Chandigarh

StateCommission

A/3/2022

Shri Sai Hospital, Multispeciality & Advanced Laparoscopic Surgery Centre - Complainant(s)

Versus

Raj Kumar - Opp.Party(s)

Munish Kapila Adv.

27 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	03 of 2022
Date of Institution	:	07.01.2022
Date of Decision	:	27.02.2023

 

1]       Shri Sai Hospital, A Multispecialty & Advanced Laparoscopic Surgery       Centre, 112/77, 10 Cross Road, Near Prakat Shiv Mandir, Ambala Cantt-   133001 (Haryana) through its Authorized Representative.

2]       Dr. Shraddha Bedi, M.B.B.S., MS Obstetrician, Gynecologist, Infertility & Endoscopy Specialist HMC (Reg. No.3964) Shri Sai Hospital, A Multispecialty & Advanced Laparoscopic Surgery Centre, 112/77, 10 Cross Road, Near Prakat Shiv Mandir, Ambala Cantt-133001 (Haryana)

3]       Dr. Dinesh Bedi M.B.B.S. MS, FMAS, FIAGES, MACRSI Consultant Laparoscopic Surgeon, Ex. Surgeon Railway Hospital (HMC Reg. No 6681), Shri Sai Hospital, A Multispecialty & Advanced Laparoscopic Surgery Centre, 112/77, 10 Cross Road, Near Prakat Shiv Mandir, Ambala Cantt-133001 (Haryana).

 ……Appellants/opposite parties No.1 to 3

V e r s u s

1]       Raj Kumar aged 61 years son of Sh. Narata Ram,

2]       Sachin Sarsawal aged 31 years s/o Sh. Raj Kumar

3]       Komal aged 29 years, D/o Sh. Raj Kumar

4]       Kajal aged 20 years D/o Sh. Raj Kumar

All residents of House No.1866/2, Housing Board Colony, Ward No.8, Kalka, District Panchkula (Haryana).

5]       Nisha D/o Sh. Raj Kumar wife of Sh. Vikram Tomar, resident of House No.592-KA/684, Subhani Kheda, Teli Bagh, Lucknow (UP).

6]       The New India Assurance Company Ltd., Branch Office 353501, 5406, Second Floor, Cross Road No.3, Punjabi Mohalla, Ambala Cantt (Haryana) (in respect of policy of opposite party No.2 & 3, vide Dr. Insurance Policy No.35350136140400000034 valid from 20.01.2015 to 19.01.2016 and Policy No.35250136140400000035 valid from 20.01.2015 to 19.01.2016).

……Respondents.

6-A]   Alchemist Hospital, registered office Sector 21, Panchkula-134112, through its owner/Chairman-Karan Deep Singh.

7]       Dr. Harsh Garg, General Surgeon, Alchemist Hospital, registered office Sector 21, Panchkula-134112.

8]       Dr. Vishal Sharma, Consultant, Alchemist Hospital, registered office Sector 21, Panchkula-134112.

9]       Post Graduate Institute of Medical Education & Research (PGI), Sector 12, Chandigarh, through its HOD Dr. Professor R. Singh.

10]     Dr. Gautam (Surgeon), Post Graduate Institute of Medical Education & Research (PGI), Sector 12, Chandigarh.

11]     Dr. Drarminder (Surgeon), Post Graduate Institute of Medical Education & Research (PGI), Sector 12, Chandigarh.

12]     Dr. Neha (Surgeon), Post Graduate Institute of Medical Education & Research (PGI), Sector 12, Chandigarh.

13]     Dr. G.R. Verma, (Consultant), Post Graduate Institute of Medical Education & Research (PGI), Sector 12, Chandigarh.

14]     M/s Oriental Insurance Company Ltd., Division Office 3,4/E/14, Azad Bhawan, Jhandewala Extension, New Delhi-5, through its Branch Manager (Insurer of Dr. Harish Garg Opposite party No.5 and Insurer of Dr. Vishal Sharma-Opposite Party No.6, vide Dr. Policy No.272200/48/2016/11845 valid from 11.09.2015 to 10.09.2016 & Dr. Policy No.272200/48/2015/6559 valid from 06.01.2015 to 05.01.2016)

15]     The New India Assurance Company Ltd., having its registered office at New India Assurance Building, 87, G.M. Road, Fort, Mumbai-400001 having Dr. Policy No.93000036140200000019 valid from 09.03.2015 till 08.03.2016 in respect of opposite No.4).

