NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
REVISION PETITION NO. 1543 OF 2012
(Against the order dated 21.10.2011 in Appeal No. 874/2008
Dr. Rajiv Gupta (Incharge)
Amrat Dhara Hospital,
Chaura Bazar, Karnal
1. Sukhbir Singh
Son of Sh. Tula Ram
Post Office Subhri
Tehsil and Distric Karnal
2. The New India Assurance Co. Ltd.
G.T. Road, Karnal
HON’BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner : Mr. Sagar Saxena, Advocate
Pronounced on : 3rd July, 2012
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. The facts germane to the present case are these. The complainant Sukhbir Singh suffered injuries on the right side of his abdomen on his person in a roadside accident on 05.12.2004, while he was driving his motorcycle. He was admitted in the hospital of Dr. Rajiv Gupta, Incharge Amrat Dhara Hospital, who is the petitioner in this case. The complainant remained admitted from 05.12.2004 to 18.12.2004. Many tests were conducted and the complainant was kept under I.C.U. On 05.12.2004, Dr. Rajiv Gupta inserted a pipe on the right side of the back below the scapular region of the complainant. Ultrasound and X-rays were conducted on each and every day. On 13th December 2004, Dr. Rajiv Gupta conducted C.T. Scan of the complainant from Chitra City Scan. Dr. Rajiv Gupta removed the old pipe from the body of the complainant and inserted a new pipe in the body of the complainant. The liver of the complainant got damaged due to wrong insertion of a pipe (GTD) in his back and due to that his condition deteriorated. This fact was never disclosed and it was held back. On 14.12.2004, the condition of the complainant started further deteriorating and he felt uncomfortable. On 18.12.2004, Dr. Rajiv Gupta referred the complainant to P.G.I. Chandigarh. The complainant remained admitted in PGI, Chandigarh from 18.12.2004 to 12.02.2005. The main grouse of the complainant is that he was never treated properly by the petitioner Dr. Rajiv Gupta. It is transpired that Dr. Rajiv Gupta is not a surgeon. The complainant had to spend a sum of Rs. 58,000/- on his treatment including various tests and medicines. He had to spend Rs. 2,00,000/- in PGI, Chandigarh.
2. Petitioner denied all these allegations in his written statement. It was alleged that the complainant wants to blackmail Dr. Rajiv Gupta who is running this hospital for the last eighteen years and is the most prestigious hospital for heart and chest diseases. He is gold medallist and did MBBS and MD from A.I.I.M.S. He remained Senior resident in the casualty of A.I.I.M.S. Complainant was in a serious condition that is why as was shifted to petitioner’s hospital from Tagor hospital. He was attended by a full team. Tests revealed that the complainant was having fracture of ribs on the right side alongwith traumatic hemothroax with respiratory distress and there was a collection of blood in the abdomen. The patient was collapsing, therefore, the idea of sending him to PGI was abandoned. The patient did not have injury on his liver.
3. The District Forum dismissed the complaint filed by the complainant. Appeal was preferred before the State Commission. The State Commission awarded a sum of Rs. 58,000/- and Rs. 1,00,000/- as compensation, which was to carry interest @ 9% from the date of order passed by it, on 21.10.2011 till its realization together with an amount of Rs. 5000/- as cost of litigation. The State Commission also directed that the order be complied with within 30 days from the receipt of the order, failing which, the total amount shall carry interest @ 12% from the date of filing the complaint i.e. dated 23.03.2005.
4. We have heard the counsel for the petitioner. The learned counsel for the petitioner reiterated the submissions made in the written statement. It was argued that the petitioner is a competent doctor and negligence cannot be attributed on his part. It was also argued that first of all the patient/complainant was taken to Tagore Hospital, Karnal, where his tests were done, the doctors declared him to be in a serious condition and refused to admit him. Thereafter, the patient came to the hospital of petitioner. It was further submitted that the patient was brought in a serious condition. His BP had fallen to 84 mm and was not fully conscious. The patient was examined by a team of doctors and the life saving measures were taken. It is contended that the option of shifting the patient to PGI, Chandigarh, was also discussed but it had to be abandoned, as it was clear that the patient couldn’t survive more than a few minutes, unless this treatment was done. Dr. Arun Goyal, M.D. (Radiology) assisted Dr. Rajiv Gupta. Dr. K.K. Seth, M.S. also assisted him. Dr. Parveen Goyal, Surgeon was also consulted on 17.12.2004. On his opinion, the patient was advised to shift to PGI, Chandigarh.
5. Learned counsel for the petitioner has cited two authorities in support of his case. The first is reported in “Jacob Mathew Versus State of Punjab and Another” [(2005) 6 Supreme Court Cases 1]. This is an authority under the Criminal Law as the Hon’ble Judges were dealing with a case under Section 304A I.P.C. It was however, held:-
“18.In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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 necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.
21. The degree of skill and care required by a medical practitioner is so stated in Halsbury’s Laws of England
“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, judged in the light of the particular circumstances of each case, 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.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.”
The abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence.
In the opinion of Lord Denning, as expressed in Hucks v. Cole, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
6. The second authority is reported in Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre and others 2010 (3) SCC 480 wherein it was held:-
Lord Atkin in his speech in Andrews v. Director of Public Prosecutions stated, “….Simple lack of care — such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established.” Thus, a clear distinction exists between “simple lack of care” incurring civil liability and “very high degree of negligence” which is required in criminal cases. Lord Porter said in his speech in the same case –
“A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability.
