Minor Marghesh K.
Parikh Vs Dr. Mayur H. Mehta
JUDGMENTG.S.
Singhvi, J.
1.
Leave
granted.
2.
This
appeal is directed against the order of the National Consumer Disputes
Redressal Commission (for short, `the National Commission')whereby the appeal
preferred by the respondent under Section 19 of the Consumer Protection Act,
1986 (for short, `the Act') was allowed and the order passed by the State
Consumer Disputes Redressal Commission, Gujarat (for short, `the State
Commission') for payment of compensation ofRs.5,00,000/- to the appellant with
interest @ 9% per annum was set aside.
3.
The
appellant was admitted in the hospital of the respondent on31.10.1994 with the
complaint of loose motions. After some laboratory tests, the respondent put him
on medication and also injected glucose saline through his right shoulder. This
did not improve the condition of the appellant, who started vomiting and having
loose motions frequently. On3.11.1994, the respondent is said to have
administered glucose saline through the left foot of the appellant. In the
evening, the parents of the appellant noticed swelling in the toe of his left
foot, which was turning black? This was brought to the notice of the
respondent, who stopped the glucose. On the next day, the parents of the
appellant pointed out to the respondent that blackish discoloration had spread.
Thereupon, the appellant was sent to one Dr. Chudasama, who was known to the
respondent. Dr.Chudasama applied a small cut, removed black coloured fluid from
the left toe of the appellant and gave some medicines. In the morning of
5.11.1994,it was noticed that the left leg of the appellant had become totally
black upto the knee. Thereupon, he was taken to Vadodara. Dr. Ashwin Bhamar,who
examined the appellant at Vadodara suspected that he had developed gangrene in
his left leg and advised his admission in Bhailal Amin Hospital. The appellant
was operated in that hospital and his left leg was amputated below the knee.
4.
The
appellant filed a complaint through his father and claimed compensation of
Rs.10,00,000/- by alleging negligence on the part of the respondent. According
to the appellant, even though the factum of swelling of the toe and blackening
of the leg was brought to the notice of the respondent, he did not bother to
get the appellant examined through an expert, which could save his leg. It was
also pleaded that due to the respondent’s failure to pay requisite attention,
the appellant's left leg had to be amputated below the knee and he will suffer
throughout his life.
5.
In
the written statement filed by him, the respondent claimed that the appellant
was hospitalized for gastro-enteritis, dehydration acidosis and septicemia
shock and mal-nutrition and anemia and seriousness of the case was communicated
to his father. According to the respondent, treatment was given to the
appellant keeping in view the laboratory reports and no glucose was
administered after 2.11.1994. The respondent denied the allegation of
negligence and pleaded that he had taken every possible care interacting the
appellant and even got him examined by Dr. Chudasama despite the fact that his
hospital was closed on account of holidays.
6.
The
State Commission did not accept the version of the respondent that the
appellant had been brought to his hospital in a serious condition by observing
that if this was so, there was no reason for him to stop medication and
glucose. The State Commission noted that the case papers were produced by the
respondent after a time gap of 6 years and that too after cross-examination of
the complainant's father and vascular surgeon, Dr.Ashwin Bhamar, who was
produced as an expert. The State Commission further noted that the respondent
had not filed the affidavit of Dr.Chudasama, to whom the appellant is said to
have been taken for further treatment. The State Commission concluded that the
respondent had not exercised reasonable care while treating the appellant and awarded
compensation of Rs.5,00,000/- with interest at the rate of 9% from the date of
complaint. The relevant portion of the order passed by the State Commission is
extracted below: "After completion of oral arguments respondent has
submitted written arguments of seven pages. In that many quotations from
medicine text Book and Medical Journals have been cited. The crux of that is
gangrene can take place because of so many reason, because of serious type of
dehydration and septicemia also it can happen so only because of Glucose bottle
this can take place this cannot be said. In this case patient had serious dehydration
that could not be established by respondent. Because had that been a reality
then the Glucose bottle could not be administered inter vein and if the
condition of minor patient was this much serious then in five days not a single
laboratory test was carried out that is beyond perception. Moreover, it is
mentioned in these quotations that gangrene can happen to any leg or hand
whereas here it is clear fact that where the bottle was given to the same leg
it has happened. Moreover the Vascular Surgeon Dr. Bhamar says in his cross-examination
that "it has not come in my examination that if there is vomiting and
loose motion it results in gangrene."Thus the person like Vascular Surgeon
having an experience given contrary opinion to the quotations submitted by the
respondent. Moreover in his affidavit Dr. Bhamar clearly states that in this
case because of the Glucose bottles gangrene has taken place as against this
the respondent has not produced any opinion of expert doctor or Dr. Chudasama
on oath. In our honest opinion the value of quotations is negligible as against
the opinion of expert doctor. Because opinion of expert doctor explains these quotations
and is given. It is necessary to note here that respondent submits that the
treatment given by respondent himself and symptoms recorded by him like
swelling, blackness of the skin and in support to the condition of the patient
at every stage he took advise from Dr.Chudasama but here no affidavit of Dr.
