Test for Determining Medical Negligence [ORDER]
Medical Negligence - In spite of repeated request for necessary treatment for curing the accumulation of fluid/water in the chest area, doctor mechanically opined that the problem was due to old age of the deceased patient and mechanically advised the deceased patient to drink milk - there was medical negligence and deficiency of service on the part of the doctor.
BEFORE THE MANIPUR
STATE CONSUMER DISPUTES REDRESSAL COMMISSION (STATE COMMISSION) IMPHAL MANIPUR
BEFORE: HON'BLE MR. JUSTICE T. Nandakumar PRESIDENT HON'BLE MRS. A.Nibedita Devi MEMBER
Dated : 10 Aug 2018
First
Appeal No. A/1/2018
(Arisen out of Order Dated 16/02/2018 in Case No.
CC/25/2014 of District Imphal)
Shija Hospital & Research Institute & 1
othors Dr.Ksh.Kala Singh
Vs.
Khumanthem Phunindro Singh & ors and Others
For
the Appellant: Mr.Ch. Dhananjoy Singh and Mr.O Rajesh Singh, Advocate Mr.O.Rajesh
Singh, Advocate For the Respondent: Mr.W. Darakeshwor Singh, Advocate Mr.W.Darakeshwor
Singh and Mr. E.Loyangsmbs Meitei, Advocate
ORDER
By
Justice T. Nandakumar Singh.
This present First
Appeal is filed by the respondents in the Complaint Case No. 25 of 2014 against
the Judgment and Order dated 16.02.2018 passed by the Learned District Consumer
Disputes Redressal Forum, Imphal wherein and whereunder the District Consumer
Forum held that the Complainants (Respondents in the present appeal) are
entitled to compensation to the tune of Rs.4,80,000/- (Rupees Four lakhs Eighty
thousand) only for causing loss of human life (deceased patient), a sum of Rs.1
lakh for mental tension and agony and a sum of Rs.10,000/- (Rupees Ten
thousand) only as the cost of litigation totaling Rs.5,90,000/- (Rupees Five
Lakh Ninety thousand) only to be paid within one month from the date of
judgment and order, failing which 12% interest per annum shall be charged on
the awarded amount.
2.
Heard
Mr. Ch. Dhananjoy Singh, learned senior counsel assisted by Shri Ch. Anthony appearing
for the Appellants (Respondents in Complaint Case No. 25 of 2014) and Mr. W. Darakeshwar, learned
counsel appearing for the respondents (Complainants in C.C. No. 25 of 2014).
The fact leading to the filing of the Complaint Case No. 25 of 2014 by the
respondents had been enumerated in detail in the impugned judgment and order dated
16.02.2018 and as such fact in detail is not required to be repeated in the
present judgment and order but, the fact, in short, sufficient for deciding the
present appeal is recapitulated hereunder.
3.
The
Respondent No.1 (Complainant in C.C. No.25 of 2014) is the husband of the late Khumanthem
(Ongbi) Hemabati Devi (hereinafter referred to as “deceased patient”) and the respondent
Nos.2, 3, 4 & 5 are the sons and daughters of the deceased patient
respectively. The deceased patient was a kidney patient and a patient of one
Dr. Gulliver of Kwakeithel, Imphal since the month of September, 2011. On the
advice of Dr. Gulliver, the deceased patient was admitted to Shija Hospital on
17.03.2012 following to a weakness due to continuous vomiting. Appellant No.2 examined
the deceased patient and proposed for operation for implanting a temporary
pacemaker and the operation for implanting temporary pacemaker was conducted by
the Appellant No.2 on 17.03.2012. On the advice of the Appellant No.2, the
temporary pacemaker was removed on 20.03.2012 but soon after the removal of the
temporary pacemaker the condition of the deceased patient became very serious
and the appellant No.2 examined the deceased patient and advised for replanting
temporary pacemaker which would be substituted by a permanent pacemaker after 2
or 3 days to ensure survival of the deceased patient. The second operation for implanting
temporary pacemaker of the deceased patient was conducted by the appellant No.2
on 20.03.2012 and the temporary pacemaker was implanted for the second time on
the same day of removal of the temporary pacemaker earlier implanted in the
deceased patient.
4.
The
appellant No.2 arranged for procurement of the permanent pace maker from a
Kolkata based firm, i.e., the Proforma respondent No.3 and asked the
respondent/complainant to arrange a sum of Rs.1,50,000/- (Rupees One lakh fifty
thousand) only being the price of the permanent pace maker. The Appellant No.2
made an assurance that the deceased patient would survive for at least 2 to 3
years once the permanent pace maker was implanted and on such assurance the complainants
agreed for fourth operation of the deceased patient for implanting the
permanent pace maker. The fourth operation for implanting the permanent pace
maker was conducted on 25.03.2012 by the Appellant No.2. After the operation,
the condition of the deceased patient was not improved against the expectations
of the deceased patient’s Husband and children and assurance given by the
appellant No.2. The complications of the deceased patient were:-
a.
b.
c.
d.
e.
f.
g.
h. Not healing of the stitch area/infection.