…..Performa Respondents.

 

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MR.RAJESH K. ARYA, MEMBER.

 

Present:               Sh. Munish Kapila, Advocate for the appellants.

                             Sh. Varinder Arora, Advocate for respondents No.1 to 5.

                             Sh. J. P. Nahar, Advocate for respondents No.6 & 15.

                             Ms. Ritika Garg, Advocate proxy for Sh. Gunjan Rishi, Advocate for respondent No.6A.

Sh. Ashish Malik, Advocate proxy for Sh. Nitin Sood, Advocate for respondents No.7 and 8.

Sh. Ajit Singh, Advocate proxy for Sh. Paras Money Goyal, Advocate for respondents No.9 to 13.

Sh. Arjun Kundra, Advocate for respondent No.14.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

Prelude

                  

                   While performing hysterectomy, for the removal of uterus, upon Smt. Meena Kumari, it resulted into sigmoid colon perforation, which further resulted in her death on 21.01.2016. The Ld. District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short the District Commission), while accepting consumer complaint No.45 of 2018 vide order dated 12.03.2020, opined that it was medical negligence on the part of opposite parties No.1 to 3 (appellants herein) and therefore, granted following relief:-

“22.        In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OPs 1 to 3 are directed as under :-

1. Complainant No.1 is entitled to the loss of consortium as he had lost the company of his wife when he was a senior citizen and said loss is quantified at Rs.1,00,000/- payable to him only.
2. Complainant Nos.2 to 5 i.e. son and daughters of deceased Smt. Meena Kumari were deprived of the elderly motherly love and affection and their loss is quantified at Rs.2,00,000/- which is to be apportioned amongst them in equal share i.e. Rs.50,000/- each.
3. Refund the amount of Rs.30,000/- to the complainants, to be apportioned among equally, on account of cost of medicines/treatment incurred by them and deposited with OPs 1 to 3.
4. Pay Rs.50,000/- to the complainants, to be apportioned among them equally, as cost of the present litigation.
5. OPs 1 to 3 are further burdened with punitive damages of Rs.3,00,000/- out of which Rs.1,50,000/- shall be paid to PGIMER, Chandigarh which shall be further deposited in the Poor Patient Welfare Fund (PPWF) maintained by PGIMER, Chandigarh for treatment of poor patients. Another amount of Rs.1,50,000/- be deposited in the Consumer Legal Aid Fund account head being maintained in the name of Secretary, State Consumer Disputes Redressal Commission, UT, Chandigarh which may be utilized under the orders of the competent authority for the purpose of providing legal aid to the economically poor persons and weaker sections of society as well as making the consumer awareness by holding appropriate programmes etc.  We found it appropriate case to award punitive damages and these were also prayed for.

23.    This order be complied with by OPs 1 to 3 within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) to (iii) above, with interest @ 9% per annum from the date of this order, till realization, apart from compliance of remaining directions.

24.    The consumer complaint qua the remaining OPs stands dismissed with no order as to costs.  However, the insurers/OPs 12 to 14 are at liberty to settle the claim of the insured doctors as per the settled terms and conditions.” 

2.           Said order has been assailed by opposite parties No.1 to 3 by filing the instant appeal. Before this Commission, it is case of the appellants, inter alia, that perforation was accidental due to proximity of uterus and intestine and it cannot be treated as negligence.

 

Background facts:

3.           Smt. Meena Kumari, aged 56 years was admitted in Shri Sai Hospital of appellants due to menopausal bleeding (recurrent) with hypothyroidism. On investigation, the appellants advised for surgery i.e. either by laser or open surgery. 
4.           On the advice of the appellants, she was admitted in the said hospital on 16.11.2015 and at that time, amount of Rs.30,000/- was deposited. On 17.11.2015, through bipolar coagulation method, surgery was conducted but the next morning i.e. 18.11.2015, she started complaining of mild distress and discomfort. She was not cured. However, Dr. Anuj Jain, general physician was called as an expert who advised that patient be shifted to Alchemist Hospital, Panchkula. As such, she was immediately taken to the said hospital. After conducting various tests, surgery was advised but the said Hospital asked to deposit Rs.10 Lakhs  and a sum of Rs.1 lakh per day  in respect of stay in the hospital. Since the complainant could not afford the same, as such, the patient was shifted to Post Graduate Institute of Medical Education & Research (PGI), Sector 12, Chandigarh (PGIMER), where it was found as under:-
1. Sigmoid colon perforation with active extravasation of   rectal contrast and pneumoperitoneum.
2. Minimal left pleural effusion with bilateral basal atelectasis. 
3.           Although in PGIMER, surgery was conducted but up-to that time, the infection had spread in the whole body, which could not be cured and as a result, Smt. Meena Kumari had died on 21.01.2016.
4.           According to the complainants, the opposite parties are jointly and severally liable for the act and conduct of each other, as also the opposite parties are related to the medical profession and due to their casual behavior and due to the act and conduct of all the opposite parties, Smt. Meena Kumari had expired and their conduct is apparent from the medical record.

