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. Low blood pressure.

b. Enlarged veins visibly on both the side of the neck.

c. General Weakness

d. Loss of appetite

e. Detection of water/liquid in the chest area

f. Difficulty in breathing (external oxygen supply was applied intermittently)

g. Temporary loss of consciousness

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.