Chudasama is produced. Therefore the truthfulness of this submission cannot be
verified. Moreover as stated above after admitting in the hospital no tests
have been carried out that also catches the attention. Thus what Dr. Chudasama
said, was his diagnosis what he had advised when this advise was given these questions
are remaining unanswered. The crux of that is gangrene can take place because
of so many reason, because of serious type of dehydration and septicemia also
it can happen so only because of Glucose bottle this can take place this cannot
be said. In this case patient had serious dehydration that could not be
established by respondent. Because had that been a reality then the Glucose bottle
could not be administered inter vein and if the condition of minor patient was
this much serious then in five days not a single laboratory test was carried
out that it beyond perception. Moreover it is mentioned in these quotations
that gangrene can happen to any leg or hand whereas here it is clear fact that
where the bottle was given to the same leg it has happened. Moreover the
Vascular Surgeon Dr. Bhamar says in his cross- examination that. "It has
not come in my examination that if there is vomiting and loose motion it
results in gangrene." Thus the person like Vascular Surgeon having an experience
gives contrary opinion to the quotations submitted by the respondent. Moreover
in his affidavit Dr. Bhamar clearly states that in this case because of the
Glucose bottles gangrene has taken place as against this the respondent has not
produced any opinion of expert doctor of Dr. Chudasama on oath. In our honest
opinion the value of quotations is negligible as against the opinion of expert
doctor. Because opinion of expert doctor explains these quotations and is
given. Thus the Glucose bottle was given to the left leg to it swelling came
and skin became black and that resulted into gangrene regarding that no proper
action was taken and because of that the one and half year old child had to
loose leg below the knee is proved with support of affidavit of an expert the
Vascular Surgeon. As against this, respondent has produced his reply and only
certain quotations. The most important thing is that respondent is not caring
to produce the affidavit of such surgeon Dr. Chudasama whose opinion that was
taken. Considering all these facts and circumstances as per our honest opinion
clear cut defective service on the part of respondent is established."
7.
The
National Commission allowed the appeal preferred by the respondent and set
aside the order of the State Commission only on the ground that in his
cross-examination, Dr. Ashwin Bhamar admitted that there could be ten other
reasons for gangrene. This is evident from the following portion of the order
of the National Commission: "Copy of the affidavit of Dr. Bhammar is at
pages 121 to 123 and his cross-examination is at pages 124 & 125 in Vol.IV
of the paper book. To be noted that besides the affidavit of Dr Bhammar only
the affidavit of the father of respondent was filed by way of evidence. In this
affidavit Dr. Bhammar has averred that he has been practicing as vascular
surgeon at Baroda and has been attending Bhailal Amin General Hospital. On
05.11.1994, respondent was brought to him by his father for treatment. He found
gangrene on his left leg and advised amputation of left leg immediately. Reason
for gangrene may be wrong application of glucose bottle on the left leg. In
cross- examination, he admitted that there could be 10-12 other reasons for
gangrene. It did not come to his notice that gangrene may occur if a patient
has diarrhea and vomiting. In this case, he can not definitely say what the
reason for gangrene was. In the impugned order, the State Commission has omitted
to refer the admissions made to the said effect by Dr. Bhammer. As may be seen
from the averments made in complaint, the case of the respondent is that wrong
application of glucose on left leg of on 3.11.1994 had caused gangrene. In the
written version, the appellant has pleaded that respondent was not given any
intravenous fluids from 11.30 pm on 02.11.1994 to 04.11.1994. Assuming this
plea to be false and accepting the case of the respondent that he was given intravenous
glucose on 03.11.1994, still in view of the admissions referred to above made
by Dr. Bhammer, the appellant cannot be held guilty of medical negligence.
Having reached this conclusion the other part of the submission, advanced on
behalf of the appellant, need not be gone into. Order under appeal thus, cannot
be legally sustained and deserves to be set aside.
8.
In
Jacob Mathew v. State of Punjab (2005) 6 SCC 1, a three-Judge Bench, considered
the question whether charges could be framed against the appellant under
Section 304A read with Section 34 of the Indian Penal Code on the allegation of
negligence. The three-Judge Bench highlighted the jurisprudential distinction
between civil and criminal liability in cases of medical negligence, considered
various facets of negligence by professionals and laid down several
propositions including the following: "(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. The definition of
negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by
Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes
actionable on account of injury resulting from the act or omission amounting to
negligence attributable to the person sued. The essential components of
negligence are three: "duty", "breach" and "resulting
damage". (2) Negligence in the context of the 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. Similarly,
when the charge of negligence arises out of failure to use some particular
equipment, the charge would fail if the equipment was not generally available
at that particular time (that is, the time of the incident) at which it is suggested
it should have been used. (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 case, WLR at p.586 holds good in its
applicability in India. (5) The jurisprudential concept of negligence differs
in civil and criminal law. What may be negligence in civil law may not necessarily
be negligence in criminal law. For negligence to amount to an offence, the
element of mens rea must be shown to exist. For an act to amount to criminal
negligence, the degree of negligence should be much higher i.e. gross or of a
very high degree. Negligence which is neither gross nor of a higher degree may
provide a ground for action in civil law but cannot form the basis for
prosecution."