                   It is also averred in Paras 15 & 16 of the complaint that Smt. Meena Kumari had died due to medical negligence on the part of the opposite parties and the complainants are entitled for compensation on account of medical negligence on the  part of the opposite parties, mental agony, harassment, loss of life, loss of love and affection and due to the grave and serious medical negligence on the part of all the opposite parties, they are liable to refund the medical expenses raised by opposite parties No.1 to 3 (appellants) to the tune of Rs.30,000/-, medical expenses raised by opposite party No.4 – Alchemist Hospital to the tune of Rs.57,360/- and medical expenses raised by opposite parties No.7 to 11 (PGI) to the tune of Rs.6,485/- and other expenses for medicines and other incidental charges in accordance with the bills.

                   Thus, it is case of the complainants that it was sheer negligence on the part of the appellants who did not exercise reasonable care at the time of performing surgery for the removal of uterus and even post-operation, no care was given, inspite of the fact that the patient was feeling pain, distress in the abdomen. The appellants have not conducted the CT Scan to diagnose the problem.

Defence/stand of the opposite parties.

7.           Before the Ld. District Commission, the complaint was contested by the opposite parties.
8.           Opposite parties No.1 to 3 filed separate written statement wherein they admitted conducting of the surgery and also receipt of the treatment amount. According to the appellants, all the intricacies of surgery were explained to the patient Smt. Meena Kumari and her relatives and she had opted for lapro hysterectomy and they have referred various complications where the risk factor is always there.  The appellants emphatically denied in their reply, if they acted in negligence.
9.           Opposite parties No.4 to 6, in their separate reply, admitted that patient Smt. Meena Kumari was admitted in Alchemist Hospital on 20.11.2015 at 2:07 PM due to respiratory distress. She was duly attended by Dr. Vishal  Sharma, Pulmonologist, Dr. Harsh Garg, Surgeon. The patient was having low blood pressures and was on ionotropes. Ultrasound (USG Abdomen) revealed gaseous distension of abdomen with small amount of fluid in pereheptic and right illolumbar region. On 21.11.2016, CECT abdomen with rectal contract was done, which revealed perforation of the large gut and on noticing the same, the patient and attendants were counseled in detail regarding to gut surgery but they chose to get further treatment from PGI, Chandigarh. It was also their case that no medical negligence was alleged against them and they conducted the tests and if they demanded hefty amount for the medical treatment, it does not amount to medical negligence.
10.           Opposite parties No.8 to 10 (i.e. Dr. Gautam, Dr. Dharminder & Dr. Neha of PGI) were given up by the complainants before the Ld. District Commission on 24.5.2018.
11.           Opposite parties No.7 & 11 (i.e. PGI and Dr. G. R. Verma, Consultant, PGI) in their joint reply pleaded that the patient was examined by the emergency doctors and best possible treatment was given for two months. However, despite of best efforts, her condition deteriorated and she succumbed from severe sepsis and multiple organ failure and had expired on 21.01.2016.  It was further stated that no grounds had been put forth how the PGIMER and its doctors were medically negligent. 
12.           It may be stated here that Opposite party No.12 to 14 (i.e. Oriental  Insurance Company Ltd. & New India Assurance Co. Ltd.) in their reply had denied the consumer complaint being maintainable. However, it has been admitted that Opposite Party No.12 – Oriental Insurance Co. Ltd. had provided insurance cover of medical accident during the performance of duty of the Hospital and its doctors.

Arguments.

