P.G. Inst. of Medical
Education & Research Vs. Jaspal Singh & Ors. [2009] INSC 1127 (29 May
2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7950 OF 2002 Post
Graduate Institute of Medical Education & Research, Chandigarh ...
Appellant Versus Jaspal Singh & Ors. ...Respondents
JUDGEMENT
R.M. Lodha, J.
1.
In
this appeal by special leave, the appellant, Post Graduate Institute of Medical
Education and Research, Chandigarh (for short, `PGI' ) has challenged the order
dated September 29, 2000 passed by the National Consumer Disputes Redressal
Commission (for short, "National Commission"). By its order, the
National Commission dismissed the appeal filed by PGI under Section 21 of the
Consumer Protection Act, 1986 (for short, `Act, 1986' ) and affirmed the order
passed by the State Consumer Disputes Redressal Commission, Chandigarh (for
short, `State Commission' ) whereby it directed the PGI to pay compensation in
the sum of rupees two lacs to the respondents 1 and 2 herein (for short, `the
complainants') and cost of Rs. 5,000/-.
2.
The
brief facts of the case are thus:
On March 30, 1996,
Smt. Harjit Kaur (wife of complainant No. 1 and mother of complainant No. 2)
received accidental burns while making tea on the stove. She sustained 50% TBSA
III burns involving both upper limbs, part of trunk and most of both lower
limbs. Smt. Harjit Kaur was taken to Daya Nand Medical College and Hospital,
Ludhiana immediately where she responded to the treatment well. She remained
admitted in Daya Nand Medical College and Hospital upto April 19, 1996.
Since the treatment
at Daya Nand Medical College and Hospital was expensive, the complainant No. 1
decided to shift his wife to PGI for further treatment. On April 19, 1996, Smt.
Harjit Kaur was admitted in PGI, Chandigarh. Dr. Varun Kulshrestha, Senior
Resident Doctor, Department of Plastic Surgery attended to her.
The condition of Smt.
Harjit Kaur started improving at PGI. On May 15, 1995, she was transfused A+
blood which was her blood group. On May 20, 1996, the patient was transfused B+
blood group in the afternoon although her blood group was A+. On the night of
May 20, 1996, the urine of the patient was reddish like blood and the attendant
nurse was informed accordingly. As to the bad luck of Smt. Harjit Kaur, on the
next day, i.e., May 21, 1996 again one bottle of B+ blood group was transfused
although her blood group was A+. Because of transfusion of mismatched blood,
the condition of Smt. Harjit Kaur became serious; her hemoglobin levels fell
down to 5mg. and urea level went very high.
Later on, it
transpired that due to transfusion of mismatched blood, the kidney and liver of
the patient got deranged. The complainant No. 1 made a written complaint to the
Head of the Department of Plastic Surgery for mismatched transfusion of blood
to the patient whereupon an inquiry was conducted through senior doctor and
wrong transfusion of the blood to the patient was found.
The condition of Smt.
Harjit Kaur started deteriorating day by day and she ultimately died on July 1,
1996. In the complaint before the State Commission, the complainants alleged
that the death of Smt. Harjit Kaur was caused due to the negligence of Dr.
Varun Kulshrestha and the medical staff at PGI; that there was negligence in
the discharge of service by the PGI and its doctors and they claimed damages to
the tune of rupees nine lacs for the loss of life of Smt. Harjit Kaur.
3.
Dr.
Varun Kulshrestha filed reply to the complaint. He principally set up the plea
that although the patient was transfused wrong blood but it was not due to any
negligence on his part. He stated that due to the care exercised by him and the
other nursing staff, the patient became alright and her hematological and
biochemical parameters became almost normal and she recovered from mismatched
blood transfusion. It was stated in his reply that Smt. Harjit Kaur died of
septicemia and not by mismatched blood transfusion and, therefore, the
complaint was liable to be dismissed.
4.
Insofar
as PGI is concerned, no reply to the complaint was filed separately but they
adopted the reply filed by Dr. Varun Kulshrestha. The parties filed their
respective affidavits and also produced before the State Commission the summary
report and the documents concerning treatment of Smt. Harjit Kaur.
5.
The
State Commission after hearing the parties and upon consideration of the
materials made available to it, came to the conclusion that there was serious
deficiency and negligence on the part of PGI and its attending doctor(s)/staff
in transfusion of wrong blood group to the patient which resulted in death of
Smt. Harjit Kaur. The State Commission in its order dated February 1, 2000 held
that PGI was liable to pay sum of rupees two lac to the complainants out of
which 3/4th was to be put in the fixed deposit in favour of the minor son
Amandeep Singh (complainant no. 2) and 1/4th amount to be paid to the
complainant No. 1. The State Commission also awarded the cost of Rs. 5000/-.
6.
PGI
challenged the order of the State Commission in appeal before the National
Commission but without any success.
7.
The
learned counsel for PGI raised the same contentions before us which were raised
before the National Commission that the cause of death of Smt. Harjit Kaur was
Septicemia and not mismatched blood transfusion. He would submit that Smt.
