.  He prescribed medicines.  He did not get relief.  He again came to him.  He advised him to get the ultrasound done.  After getting the ultrasound, he came to him with report.  The report was normal.  He again prescribed medicines.  He never administered injection to the complainant.  Thereafter, he never visited his hospital.  He never asked him to visit Gangaria Hospital. 

6.      Learned counsel for the parties have been heard.  Record has been perused.

7.      To prove the negligence of the Medical Officer, learned counsel for the complainant has only relied upon a small piece of paper (Exhibit C-2) on which ‘Voveran’ was written and stated that on account of administering the Intramuscular Injection of Voveran, the complainant has become 25% disabled.

8.      The Medical Officer in his statement dated September 22^nd, 2009 has stated that paper slip (Exhibit C-2) was written in his hand but the same was not for the complainant. For the sake of arguments, if it is presumed that the intramuscular injection was administered on the prescription of Medical Officer by the compounder, as alleged by the complainant, even then it cannot be said that there was any medical negligence on the part of the medical officer. In Pediatrics in Review (Exhibit R-6), it is held as under:-

                   “The most common serious complications of intramuscular injections in children are muscle contractures and nerve injury. Muscle contracture occurs most commonly after injections in the anterior and lateral thigh, and sciatic nerve injury is the most frequently reported serious complication of the gluteal area. The technique of administering intramuscular injections involves attention to the appropriate site of needle insertion, needle size, and angle of injection. Suggested techniques with illustrations are included. The appropriate site of injection depends upon the age and size of the child. Multiple injection sites may be preferable in some cases. Compliance with meticulous technique may reduce the incidence of complications; however, complications can occur in spite of every appropriate precaution.”

 

9.      What constitutes medical negligence is now well established through a litany of judgments. Hon’ble Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 has observed as under:-

 “1. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.

 2.  Negligence in the context of medical profession necessarily calls for a treatment with a difference.  To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply.  A case of occupational negligence is different from one of professional negligence.  A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional.  So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.  When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.  So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.

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

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

 5.  Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence.  It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law.  Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

10.    In Martin F D’Souza Vs. Mohd. Ishfaq  (2009) 3 SCC 1, the Hon’ble Supreme Court reaffirmed the above principles for determination of negligence by a medical practitioner and observed as under:-

“From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.”  

 

11.    For the reasons recorded supra, the conclusion becomes irresistible that complainant has failed to make out any case of medical negligence against Dr. Kamal Yadav. Thus, the appeal is dismissed.

         

Announced: 02.08.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

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