13.           Both the parties have filed written arguments and also addressed oral arguments in addition thereto. We have heard the Ld. Counsel for the parties and have gone through the grounds of appeal and written arguments.
14.           It has been argued by the appellants that there is no specific averment in the complaint regarding negligence on their part; that negligent acts of omission or commission have not been disclosed; that the Ld. District Commission has placed too much emphasis on the non-availability of CT Scan facility and ICU facility at the appellant’s Hospital and this cannot be treated as an act of negligence. It is further argued that the Ld. District Commission ignored the fact that uterus and rectum are in close proximity to each other and in the presence of disease, these close structures can get attached to one and other by presence of adhesions. It is further argued that dissection in this area can lead to inadvertent injury to rectum which may not be pinpointed and may go undetected at the time of primary surgery and which may present during the post-operative period. The appellants further submitted that bowel injuries/rectal injuries can occur at the time of laparoscopic hysterectomy and is well documented in the literature. Lastly, it is submitted that merely because an injury occurred which was detected subsequently does not amount to negligence.    In support of his contentions, he placed reliance upon Kusum Sharma Vs Batra Hospital and Medical Research Centre (SC) Civil Appeal No.1385 of 2011  decided on 10.02.2010; Malay Kumar Ganguly Vs Sukumar Mukherjee (Dr) and Ors. III (2019) CPJ 17 (SC) and Martin F. D’souza Vs Mohd. Ishfaq, 2009 CTJ 352.
15.           The Counsel for the complainants while rebutting these arguments, has submitted that in the circumstances of the case, it is very much clear that the appellants did not act with reasonable care and caution and it amounts to medical negligence.
16.             We have given our thoughtful consideration to the rival contentions. The main question, which arises for determination, is as to whether the appellants were negligent at the time of performing surgery upon Smt. Meena Kumari? While defining ‘medical negligence’, the Hon’ble Supreme Court of India in the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC 128 and in A.S.Mittal v. State of U.P., AIR 1989 SC 1570, has laid down that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In the aforementioned case, the Hon’ble Apex Court interalia observed that negligence has many manifestations – it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence, or negligence per se. The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Kalpana vs Dr. K. Ramalakshmi & Anr., (Revision Petition No.1811-1812 of 2014  decided on 11.12.2014) observed as under:-

“16. In Kusum Sharma vs. Batra Hospital (supra) it has been observed interalia as follows:-

I.        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.

II.       Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III.      The medical professional is expected to bring 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.

IV.     A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

17. From the above judgment also, it is very clear that the OP-1 as medical professional was expected to bring a reasonable degree of skill and knowledge and was expected to exercise a reasonable degree of care. From the damage done to the patient, it cannot be stated by any stretch of imagination that a reasonable degree of care was shown by the Doctors in treating the patient and hence, it is a clear-cut case of medical negligence on the part of the OPs.”