5.
In
spite of repeated complaints made by the Complainant to the Appellant No.2, he
did not even take notice of deteriorating the condition of the deceased patient
and did not even give any sort of treatment to meet the situation of
accumulation of the fluid/water in the chest area of the deceased patient. The
Appellant No.2, in spite of repeated request, did not take care for accumulation
of fluid/water in the chest area of the deceased patient and mechanically
opined that all such problems were due to old age of the deceased patient and
low intake of solid food including milk products, liquids/water and advised the
deceased patient to consume more foods and to drink milk.
6.
The
attitude of the Appellant, at the crucial moment of the deceased patient, was
so casual that he did not even inform the condition of the deceased patient and
the type of disease of the deceased patient and also the type of treatment
required for the type of the illness suffered by the deceased patient. Further,
the Appellant No.2 never disclosed about the advantage and disadvantage of
implanting permanent and temporary pace maker and also requirement of operating
the deceased patient for 4(four) times within 8 (eight) days. The deceased
patient died just after 9 (nine) days from the date of implanting permanent
pace maker i.e. on 4 th April, 2012 at 2.55
a.m. The Complainant alleged in the complaint that because of deficiency of
service and negligence on the part of the Appellant there was the hasty death
of the deceased patient on 4 th April, 2012 at
2.55.a.m.. The complainant filed the complaint case no. 25 of 2014 against the appellant
and Proforma respondent praying for payment of compensation for deficiency of
service or negligence of the Appellants and Proforma respondent.
7.
The
Appellants filed a joint written statement in the Complaint Case No.25 of 2014
wherein the appellants stated that the Appellant No.2 said to the party of the
deceased patient that the deceased patient might survive for 2 or 3 years only
because of multiple problems. The Appellant No.2 never gave guarantee for
survival of the deceased patient for the said duration. The complications are
unpredictable during medical treatment. The deceased patient was having multiple
medical problems including increase cardiac enzymes suggestive of heart attack (Myocardial
Infarction). Permanent pace make was implanted on 25.03.2012 after due consent
of the patient party. In the written statement, the Appellants did not state
clearly that the appellants had treated/had given due care to the accumulation
of fluid/water in the chest of the deceased patient at their best level.
However, the Appellants had pleaded in the written statement that the appellant
No.2 had explained the advantage and disadvantage of permanent pacemaker to the
party of the deceased patient. In the written statement, the Appellants simply
denied the allegation of the defective device and non-explanation of the
advantages and disadvantages of four times operation of the deceased patient
within a short period of 8 (eight) days to the party.
8.
It
is surprising that the Appellants did not even appear before the District Forum
to give their statement in support of their case in their written statement and
did not even care to produce any supporting documents. In other words, the
Appellants did not even attempt to prove their pleaded case in the written
statement. On the other hand, the Complainant/respondents had examined 3
(three) witnesses and 4 th one was not examined
due to non-appearance of the appellants’ counsel before the District Consumer
Forum, Imphal. The 3 witnesses were cross-examined and the complainant also
produced as many as 16 documents in support of their pleaded case in the
complaint. The Learned District Forum, Imphal had discussed the statement of the
PWs and also the documents produced by the complainants in support of their
case in the Complaint. After appreciating the evidence i.e., oral and
documentary evidence produced in support of the case of the complainants in the
Complaint Case No. 25 of 2014, Learned District Forum had come to the finding
that the Complainants had successfully prove it to be a case of clear medical
negligence on the part of the respondents (Appellants of the present Appeal),
due to which the patient suffered for the improper and careless conduct of the
Appellants resulting to death of the deceased patient. After such finding, the
learned District Forum, Imphal had ordered for payment of compensation in the
manner indicated above.
9.
The
Appellants filed the present Appeal, in spite of knowing quite well that the
Appellants did not even attempt to prove their pleaded case in the written
statement by examining the witnesses or by producing documents or by at least
appearing before the learned District Forum to give their statement in support
of their pleaded case in their written statement, had filed the present Appeal
only by relying on some so called admission of the witnesses to the stray
question put to them in the cross examination.
10. The point, as to
whether the admission to some stray questions in the cross examination is an
evidence or not had been set at rest by the Apex Court in Chikkam Koteswara
Rao, Appellant v. Chikkam Subbarao and others, Respondents reported in AIR 1971
SC 1542. The Apex Court in
Chikkam Koteswara Rao’s case (supra) held that before right of party can be considered
to have been defeated on the basis of an alleged admission by him the
implication of the statement made by him must be clear and conclusive. There
should be no doubt or ambiguity about the alleged admission. The Apex Court
further held that admission must be read along with the evidence given by him
in his examination in chief. Para No. 5, 6 and 7 of the AIR in Chikkam Koteswara
Rao’s case (supra) read as follows:-
“5. We shall now proceed to consider
the true effect of the statement made by the appellant. In his
chief-examination he specifically stated.
“The lands purchased in
my name under Exh. B-3 to seven are my own property. Since then I have been
paying taxes on them under Exhs.