The aforementioned statement of law in Andrews’s case (supra) has been noted with approval by this court in Syad Akbar v. State of Karnataka. This court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. The court opined that
28…there is a marked difference as to the effect of evidence, viz. 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. Where 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.
On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-
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.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
7. The authorities cited by the counsel for the petitioner rather support the case of opposition. The prime reason which led the State Commission to reverse the order passed by the District Court is that this is an indisputable fact that Dr. Rajiv Gupta petitioner is not a surgeon. There is no evidence, or the name to show that services of any surgeon were actually pressed into service. No affidavit of any surgeon saw the light of the day. The apex court has laid emphasis on competence of the doctor. The petitioner is not even a surgeon, what to talk of competence. The petitioner has transgressed the ambit of his competence.
8. The Tagore Hospital in a better way refused to admit such a serious patient. This fact was known to the petitioner. He should have referred the patient to PGI Chandigarh and if there was emergency to the Local Civil Hospital where there is always a surgeon.
9. The facts of this case speak for themselves. The patient was admitted on 5.12.2004. His several Tests were conducted. The petitioner could not show to the Commission that the patient had already got the liver injury before his admission into his hospital. It is not denied that the petitioner inserted pipe on 5.12.2004 and again on 13.12.2004 after removing the old pipe. The condition of patient deteriorated with the insertion of second pipe. As a matter of fact, it was a case of accident and the physician should not have taken a step forward without consulting a surgeon.
10. Moreover, the State Commission was pleased to observe:-
“The complainant has placed on record the discharge and follows up card issued by the opposite party. To substantiate his case the complainant has placed on record, the discharge card Ex as C-104 issued by the PGI Chandiagrh, in which injury of liver is mentioned. There is one more documents Ex.O-19 which has been issued by the Mdical Superintendent Nehru Hospital PGI Chandigarh to Dr. S.K. Katyal (Genral Surgeon) General Hospital Karnal in response to his letter dt. 08.04.2005 and 29.04.2005. This letter is neither on any letter head of the Hospital nor does it bear any stamp on it. This letter however confirms that in operation there was necrosed and contused segment VII, VIII & part of the segment V of liver. It also confirms that there was rent in Rt. Dome of diaphragm with herniation of Rt transverse colon. The opposite party no.1 has admitted that the discharge from the tube was continuous and there was mild jaundice. It has also been confirmed by the opposite party no.1 that the condition of the complainant was deteriorating. This shows that the liver was damaged during the insertion of the tune for the second time when the old tube was changed. This clearly shows that the opposite party while inserting the tube on 13.12.2004 the liver was damaged due to which the condition of the complainant went from bad to worse. Ex. O-19 clearly confirms this fact.”
11. Affidavits of Shri K.K. Seth general surgeon, who examined the patient on 7.12.2004 and Dr. Parveen Goyal another surgeon who visited the patient on 17.12.2004 and who opined that the complainant should be shifted to PGI Chandigarh, were never placed on the record. The admitted visit of Dr. Parveen Goyal clearly goes to show there was something amiss in the treatment of the complainant. The complainant was left further to suffer for a period of about two months.
12. It is interesting to note that in its written statement, the petitioner averred,
“To look for any associated abdominal or liver injury, the patient underwent repeated ultrasound examination by Dr. Arun Goyal (MD Radiology) (on 5/12, 6/12, 8/12, 10/12, 12/12). None of these picked up any evidence of liver injury. X-Ray of chest was done several times and all X-Rays revealed fractures of ribs and good position of the tube
The consultation of Dr. K. K. Seth MS, General Surgeon was taken on 7/12/04. He examined the patient and conducted needle aspiration in the abdomen to look for any liver injury and advised that the same treatment should continue in Hospital Amritdhara.”
“….. However in view of the pain and continuing discharge form the chest tube strict vigil was maintained and when the US done on 13.12.04 showed small amount of fluid in the abdomen, a CT scan of the patient was obtained on the same day which also did not pick up any injury to the diaphragm or the liver. Dr. KK Seth was consulted again and he again did a needle aspiration of the abdomen which did not reveal any significant result. Therefore he advised that no surgical intervention was warranted and conservative treatment was continued.”
“In view of the continuing discharge from the tube and the presence of mild jaundice, another surgeon Dr. Parveen Garg was consulted on 17.12.04. His opinion was that the general condition of the patient was fair and that the tube was in proper position but as the tests being done in Karnal had not revealed the true cause of the continuing aspiration through the tube, further tests like endoscopy could be done from a higher institute. The situation was discussed with the relatives and the patient and it was decided to shift the patient to PGI Chandigarh on the next day.”
13. Falsehood of the above said averments stand proved by the significant document issued by the PGI, dated 30.5.2005, which reads as follows:-
“Subject:- Regarding treatment of Shri Sukhbir Singh.
Reference your letter No. Steno 05/1376 dated 8.4.05 and Steno 05/1634 dated 29.4.2005 on the subject cited above.
As desired vide letter under reference the comments are Dr. Rajesh Gupta, Department of General Surgery, PGI, Chandigarh are as under:-
1. Ultrasound examination finding at the time of admission No. 1047 dated 18.12.2004 – contusion of the right lobe of liver.
At operation, there was neorosed and contused segment VII, VIII and part of segment V of liver. There was rent in the right dome of diaphragm with herniation of right transverse colon. The intercostals tube was lying in situ.
The chest tube was lying insitu. Such extensive necrosis of liver cannot be explained by intercostals tube insertion.
For Medical Superintendent
Nehru Hospital, PGI,
14. The Revision petition is sans merit and deserves dismissal which we hereby direct.
(J. M. MALIK, J)