Harjit Kaur recovered from mismatched blood transfusion given to her on 20th
and 21st May, 1996; her hemoglobin level was brought up and her vital organs
started functioning normal. The learned counsel would submit that Smt. Harjit
Kaur died due to burn injuries and the other connected reasons arising out of
said injury and not due to mismatched blood transfusion and, therefore, no
negligence can be attributed to the hospital and the attending doctor/s. He
relied upon two decisions of this Court 1 namely (i) Jacob Mathew v. State of
Punjab and Another and (ii) Martin F D'Souza v. Mohd. Ishfaq.2
8.
The
term negligence is often used in the sense of careless conduct. Way back in 1866
in Grill vs. General Iron Screw Collier Co.3, Wills J. referred to negligence
as " ......... the absence of such care as it was the duty of the
defendant to use."
9.
Browen
L.J. in Thomas v. Quatermaine4 stated, " ...
idea of negligence
and duty are strictly correlative, and there is no such thing as negligence in
the abstract; negligence is simply neglect of some care which we are bound by
law to exercise towards somebody".
10.
In
Donoghue v. Stevenson5, Lord Macmillan with regard to negligence made the
following classic statement:
"The law takes
no cognizance of carelessness in the abstract. It concerns itself with
carelessness only where there is a duty to take care and where failure in that
duty has caused damage. In such circumstances carelessness assumes the legal
quality of negligence and entails the consequences in law of negligence. The
cardinal principle of liability is that the party complained of should owe to
the party complaining a duty to take care, and that the party complaining should
be able to prove that he has suffered damage in consequence of a breach of that
duty."
1 (2005) 6 SCC 2
(2009) 3 SCC 3 (1866) L.R. 1 C.P. 600 at 612 4 (1887)18 Q.B.D. 685 at 694 (1932)A.C.
562 at 618-619 11. In Jacob Mathew1 this Court while dealing with negligence as
tort referred to the Law of Torts, Ratanlal and Dhirajlal, (24th Edn., 2002
edited by Justice G.P. Singh) and noticed thus:
11.
"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. Actionable negligence consists in the neglect of
the use of ordinary care or skill towards a person to whom the defendant owes
the duty of observing ordinary care and skill, by which neglect the plaintiff
has suffered injury to his person or property.
... the definition
involves three constituents of negligence: (1) A legal duty to exercise due
care on the part of the party complained of towards the party complaining the
former's conduct within the scope of the duty; (2) breach of the said duty; and
(3) consequential damage. Cause of action for negligence arises only when
damage occurs; for, damage is a necessary ingredient of this tort."
12.
Insofar
as civil law is concerned, the term negligence is used for the purpose of
fastening the defendant with liability of the amount of damages. To fasten
liability in criminal law, the degree of negligence has to be higher than that
of negligence enough to fasten liability for damages in civil law.
13.
In
Syed Akbar v. State of Karnataka6, this Court dealt with in details the
distinction between negligence in civil law and in criminal law. It has been
held that there is a marked difference as to the effect of evidence, namely,
the proof, in civil and criminal proceedings. In civil proceedings, a mere
preponderance of probability is sufficient, and the defendant is not
necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings,
the persuasion of guilt must amount to such a moral certainty as convinces the
mind of the Court, as a reasonable man, beyond all reasonable doubt.
14.
In
Bhalchandra Waman Pathe v. State of Maharashtra7, this Court held that while
negligence is an omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and reasonable man would not do.
15.
With
regard to the professional negligence, it is now well settled that a
professional may be held liable for negligence if he was not possessed of the
requisite skill which he professed to have possessed or, he did not exercise,
with reasonable competence in 6 (1980) 1 SCC 30 7 1968 ACJ 38 the given case
the skill which he did possess. It is equally well settled that the standard to
be applied for judging, whether the person charged has been negligent or not;
would be that of an ordinary person exercising skill in that profession. It is
not necessary for every professional to possess the highest level of expertise
in that branch which he practises.
16.
In
Jacob Mathew1 as well as Martin F D'Souza2, this Court quoted with the approval
the opinion of MacNair, J in Bolam v. Friern Hospital Management Committee8 :
"[W]here you get
a situation which involves the use of some special skill or competence, then
the test as to whether there has been negligence or not is not the test of the
man on the top of a Clapham omnibus, because he has not got this special skill.
The test is the standard of the ordinary skilled man exercising and professing
to have that special skill. A man need not possess the highest expert skill ...
It is well- established law that it is sufficient if he exercises the ordinary
skill of an ordinary competent man exercising that particular art."
17.
In
Hucks v. Cole9, Lord Denning stated that a medical practitioner would be liable
only where his conduct fell below that of the standards of a reasonably
competent practitioner in his field.
(1957) 2 All ER
118(QBD) 9 (1968) 118 New LJ 469
18.