B-59 and 60 receipt
books. The lease deeds for those lands are Exs. B-61 to 66 besides
Exhs. B-14, 15, 17 to 20.”
6. From this statement, it is clear that he had put
forward a positive case that the lands in question are his separate properties.
In the course of his cross-examination it was elicited from him.
“Under Ex. B-6 the
consideration was paid by my father. I do no know how he got it.”
7. This
admission must be read along with the evidence given by him in his chief-examination.
Soon after he made that statement, he also stated:
“From the time I took the
sale deed Exh. B-6, I was paying taxes. I filed those tax receipts in a
separate book for my personal properties. My father was paying taxes on family
lands, separate from my lands.”
11. The ratio decidendi
of Chikkam Koteswara Rao’s case (supra) had been followed by Division Bench of
Karnataka High Court in Prameshwari Bai vs. Muthojirao Scindia AIR 1981 Karnataka
40 and held that stray sentences elicited in cross-examination is not
admission. Para 19 of the Prameshwari Bai’s case (supra) read as follows :
“19. …………… All of a sudden, however, in the course of cross-examination of the
respondent, the counsel has put a random suggestion whether the marriage had
not taken place in the year 1957. It is obvious from
reading the evidence of the petitioner and the interrogatories that this
suggestion eminates from the lawyer and was not rooted in the knowledge of the
petitioner. Therefore, no evidentiary value can be attached. Besides a mere
suggestion made and denied is not evidence at all. The petitioner has stated in
the course of her evidence thus :
“I do not remember on what date and during
which year I was proposed to the respondent.”
Again she has stated:
“I have
forgotten the date of my marriage ……… I do not know the name of Purohit. The
Purohit was a Brahmin.
It is in this context
that we have to appreciate the suggestion put by the Counsel to the respondent
as also the so called admission made by the respondent. Having clearly stated
that she does not remember as to the date or year of the marriage, it is
elicited from her in the further cross-examination that the marriage took place
after the respondent retired. This is what she has stated :
“Respondent was
retired by then”.
It may be seen that
this sentence occurred in the same para in the beginning of which she has
stated “I have forgotten the date of marriage.” It is further elicited from her
“my father presented a suit and silver articles to the respondent. It may be
about two years earlier to the marriage, the respondent had retired from the
service”. Thus, it is clear that these stray sentences elicited in the
cross-examination The Supreme could hardly be construed as admission. Court of
India, in the case of Chikkam Koteswara Rao v. Chikkam Subbarao, (AIR 1971 Sc
1542) speaking through Justice Hegde, as he then was, he observed in this
behalf thus:
“This admission must be read along with the evidence given by him
in his chief examination ……”
12. The Apex Court in Union
of India Vs. Ibrahim Uddin & Anr. (2012) 8 SCC 148 held that it is the
duty of the party to lead the best evidence in his possession, which could
throw light on the issue in controversy, as such, the Court must draw adverse
inference in case of failure; and also that the Court cannot lost sight of the
law that burden of proof is on the party which makes the factual averment.
Para 12 and 24 of the SCC in Ibrahim Uddin’s case (Supra) read as follows :
“12. Generally, it is the duty of the party to lead the best evidence in his possession,
which could throw light on the issue in controversy and in case such material
evidence is withheld, the court may draw adverse inference under Section 114
Illustration (g) of the Evidence Act notwithstanding, that the onus of proof
did not lie on such party and it was not called upon to produce the said
evidence. [Vide Murugesam Pillai vs. Manickavasaka Pandara (1916-17) 44 IA
90 : AIR 1917 PC 6, Hiralal v. Badkulal (AIR 1953 SC 225), A. Raghavamma v. A.
Chenchamma (AIR 1964 SC 136), Union of India v. Mahadeolal Prabhu Dayal (AIR
1965 SC 1755), Gopal Krishnaji Ketkar v. Mohd. Haji Latif (AIR
1968 SC 1413), BHEL v. State of U.P. (2003) 6 SCC 528, Mussauddin Ahmed v.
State of Assam (2009) 14 SCC 541 and Khatri Hotels (P) Ltd. v. Union of India
(2011)9 SCC 126.]
24. Thus, in view of the above, the law on the issue can be
summarized to the effect that the issue of drawing adverse inference is
required to be decided by the court taking into consideration the pleadings of
the parties and by deciding whether any document/evidence, withheld, has any
relevance at all or omission of its production would directly establish the
case of the other side. The court cannot lose
sight of the fact that burden of proof is on the party which makes a factual
averment……………………”.
12A. In the present
case, the Appellants utterly fail to discharge their burden of proof of the factual
averment. A case of the party cannot be said to have been proved on the basis
of a mere pleading which is neither supported by oral nor by documents nor by
the statement of the party before the Court.
13.
In
a Civil Suit or in a suit of Civil Nature, the plaintiff cannot be expected to
prove his case beyond any reasonable doubt, but a high degree of probability
lending assurance of case of the plaintiff would be enough to shift the onus on
the defendant and if the defendant does not succeed in shifting back the onus,
the plaintiff’s burden of proof can safely be deemed to have been discharged.