17.           In the case in hand, it has come into evidence that the deceased (Smt. Meena Kumari) was admitted in the appellants hospital on 16.11.2015 with complaint of acute abdominal pain, which was provisionally diagnosed as menopausal bleeding (Recurrent) with hypothyroidism, for which surgery was conducted by the appellants on 17.11.2015. On 18.11.2015, she complained of mild distress and discomfort and thereafter, her condition continuously deteriorated because of the rupture caused in the intestine, not noticed by the appellants, negligently. However, the complainant developed severe infection in intestine and other parts of the body, which was not attended properly by the appellants and the abdominal discharge continued unabated,  resulting subsequent laprotomy by PGI. A leak from the abdominal wound was observed for which resuturing was done by PGI.
18.           It may be stated here that when a patient suffers intestine/gut/bowel perforation as a post-surgical complication, the problem lies is whether the surgeon recognizes the injury during surgery or immediately following surgery and treats it appropriately. Some perforations may be diagnosed immediately after surgery, while some may present later in time, in the form of a visit to the emergency department. A visit to the ER with severe abdominal pain shortly after surgery is an important clue for a GI perforation. An X-ray of the abdomen would show the air in the abdominal cavity and a CT scan may also be done to diagnose a nicked intestine/gut/bowel, which would require surgery to repair the cut and clear the abdominal cavity of fecal matter etc. which may have leaked out through the opening. Depending on the severity of the perforation, if the doctor is unable to repair it sufficiently, it may lead to death of the patient  due to septic infection, which has happened in the present case also.
19.           First coming to the ground taken by the appellants to the effect that because uterus and rectum are in close proximity to each other, these got attached to one other by presence of adhesions as such dissection in this area can lead to inadvertent injury to rectum, which may go undetected at the time of primary surgery and it does not amount to medical negligence.
20.           It may be stated here that the candid admission of the appellants to this effect in itself is sufficient to say that it was in the knowledge of the appellants that intestine/gut/bowel injury remains a potential serious complication of gynecological laparoscopy/hysterectomy, as such, under these circumstances, it was required of the appellants to take sincere efforts to prevent it. In the complaint, it is specifically stated that the next day of the surgical operation, patient complained pain in the abdomen and distress. It is significant to mention here that as per the own version of the appellants, the patient complained of pain on POD-1, which is known to occur after hysterectomy procedure and that in the evening of POD-2, patient again complained of pain and distress, hence pre-rectal examination was done which showed presence of feces. Even the indoor medical record, Annexures C-3 to 5, of the appellant’s hospital (Page 26) transpires that on 19.11.2015, it was record that patient complained abdominal discomfort and distension. It was indication that something wrong had done with the patient and the appellants should have over cautions and they had to take necessary steps to avoid septicemia. Her condition remained same on 20.11.2015.
21.           It is also coming out from the record and also as per the admission of the appellants that it was on the third day that the patient was shifted to Alchemist Hospital and that too on the advice of another doctor  Dr. Anuj Jain, Physician, who was called by the appellants and ultimately, it was only after shifting of the patient from the hospital of the appellants that CT Scan was carried out whereafter it revealed that there is a perforation of  large intestine/gut of the patient during her surgery by the appellants. From the sequence of events narrated above, it can easily be adjudged that the appellants kept the patient for three days without giving any further treatment because they failed to early recognize that the large intestine/gut of the patient has been ruptured and on the other hand, carried out pre-rectal examination only, which was not sufficient for the treatment for the perforated large intestine/gut. In fact, the delay during the period 18.11.2015 to 21.11.2015, in diagnosing the causes of abdominal distension and respiratory distress, resulted into spreading of infection within the body of the patient and in the PGI, it was beyond control as it resulted into failure of the major organs.
22.           It is significant to mention here that the best person to know if a patient is at risk for a bowel/intestine/gut perforation is the surgeon. The surgeon is the one that actually saw firsthand if bowel or intestine of the patient is at risk for a perforation. Furthermore, if the appellants were well aware of the fact that because uterus and rectum are in close proximity to each other, these got attached to one other by presence of adhesions as such dissection in this area can lead to inadvertent injury to rectum, the appellants should have performed the surgery with utmost care. During the course of surgery, due to the mishandling and lack of care on the part of the appellants, they perforated the large gut/intestine. It is not the case of the appellants that there was a dense scar tissue or advanced disease to the patient, resulting into the perforation of the intestine/gut. The patient underwent a hysterectomy and despite severe abdominal pain and respiratory disress after her surgery, her surgeons i.e. the appellants no.2 and 3 failed to realize that the intestine/gut may have been perforated. In fact, they failed to act with reasonable care. It was later on discovered and that too by the doctors of other Hospital (Alchemist and PGIMER) that the patient had intestine/gut perforation, sepsis, and multi-system organ failure that led to her death. Thus, ideally, the best and cheapest solution for bowel injury is prevention, yet, even if it occurs, early recognition thereof and early intervention is crucial to reduce its morbidity and mortality, yet, the appellants in the present case failed to do so.  It is also the case of the appellants that on POD-3 they called the senior doctor aforesaid, meaning thereby that there was no combined collaboration between laparoscopic gynecologists and general surgeons/physicians which otherwise was important for timely proper decisions to be made in these difficult cases. It can easily be said that in the present case, had the intestine/gut  injuries diagnosed during surgery or even immediately  thereafter, and dealt with at the same time, the patient would not have been landed into life-threatening situation and ultimately to her death.