Lord
President (Clyde) in Hunter v. Hanley10 observed that the true test for
establishing negligence in diagnosis or treatment on the part of a doctor is
whether he has been proved to be guilty of such failure as no doctor of
ordinary skill would be guilty of, if acting with ordinary care.
19.
In
their classic work, `On Professional Negligence (fifth edition)', Jackson &
Powell state that mistakes made in the course of treatment may be purely
physical; purely intellectual or they may fall somewhere between the two.
Whichever form the mistake takes, there are two separate questions to consider
: (i) whether the defendant made a "mistake"; (ii) if so, whether the
mistake was one which a reasonably careful and skilful medical practitioner
would not have made. The claimant must, of course, succeed on both questions in
order to establish negligence.
20.
It
needs no emphasis that in the medical negligence actions, the burden is on the
claimant to prove breach of duty, injury and causation. The injury must be
sufficiently proximate to the medical practitioner's breach of duty. In the
absence of evidence to the contrary adduced by the opposite party, an inference
of causation may be drawn even though positive or scientific proof is lacking.
10 1955 SLT 213
21.
`The
Physiological Basis of Medical Practice (Eight Edition)' by Charles H. Best and
Norman B. Taylor in Chapter 26 deals with transfusion; blood groups. In respect
of incompatible transfusions, while dealing with its effects, it is stated that
if blood of the wrong (incompatible) ABO blood group is transfused, a hemolytic
transfusion reaction usually results red cells are destroyed and there may be
jaundice with hemoglobinemia and hemoglobinuria. Chills, fever and shock may
occur. Renal insufficiency may ensue believed by some to be due to a reduced
blood flow through the glomeruli.
22.
The
patient, Harjit Kaur, got burn injuries to the extent of 50% on March 30, 1996.
She was initially treated at Daya Nand Medical College and Hospital, Ludhiana
for about 20 days. Her condition improved satisfactorily at Daya Nand Medical
College and Hospital. She was admitted to PGI, Chandigarh on April 19, 1996.
The available
material placed before the State Commission shows that at the time of her
admission, Smt. Harjit Kaur was taking medicine orally and passing urine; 75%
of eschar was removed by May 1, 1996. Her condition had substantially improved
at PGI before May 20, 1996 and she had no signs of septicemia. It was only
after mismatched blood transfusion B+ on two consecutive days, i.e., 20th and
21st May, 1996, that she became anemic (her hemoglobin level was reduced to 5
per gram) and her kidney and liver were deranged.
It is true that her
hemoglobin was brought up in few days but her condition otherwise got
deteriorated. Although she survived for about 40 days after mismatched blood
transfusion but from that it cannot be said that there was no causal link
between the mismatched transfusion of blood and her death. Wrong blood
transfusion is an error which no hospital/doctor exercising ordinary care would
have made. Such an error is not an error of professional judgment but in the
very nature of things a sure instance of medical negligence. The hospital's
breach of duty in mismatched blood transfusion contributed to her death, if not
wholly, but surely materially. Mismatched blood transfusion to a patient having
sustained 50% burns by itself speaks of negligence. Therefore, in the facts and
circumstances of the case, it cannot be said that the death of Smt. Harjit Kaur
was not caused by the breach of duty on the part of the hospital and its
attending staff.
23.
The
State Commission observed:
"..... that
there has been serious deficiency and negligence on the part of the PGI and its
12 attending doctor(s)/staff for transfusing wrong blood group to the patient
which caused death of the wife of complainant No. 1. Mismatching of blood has
been confirmed by the Senior Resident in the Death Summary also (Annexure C/7).
Once the patient is brought to the PGI or any other Institute of Health Care,
the back-ground/History, if any, for example that the patient was maltreated by
the husband, does not absolve the Hospital from its professional obligation...
..."
24.
Affirming
the aforesaid view of the State Commission, the National Commission held thus:
"..... It is
seen that the patient's kidney was damaged and the blood level reached to 100
gms. percentage, hemoglobin came down to 5 mg. after the mismatched blood
transfusion was given by the Doctor in the said Hospital. It was only after the
Complainant gave the written complaint to the hospital regarding the wrong
transfusion of blood given to the patient, an inquiry was made and it was found
correct. The damage control treatment started only after the written complaint
was given by the complainant. Though it is argued by the Counsel for the
Appellant that the percentage levels were brought down to normal, it is very
clear to us that the internal imbalances of liver and kidney functioning and
deteriorating hemoglobin levels started only after the mismatched blood
transfusion was given. Though septicemia has been written as the ultimate cause
of death, the patient's health took a nose dive only after wrong blood was
given to her and this is clearly negligence on the part of the Doctors of the
Hospital which the appellants cannot disown or absolve themselves...."
25.
We
concur with the view of the National Commission as it does not suffer from any
error of law.
26.
In
the result, the appeal fails and is dismissed with costs which we quantify at
Rs. 20,000/-.
..........................J (D.K. Jain)
..........................J
(R.M. Lodha)
New
Delhi,
May
29, 2009.
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