The Apex Court in R.V.E. VENKATACHALA GOUNDER vs. Arulmigu Viswesaraswami
& V.P. Temple & Anr (2003) 8 SCC 752 held that being a civil case,
the plaintiff cannot be expected to prove his title beyond any reasonable
doubt; a high degree of probability lending assurance of the availability of
title with him would be enough to shift the onus on the defendant and if the
defendant does not succeed in shifting back the onus, the plaintiff’s burden of
proof can safely be deemed to have been discharged.
14.
The
Apex Court in Nizam’s Institute of Medical Sciences vs. Prasanth S. Dhananka
& Ors. (2009) 6 SCC 1 held that once the claimant discharges the
initial burden by making out a case of negligence, held, onus shifts on to the
hospital or doctors to satisfy the court that there was no lack of care or
diligence. Para 77 and 79 of the Nizam’s case (supra) read as follow :
“77.
We are also cognizant of the fact that in a case involving medical negligence,
once the initial burden has been discharged by the complainant by making out a
case of negligence on the part of the hospital or the doctor concerned, the
onus then shifts on to the hospital or to the attending doctors and it is for
the hospital to satisfy the court that there was no lack of care or diligence.
79. In the light of the
above facts, we have no option but to hold that the attending doctors were
seriously remiss in the conduct of the operation and it was on account of this
negligence that the paraplegia had set in. We accordingly confirm the findings
of the Commission on this score as well.”
15A. The Apex
Court in Savita Garg (Smt) vs. Director, National Heart Institute (2004) 8
SCC 56 held that once the complainant has filed a claim and has successfully
discharged the initial burden that the hospital was negligent, and that as a
result of such negligence the patient died, then in that case the burden lies
on the hospital and the concerned doctors who treated the patient to show that
there was no negligence involved in the treatment . Hospital is bound to
produce the record to show that there was no negligence. Para 10 of the SCC in
Savita Garg’s case (supra) reads as follow
“10. …………… The patients once they
are admitted to such hospital, it is the responsibility of the said hospital or
the medical institutions to satisfy that all possible care was taken and no
negligence was involved in attending the patient. The burden cannot be placed
on the patient to implead all those treating doctors or the attending staff of
the hospital as a party so as to substantiate his claim. Once a patient is
admitted in a hospital it is the responsibility of the hospital to provide the
best service and if it does not, then the hospital cannot take shelter under
the technical ground that the surgeon concerned or the nursing staff, as the
case may be, was not impleaded, and therefore, the claim should be rejected on
the basis of non-joinder of necessary parties. In fact, once a claim petition
is filed and the claimant has successfully discharged the initial burden that
the hospital was negligent, and that as a result of such negligence the patient
died, then in that case the burden lies on the hospital and the doctor
concerned who treated that patient, that there was no negligence involved in
the treatment. Since the burden is on the hospital, they can discharge the same
by producing that doctor who treated the patient in defence to substantiate
their allegation that there was no negligence. In fact it is the hospital
which engages the treating doctor thereafter it is their responsibility. The
burden is greater on the institution/hospital than that on the claimant. The
institution is a private body and they are responsible to provide efficient
service and if in discharge of their efficient service there are a couple of
weak links which have caused damage to the patient then it is the hospital
which is to justify the same and it is not possible for the claimant to implead
all of them as parties.”
Duty Cast On the Appellate Court
16. The Apex
Court, keeping in view of the ratio decidendi laid down in Girja Nandini And
Ors vs Bijendra Narain Choudhury reported in AIR 1967 SCC 1128, had
discussed the duties of the First Appellate Court in Santosh Hazari vs.
Purushottam Tiwari (2001) 3 SCC 179 and held that the judgment of the
appellate court must reflect its conscious application of mind and record
findings supported by reasons. The task of an appellate court affirming the
findings of the trial court is an easier one. The appellate court agreeing with
the view of the trial court need not restate the effect of the evidence or
reiterate the reasons given by the trial court. Para 15 of the SCC in Santosh
Hajari’s case (Supra) read as follows :
“15. ............ The appellate
court has jurisdiction to reverse or affirm the findings of the trial court.
First appeal is a valuable right of the parties and unless restricted by law,
the whole case is therein open for rehearing both on questions of fact and law.
The judgment of the appellate court must, therefore, reflect its conscious
application of mind and record findings supported by reasons, on all the issues
arising along with the contention put forth, and pressed by the parties for
decision of the appellate court. The task of an appellate court affirming the
findings of the trial court is an easier one. The appellate court agreeing with
the view of the trial court need not restate the effect of the evidence or
reiterate the reasons given by the trial court; expression of general agreement
with reasons given by the court, decision of which is under appeal, would
ordinarily suffice (See. Girijanandini Devi v.