23.           The appellants  should have taken extra caution while performing the surgery to find out whether adhesions were properly removed and whether any injury was caused to other body parts, during the course of surgery. If any injury is caused to other body parts, like in this case, perforation to large gut/intestine, immediate steps should have been taken to plug/to close the perforation. Unfortunately, that was not done in this case. It amounts to lack of reasonable care and also amounts to breach of duty of care in the administration of treatment. In fact, there was mishandling of the treatment process after the operation by the appellants. Thus, it is established from the record that there was gross negligence on the part of the appellants as they failed to take proper care after performing the surgical operation and especially, when the patient complained pain, discomfort and distress in abdomen on 18.11.2015.
24.           Recently, the Hon’ble Madras High Court adjudicated the case titled as Flora Madiazagane Vs. G.G.Hospital and others, C.S.No.392 of 2014, decided on 31.01.2023 wherein also, during Laparoscopic surgery, the doctors carelessly punctured and badly perforated the 'Sigmoid Colon' which resulted in development of serious infection in the abdomen of the patient and pelvis area, due to the said perforation.  Thus, by holding that the patient suffered irreparable injuries due to the irresponsible mishandling by the doctors who performed laparoscopic surgery, were burdened with heavy compensation of Rs.40 lacs. In the present case also, there was gross medical negligence on the part of the appellants which resulted into perforation of the large gut/intestine, which ultimately resulted into the death of the patient. The District Commission was also right in  holding so.
25.           The next question that falls for consideration is, as to whether, in the absence of expert evidence from medical experts, it cannot be held that there was any medical negligence on the part of the appellants, it may be stated here that the record of PGI (Annexure C-16) and medical certificate of cause of death along-with NCCT full abdomen with rectal contrast report (Annexure C-12) by Alchemist Hospital make it abundantly clear that there was active extravasation of contrast seen in mid sigmoid colon and further extravasated contrast is seen in perisigmoid and perihepatic region. The Discharge Summary, Annexure C-13, further transpires that as per CECT abdomen revealed intestinal perforation.
26.           Thus, when the medical negligence is writ large and proved from the documents on record, then it is not necessary to refer the case for medical expert evidence. Our this view is supported by the ratio of law laid down by the Hon’ble Supreme Court in case titled as V. Kishan Rao vs Nikhil Super Speciality Hospital & Anr., (2010) 5 SCC 513 wherein it was held that there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. Not only as above, even in Indian Medical Association vs V.P. Shantha & Ors, 1996 AIR 550, 1995 SCC (6) 651, under similar circumstances, the Hon’ble Supreme Court held that it is no doubt true that sometimes complicate questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency in rendering services by a medical practitioner and that the issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies. We are of the view that there is ample evidence to prove negligence on the part of the appellants and the claim of the complainants cannot be thwarted on this ground.
27.           As far as reliance placed on Kusum Sharma Vs Batra Hospital and Medical Research Centre (SC) Civil Appeal No.1385 of 2011  decided on 10.02.2010 is concerned, with due respect of the said judgment, the facts of that case are totally distinguishable from the facts of the present case because in that case it was held by the Hon’ble Supreme Court that as long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. Whereas, in the present case, medical negligence on the part of the appellants has been proved to be writ large, as explained above, as they failed to even notice that the larger gut/intestine has been perforated, which ultimately became the reason of death of the patient.
28.           Now coming to the case Malay Kumar Ganguly Vs Sukumar Mukherjee (Dr) and Ors. III (2019) CPJ 17 (SC), it may be stated here that in this case, the Hon’ble Supreme Court  held Dr. Mukherjee, Dr. Halder, Dr. Abani Roy Chowdhury, AMRI, Dr. B. Prasad negligent for the death of Anuradha/patient and it was only held that  on account of the  medical negligence, it cannot be said that the said Doctors should be held guilty for commission of an offence under Section 304-A of the Indian Penal Code.  Thus, the facts of this case are totally distinguishable from the facts of the present case.
29.           As far as the case Martin F. D’souza Vs Mohd. Ishfaq, 2009 CTJ 352 is concerned, it may be stated here that in this case the allegation against the Doctor concerned was that he gave overdose of the antibiotic. It was held that the impairment of hearing of the respondent may be mentioned that there is no known antibiotic drug which has no side effect and merely because there was impairment in the hearing of the respondent that does not mean that the Doctor was negligent. In this case, the  Doctor desperately tried to save the life of the respondent. It was under those circumstances held that  it must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is. However, in the present case, as stated above, medical negligence on the part of the appellants has been proved to be writ large, as explained above, as they failed to even notice that the large gut/intestine has been perforated, which ultimately became the reason of death of the patient. 

Conclusion:

30.           Keeping in view the above discussion, we are of the considered view that the impugned order passed by the District Commission, partly allowing the consumer complaint, being based on the correct appreciation of evidence and law on the point, does not suffer from illegality or perversity, warranting interference of this Commission.
31.           Resultantly, this appeal stands dismissed with costs of Rs.11,000/- to be paid to the respondents no.1 to 5/complainants no.1 to 5 within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% p.a. from the date of filing this appeal till realization.
32.           Certified Copies of this order be sent to the parties, free of charge.
33.           The file be consigned to Record Room, after completion.

Pronounced

27.02.2023

 

 

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 

(RAJESH K. ARYA)

MEMBER

 

 

Rg.