9.
9.
In Martin F. D'Souza v. Mohd. Ishfaq (2009) 3 SCC 1, a two-JudgeBench referred
to the judgment in Jacob Mathew's case and proceeded toequate criminal
complaint against doctor or hospital with a complaint filed 10under the
Act. This is evident from para 106 of the judgment, which isextracted below: "We,
therefore, direct that whenever a complaint is received against a doctor or
hospital by the Consumer Fora (whether District, State or National) or by the
criminal court then before issuing notice to the doctor or hospital against
whom the complaint was made the Consumer Forum or the criminal court should
first refer the matter to a competent doctor or committee of doctors,
specialised in the field relating to which the medical negligence is
attributed, and only after that doctor or committee reports that there is a
prima facie case of medical negligence should notice be then issued to the
doctor/hospital concerned. This is necessary to avoid harassment to doctors who
may not be ultimately found to be negligent. We further warn the police officials
not to arrest or harass doctors unless the facts clearly come within the
parameters laid down in Jacob Mathew case, otherwise the policemen will
themselves have to face legal action."
10.
In
V. Kishan Rao v. Nikhil Super Specialty Hospital and another(2010) 5 SCC 513,
the Court noted that the proposition laid down in MartinD'Souza's case is
contrary to the three-Judge Bench judgment in Jacob Mathew's case and observed:
"We are of the view that the aforesaid directions in D'Souza are not
consistent with the law laid down by the larger Bench in Mathew. In Mathew the
direction for consulting the opinion of another doctor before proceeding with
criminal investigation was confined only in cases of criminal complaint and not
in respect of cases before the Consumer For a. The reason why the larger Bench
in Mathew did not equate the two is obvious in view of the jurisprudential and
conceptual difference between cases of negligence in civil and criminal matter.
This has been elaborately discussed in Mathew."
11.
In
the light of the above noted judgments, it is to be seen whether the finding
recorded by the State Commission that the respondent did not exercise due
diligence and skill in treating the appellant was correct and the National Commission
committed an error by upsetting the order of the State Commission. A critical
analysis of the order of the State Commission shows that it did not accept the
respondent's version that the appellant had been brought to his hospital in a
serious condition and he was suffering from gastro-enteritis, dehydration
acidosis and septicemia shock and mal-nutrition and anemia by observing that if
that was so, there was no valid reason for the respondent to stop medication
and withdraw glucose on 2.11.1994. The State Commission also took serious view
of the respondent's conduct in producing the case papers after a gap of 6 years
from the date of filing the complaint and that too, after the appellant's
father and Dr. Ashwin Bhammarhad been cross-examined. The State Commission then
referred to the statement of Dr. Ashwin Bhamar and opined that in view of his statement,
the printed material produced by the respondent cannot be relied for denying
relief to the appellant. The State Commission concluded that there was
deficiency in service on the part of the respondent and directed him to pay compensation
to the appellant. The National Commission did not advert to these important
aspects and allowed the appeal on the solitary ground that on his
cross-examination, Dr. Ashwin Bhamar had admitted that there could beaten to
twelve other reasons for development of gangrene.
12.
In
our view, the National Commission was duty bound to pay serious attention on
the respondent's failure to produce the case papers for 6 long years and called
upon him to explain why the record pertaining to the treatment given to the
appellant was held back from the State Commission till the complainant's
evidence was virtually over. The case papers/bed ticket maintained by the
hospital of the respondent would have disclosed the line of treatment adopted
by him. Why he did not produce those papers along with reply to the complaint
or at least before commencement of the evidence of the appellant is
inexplicable. By withholding those papers till the completion of the evidence
of Dr. Bhamar, the respondent appears to have made an attempt to mislead the
State Commission about the steps taken by him for treating the appellant. Equally
intriguing was respondent’s failure to file affidavit of Dr. Chudasama to whom
he claims to have taken the appellant for treatment. The respondent did try to
fill in this lacuna by filing affidavit of Dr. Chudasama before the National
Commission. The latter should have enquired as to why he had not filed such
affidavit before the State Commission or examined him as a witness before the State
Commission. These omissions on the part of the National Commission are
extremely serious and have resulted in failure of justice.
13.
For
the reasons stated above, the appeal is allowed. The impugned order is set
aside and the matter is remanded to the National Commission for fresh disposal
of the appeal filed by the respondent. Since, the matter is almost 16 years
old, we request the National Commission to decide the appeal within a period of
6 months from the date of receipt/production of copy of this judgment. The
parties are directed to appear before the National Commission on 8th of
November, 2010. They may file additional affidavits and documents within next
four weeks.
.............................J.
[G.S. Singhvi]
..............................J.
[Asok Kumar Ganguly]
New
Delhi
October
26, 2010
Back