Bijendra Narain Choudhary (AIR 1967 SC 1124)). We would, however, like to sound
a note of caution. Expression of general agreement with the findings recorded
in the judgment under appeal should not be a device or camouflage adopted by
the appellate court for shirking the duty cast on it. While writing a judgment
of reversal the appellate court must remain conscious of two principles. Firstly, the findings
of fact based on conflicting evidence arrived at by the trial court must weigh
with the appellate court, more so when the findings are based on oral evidence
recorded by the same Presiding Judge who authored the judgment. ………………”
17.
The Apex Court was of the view similar with the views in (1) Girijanandini Devi’s
case (Supra) and (2) Santosh Hazari’s case (Supra) in another case i.e. Ramakant
Rai Vs. Madan Rai and Ors (2003) 12 SCC 395 . Para 17 of the SCC in
Ramakant Rai’s case (Supra) read as follows :
“17. It was submitted that
when two views are possible and the High Court with well-chiselled conclusions
has accepted a view, it would not be proper to exercise jurisdiction under
Article 136 of the Constitution. Arguments are not substitutes for reasoning.
More so when the appellate court upsets conclusions of the lower court. A party
is not permitted to say that the arguments are what the court intended to
accept or to convey. When the appellate court concurs with the views of the
trial court the necessity for elaborately dealing with various aspects may not
always be necessary. But when a view contrary to that of the lower court is
expressed, it is imperative that reasons therefor should be clearly indicated. There is no scope for
any departure from his basic requirement. Therefore, the plea of the accused-respondents
that even though the judgment of the High Court is not very elaborately
reasoned, yet it can be supplemented by arguments, is a fallacious one.”
Duty of Doctor to give adequate information and consent of the patient/patient party
18.
Under the Doctor-patient relationship and also other medical ethics, doctors
are duty bound to give the best possible treatment which is unavoidably
required as a last resort. Further it is also the bounden duty of the
appellants to furnish adequate information to the patient and his party so as
to enable the patient and his party to make a balanced judgment. The Apex Court
in Samira Kohli vs. Dr. Prabha Manchanda & Anr. (2008) 2 SCC 1 held
that attending doctors should furnish the adequate information to the patient
so as to enable the patient to make a balanced judgment as to whether he should
submit himself to the particular treatment or not. Paras 18, 20 and 49 of the
SCC in Samira’ case (supra) read as follow:
“18. Consent in the context of a
doctor-patient relationship, means the grant of permission by the patient for
an act to be carried out by the doctor, such as a diagnostic, surgical or
therapeutic procedure. Consent can be implied in some circumstances from the
action of the patient. For example, when a patient enters a dentist’s clinic
and sits in the dental chair, his consent is implied for examination, diagnosis
and consultation. Except where consent can be clearly and obviously implied,
there should be express consent. There is, however, a significant difference
in the nature of express consent of the patient, known as “real consent” in UK
and as “informed consent” in America. In UK, the elements of consent are
defined with reference to the patient and a consent is considered to be valid
and “real” when (i) the patient gives it voluntarily without any coercion; (ii)
the patient has the capacity and competence to give consent; and (iii) the
patient has the minimum of adequate level of information about the nature of
the procedure to which he is consenting to. On the other hand, the concept of “informed
consent” developed by American courts, while retaining the basic requirements
of consent, shifts the emphasis on the doctor’s duty to disclose the necessary information
to the patient to secure his consent. “Informed consent” is defined in Taber’s
Cyclopedic Medical Dictionary thus :
“Consent that is given by a person
after receipt of the following information: the nature and purpose of the
proposed procedure or treatment; the expected outcome and the likelihood of
success; the risks; the alternatives to the procedure and supporting
information regarding those alternatives; and the effect of no treatment or
procedure, including the effect on the prognosis and the material risks
associated with no treatment. Also included are instructions concerning what
should be done if the procedure turns out to be harmful or unsuccessful.””
20.
The basic principle in regard to patient’s consent may be traced to the following
classic statement by Cardozo, J. in Schloendorff v. Society of New York
Hospital (211 NY 125 : 105 NE 92 (1914)): (NE p. 93, paras 5-6)
“… Every human
being of adult years and sound mind has a right to determine what shall be done
with his own body; and surgeon who performs an operation without his patient’s
consent commits an assault, for which he is liable in damages.
This principle has been
accepted by an English court also. F. ( Mental Patient : Sterilisation ),
In re ((1990) 2 AC 1 : (1989) 2 WLR 1025 : (1989) 2 All ER 545 sub nom
F. v. West Berkshire HA) the House of Lords while dealing with a case of
sterilisation of a mental patient reiterated the fundamental principle that
every person’s body is inviolate and performance of a medical operation on a
person without his or her consent is unlawful. The English Law on this aspect
is summarized thus in Principles of Medical Law (published by Oxford University
Press, 2nd Edn., edited by Andrew Grubb, p. 133, para 3.04):
“Any intentional
touching of a person is unlawful and amounts to the tort of battery unless it
is justified by consent or other lawful authority. In medical law, this means
that a doctor may only carry out a medical treatment or procedure which
involves contact with a patient if there exists a valid consent by the patient
(or another person authorized by law to consent on his behalf) or if the
touching is permitted notwithstanding the absence of consent.”
49. We may now
summarise principles relating to consent as follows :
(i) A doctor has to seek
and secure the consent of the patient before commencing a “treatment” (the term
“treatment” includes surgery also). The consent so obtained should be real and
valid, which means that : the patient should have the capacity and competence
to consent; his consent should be voluntary; and his consent should be on the
basis of adequate information concerning the nature of the treatment procedure,
so that he knows what he is consenting to.
(ii) The “ adequate
information ” to be furnished by the doctor (or a member of his team) who
treats the patient, should enable the patient to make a balanced judgment as to
whether he should submit himself to the particular treatment or not. This means
that the doctor should disclose (a) nature and procedure of the treatment and
its purpose, benefits and effect; (b) alternatives if any available; (c) an
outline of the substantial risks; and (d) adverse consequences of refusing
treatment. But there is no need to explain remote or theoretical risks
involved, which may frighten or confuse a patient and result in refusal of
consent for the necessary treatment. Similarly, there is no need to explain the
remote or theoretical risks of refusal to take treatment which may persuade a
patient to undergo a fanciful or unnecessary treatment. A balance should be
achieved between the need for disclosing necessary and adequate information and
at the same time avoid the possibility of the patient being deterred from
agreeing to a necessary treatment or offering to undergo and unnecessary
treatment.
(iii) Consent given
only for a diagnostic procedure, cannot be considered as consent for
therapeutic treatment. Consent given for a specific treatment procedure will
not be valid for conducting some other treatment procedure. The fact that the
unauthorized additional surgery is beneficial to the patient, or that it would
save considerable time and expense to the patient, or would relieve the patient
from pain and suffering in future, are not grounds of defence in an action in
tort for negligence or assault and battery. The only exception to this rule is
where the additional procedure though unauthorized, is necessary in order to
save the life or preserve the health of the patient and it would be
unreasonable to delay such unauthorized procedure until patient regains
consciousness and takes a decision.
(iv) There can be a
common consent for diagnostic and operative procedures where they are
contemplated. There can also be a common consent for a particular surgical
procedure and an additional or further procedure that may become necessary
during the course of surgery.
(v) The nature and
extent of information to be furnished by the doctor to the patient to secure
the consent need not be of the stringent and high degree mentioned in Centerbury (Centerbury v. Spence, 464 F 2d 772 : 150 US App DC 263 (1972) but
should be of the extent which is accepted as normal and proper by a body of
medical men skilled and experienced in the particular field. It will depend
upon the physical and mental condition of the patient, the nature of treatment,
and the risk and consequences attached to the treatment.”
NEGLIGENCE/MEDICAL
NEGLIGENCE
19. In Halsbury’s Laws of England – Vol.
6 (3 rd
Edition);
defines Negligence as :
“22. Negligence : duties owned to the patient.
A person who holds
himself out as ready to give medical (a) advice or treatment impliedly
undertakes that he is possessed of skill and knowledge for the purpose. Such a
person, whether he is a registered medical practitioner or not, who is
consulted by a patient, owes him certain duties, namely, a duty of care in
deciding whether to undertake the case; a duty of care in deciding what
treatment to give: and a duty to care in his administration of that treatment
(b). A breach of any of these duties will support an action for negligence by
the patient (c),
23. Degree of skill and care required.
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 he requires (d); 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 (d); 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, although a body of adverse
opinion also existed among medical men (e).”
20. The Apex
Court had discussed the meaning of medical negligence in Municipal Corporation
of Greater Bombay –vs- Laxman Iyer and another (2003) 8 SCC 731 and held that
the negligence is omission of duty caused either by an omission to do something
which a reasonable man guided upon those considerations, who ordinarily by
reason of conduct of human affairs would do or be obligated to, or by doing
something which a prudent or reasonable man would not do. Negligence is a
failure to observe, for the protection of interests of another person, the
degree of care, precaution and vigilance which the circumstances justly demand.
The idea of negligence of duty are strictly co-related. Para 6 of the SCC in
Municipal Corporation’s case (supra) read as follows:
“6.
..................It is first necessary to find out what is a negligent act. Negligence is omission
of duty caused either by an omission to do something which is a reasonable man
guided upon those considerations, who ordinarily by reason of conduct of human
affairs would do or be obligated to, or by doing something which a prudent or reasonable man would not do.
Negligence does not always mean absolute
carelessness, but want of such a degree of care as is required in particular
circumstances. Negligence is failure to observe, for the protection of the
interests of another person, the degree of care, precaution and vigilance which
the circumstances justly demand, whereby such other person suffers injury. The
idea of negligence and duty are strictly correlative. Negligence means either
subjectively a careless state of mind, or objectively careless conduct.
Negligence is not an absolute term, but is a relative one; it is rather a
comparative term. No absolute standard
can be fixed and no mathematically exact formula can be laid down by which
negligence or lack of it can be infallibly measured in a given case. What
constitutes negligence varies under different conditions and in determining
whether negligence exists in a particular case, or whether a mere act or course
of conduct amounts to negligence, all the attending and surrounding facts and circumstances
have to be taken into account. It is absence of care according to
circumstances. To determine whether an act would be or would not be negligence,
it is relevant to determine if any reasonable man would foresee that the act
would cause damage or not. The omission to do what the law obligates or even
the failure to do anything in a manner, mode or method envisaged by law would
equally and per se constitute negligence on the part of such person. If the
answer is in the affirmative, it is negligent act. Where an accident is due to negligence
of both parties, substantially there would be contributory negligence and both
would be blamed. In a case of contributory negligence, the crucial question on
which liability depends would be whether either party could, by exercise of
reasonable care, have avoided the consequence of the other’s negligence.
Whichever party could have avoided the consequence of the other’s negligence
would be liable for the accident. If a person’s negligent act or omission was
the proximate and immediate cause of death, the fact that the person suffering
injury was himself negligent and also contributed to the accident or other
circumstances by which the injury was caused would not afford a defence to the
other. Contributory negligence is applicable solely to the conduct of a
plaintiff .
21.
The
Apex Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & Ors (2009)
9 SCC 221 held that negligence is an omission to do something which ought
to have been done or an act of commission which ought not have been done in law. Para 135 and 136 of the SCC in Malay Kumar Ganguly’s case (supra) read as
follow :
“135. 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. (See Law of Torts, Ratanlal &
Dhirajlal, 24 th Edn. 2002, at
pp. 441-42) Negligence means “either subjectively a careless state of mind, or
objectively careless conduct. It is not an absolute term but is a relative one;
it is rather a comparative term. In determining whether negligence exists in a
particular case, all the attending and surrounding facts and circumstances have
to be taken into account”. (See Municipal Corpn. of Greater Bombay v. Laxman
Iyer (2003) 8 SCC 731 : 2004 SCC(Cri) 252, SCC para 6, Advanced Law Lexicon, P.
Ramanatha Aiyar, 3 rd Edn.
2005, p. 3161.)
136. Negligence is strictly nonfeasance and not malfeasance. It
is the omission to do what the law requires, or the failure to do anything in a
manner prescribed by law. It is the act which can be treated as negligence without
any proof as to the surrounding circumstances, because it is in violation of
statute or ordinance or is contrary to the dictates of ordinary prudence.”
22.
The Apex Court in Martin F.D’souza vs. Mohd. Ishfaq (2009) 3 SCC 1 held
that
“47. …………
Precautions which doctors/hospitals/nursing homes should
take
(a) Current practices, infrastructure, paramedical and other staff, hygiene
and sterility should be observed strictly. Thus, in Sarwat Ali Khan v. Prof R. Gogi (OP No.
181 of 1997 decided on 18-7-2007 (NC)) the facts were that out of 52 cataract
operations performed between 26-9-1995 and 28-9-1995 in an eye hospital, 14
persons lost their vision in the operated eye. An enquiry revealed that in the
operation theatre two autoclaves were not working properly. This equipment is
absolutely necessary to carry out sterilization of instruments, cotton, pads,
linen, etc. and the damage occurred because of its absence in working condition. The doctors were held liable.
(b) No prescription
should ordinarily be given without actual examination. The tendency to give
prescription over the telephone, except in an acute emergency, should be
avoided.
(c) A doctor should not
merely go by the version of the patient regarding his symptoms, but should also
make his own analysis including tests and investigations where necessary.
(d) A doctor should not
experiment unless necessary and even then he should ordinarily get a written
consent from the patient.
(e) An expert should be
consulted in case of any doubt. Thus, in Indrani Bhattacharjee (OP No. 233 of
1996 decided on 9-8-2007 (NC)), the patient was diagnosed as having “mild
lateral wall ischaemia”. The doctor prescribed medicine for gastroenteritis,
but he expired. It was held that the doctor was negligent as he should have
advised consulting a cardiologist in writing.
(f) Full record of the
diagnosis, treatment, etc. should be maintained.”
23.
The Apex Court in Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1
held that failure to maintain standard of care prescribed by law thereby
committing breach of such duty is medical negligence. Para 11 and 48 of the
SCC in Jacob Mathew’s case (supra) read as follow :
“11. According to
Charlesworth & Percy on Negligence (10 th
Edn.,
2001), in current forensic speech, negligence has three meanings. They are: (i)
a state of mind, in which it is opposed to intention; (ii) careless conduct;
and (iii) the breach of a duty to take care that is imposed by either common or
statute law. All three meanings are applicable in different circumstances but any
one of them does not necessarily exclude the other meanings. (para 1.01) The
essential components of negligence, as recognized, are three: “duty”, “breach”
and “resulting damage”, that is to say :
(1) the existence of a duty to take
care, which is owed by the defendant to the complainant;
(2) the failure to
attain that standard of care, prescribed by the law, thereby committing a
breach of such duty; and
(3) damage, which is both casually connected with such
breach and recognized by the law, has been suffered by the complainant. (para
1.23)
If the claimant satisfies the court on the evidence that these three
ingredients are made out, the defendant should be held liable in negligence.
(para 1.24).
48. We sum up our
conclusions as under:
(1) Negligence is the breach of a duty caused by omission
to do something which is 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 goods. 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 of method of treatment
was also available or simply because of more skilled doctor would not have
chosen to follow or resort to that practice or procedure which the accused
followed. When it comes to 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 for
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 (Bolam v. Friern
Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)),
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 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.
(6) The word “gross”
has not been used in Section 304-A IPC, yet it is settled that in criminal law
negligence or recklessness, to be so held, must be of such a high degree as to
be “gross”. The expression “rash or negligent act” as occurring in Section
304-A IPC has to be read as qualified by the word “grossly”.
(7) To prosecute a
medical professional for negligence under criminal law it must be shown that
the accused did something or failed to do something which in the given facts
and circumstances no medical professional in his ordinary senses and prudence
would have done or failed to do. The hazard taken by the accused doctor should
be of such a nature that the injury which resulted was most likely imminent.
(8) 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.”
24. The
complainant/respondents had categorically stated in para 9 of the complaint
that both the respondents i.e. the present appellants never disclosed to the
family of the deceased patient about the advantages and disadvantages of
implanting the pacemaker. Therefore, it is a clear case of the complainant that
the respondents did not give adequate information about the advantages and
disadvantages of implanting the temporary pacemaker as well as the permanent
pacemaker and requirement of operation for implanting the pacemaker 4 (four)
times within a short period of 8 (eight) days. All the P.Ws i.e. 3 (three)
P.Ws. had stated very clearly that there was no such disclosure to the member
of the patient party. As discussed above, the appellants did not appear before
the Forum to give their statement in support of their pleaded case and nor
produce any document to show that there was disclosure on the part of the
appellant no.2 regarding the advantages and disadvantages of implanting and
re-implanting the temporary pacemaker and also the permanent pacemaker to the
Complainant. Therefore, this Commission also reaffirm the finding of the
learned District Forum, Imphal that there was a failure to discharge the duties
of the Doctors to give adequate information to the patient. As a result there
was a medical negligence and deficiency of service on the part of the appellant
No. 2 to discharge his duty of a Doctor to his patient.
25.
It
is also clearly alleged in the complaint petition that there was medical
negligence and deficiency of service on the part of the appellants, inasmuch as
the appellants did not even care to take notice of the accumulation of the
fluid/water in the chest of the deceased patient. Over and above, in spite of
repeated request to the appellant No. 2 for necessary treatment for curing the accumulation
of fluid/water in the chest area, he mechanically opined that the problem was
due to old age of the deceased patient and mechanically advised the deceased
patient to drink milk. This pleaded fact had been supported by the statement of
the P.Ws, which is not required to be discussed in detail, inasmuch as this
Commission is confirming the finding of the learned District Forum, Imphal
after appreciating the oral and documentary evidence produced by the
complainant that there was medical negligence and deficiency of service on the
part of the appellant.
26.
Another
argument on the side of the appellant was that the relief granted by the
learned District Forum, Imphal in the complaint case being C.C. No. 25 of 2014
is not exactly tallied with the reliefs sought for in the complaint. The Apex
Court in Achintya Kumar Saha Vs. Nanee Printers & Ors (2004) 12 SCC 368 held
that the court has the jurisdiction to mould the relief. Again the Apex Court in
R. Kapilnath vs. Krishna (2003) 1 SCC 444 held that even when the plaintiff
claim a higher right the court can grant lesser relief entitled to him.
Therefore, the Court has the jurisdiction to grant the relief to the party
according to the entitlement in the given case. Para 5 of the SCC in R.
Kapilnath’s case (Supra) read as follows :
“5. ………………… The plaintiff or the
petitioner may claim a higher right and may succeed in proving only a smaller
right or entitlement to relief but that would not result in disentitling the plaintiff
or the petitioner from succeeding so long as the smaller right successfully
substantiated by him is enough in law to entitle him to a relief against the
defendant.”
Therefore, the submission of the learned senior counsel
regarding relief has no force of law.
27.
For
the foregoing reasons, the impugned judgment and order dated 16.02.2018 passed
by the learned District Consumer Disputes Redressal Forum, Imphal in Complaint
Case No. 25 of 2014 is not called for interference. Accordingly, the present
appeal is devoid of merit. Hence, the present appeal is dismissed .
28.
In
the result, as directed by the learned District Consumer Disputes Redressal
Forum, Imphal in its judgment and order dated 16.02.2018 in Complaint Case No.
25 of 2014, the amount of compensation and the cost of litigation totaling Rs.
5,90,000/- (Rupees five lakh ninety thousand) only shall be paid to the
complainants (respondents in the present appeal) by the Appellants within a
period of one month from the date of this judgment and order, failing which 12%
interest per annum will be charged on the awarded amount.
29.
Statutory
deposit, if any, shall be refunded to the appellants on being identified by one
counsel known to this Commission.
30.
Send
down the records.
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