Consumer Protection – Medical negligence – When not – Complaint filed against appellants-hospital and doctor, alleging medical negligence in treating the patient-deceased – Compensation awarded by NCDRC – On appeal, held: Patient was in serious condition impending gangrene even before admission to the hospital – Thus, even after surgery and re-exploration, if the patient does not survive, the fault cannot be fastened on the doctors as a case of medical negligence – A doctor is expected to provide reasonable care which is not proved to be lacking in the present case – Complainant led no evidence of experts to prove the alleged medical negligence except their own affidavits – Medical record produced does not show any omission in the manner of treatment – Experts of different specialities and super-specialities of medicine were available to treat the patient – Sole basis of finding the appellants negligent was res ipsa loquitor which would not be applicable keeping in view the treatment record produced by the hospital and the doctor – There was never a stage when the patient was left unattended – Digital Sub-Traction Angiography (DSA test) was conducted by the hospital however, since it became dysfunctional, considering the critical condition of the patient, an alternative angiography test was advised and conducted and the re-exploration was thus planned – If the operation theatres were occupied at the time when the operation of the patient was contemplated, it cannot be said that there is a negligence on the part of the hospital – Order passed by NCDRC set aside – Complaint dismissed.
Tort – res ipsa loquitor – Applicability of – Discussed. Allowing the appeals, the Court
HELD: 1.1 The Commission while analyzing the evidence observed that the complainant had filed evidence affidavits but the Hospital and the Doctor, though have filed their written versions, but have not filed evidence by way of affidavits except an affidavit of Dr. ‘K’. Such primary observation is itself erroneous. The Hospital and the Doctor had filed their written version by way of affidavit dated 7.1.2000 i.e., the same date on which Dr. ‘K’ had filed an affidavit. The Commission has overlooked the fact that written version is by way of an affidavit. Later, the Hospital had also filed evidence affidavit on 13.07.2009 whereas the Doctor had filed a short affidavit on 30.8.2009 reiterating and confirming the statements, averments and the contentions raised in the written version filed on 7.1.2000. Thus, there is factual error in the order of the Commission. The basis of finding the Doctor negligent in providing medical care is not sustainable as there are both legal and factual errors in the findings recorded by the Commission. Gangrene was not found to be impending after few days of admission to the Hospital but even before the patient was admitted. The patient was in critical condition when the Doctor was consulted on 21.4.1998 and surgery was thereafter performed within two days. [Paras 13, 17 and 18][1131-B-D; 1132-G-H; 1133-B]
1.2 The non-working of the DSA machine and consequent delay in performing the test cannot be said to be negligence on the part of the Doctor or the Hospital. The DSA machine is a large, expensive and complicated machine which unfortunately developed certain technical problem at the time when patient had to be tested. Any machine can become non-functional because of innumerable factors beyond the human control as the machines involve various mechanical, electrical and electronic components. The DSA test was conducted in the Hospital on 22.4.1998 and hence DSA machine cannot be said to be dysfunctional for a long time. The alternative process to determine the blood flow was carried out by angiography and the decision for re-exploration was taken at 12.30 p.m. No fault can be attached to the Hospital if the operation theatres were occupied when the patient was taken for surgery. Operation theatres cannot be presumed to be available at all times. Therefore, non-availability of an emergency operation theatre during the period when surgeries were being performed on other patients is not a valid ground to hold the Hospital negligent in any manner. There is no proof that there was any negligence in performing the surgery on 23.4.1998 or in the process of re-exploration on 24.4.1998. The allegation is of failure of the Doctor to take the follow-up action after surgery on 23.4.1998, a delayed decision to amputate the leg subsequent to re-exploration on 24.4.1998, and the alleged undue foreign visit of the Doctor. In respect to such contention of the Doctor being on a foreign visit, it is well known a medical professional has to upgrade himself with the latest development in his field which may require him to attend conferences held both in and outside the country. Mere fact that the Doctor had gone abroad cannot lead to an inference of medical negligence as the patient was admitted in a hospital having specialists in multi-faculties. It is a case where the patient was in serious condition impending gangrene even before admission to the Hospital but even after surgery and re-exploration, if the patient does not survive, the fault cannot be fastened on the doctors as a case of medical negligence. It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital which was being expected by the complainant here. A doctor is expected to provide reasonable care which is not proved to be lacking in any manner in the present case. [Paras 19, 23, 24 and 26][1133-C-F; 1134-G-H; 1135-A-B, G-H; 1136-A-B]
1.3 The sole basis of finding of negligence against the Hospital is of res ipsa loquitor. Res ipsa loquitor is a rule of evidence. The complainant had led no evidence of experts to prove the alleged medical negligence except their own affidavits. The experts could have proved if any of the doctors in the Hospital providing treatment to the patient were deficient or negligent in service. A perusal of the medical record produced does not show any omission in the manner of treatment. The experts of different specialities and super-specialities of medicine were available to treat and guide the course of treatment of the patient. The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures. Dr. ‘K’ has been attributed to have informed the complainant that the patient’s legs were not working but Dr. ‘K’ denied all the averments by filing of an affidavit. The sole basis of finding the appellants negligent was res ipsa loquitor which would not be applicable herein keeping in view the treatment record produced by the Hospital and/or the Doctor. There was never a stage when the patient was left unattended. The patient was in a critical condition and if he could not survive even after surgery, the blame cannot be passed on to the Hospital and the Doctor who provided all possible treatment within their means and capacity. The DSA test was conducted by the Hospital itself on 22.4.1998. However, since it became dysfunctional on 24.4.1998 and considering the critical condition of the patient, an alternative angiography test was advised and conducted and the reexploration was thus planned. It is only a matter of chance that all the four operation theatres of the Hospital were occupied when the patient was to undergo surgery. The expectation of the patient to have an emergency operation theatre is not reasonable as the hospital can provide only as many operation theatres as the patient load warrants. If the operation theatres were occupied at the time when the operation of the patient was contemplated, it cannot be said that there is a negligence on the part of the Hospital. The findings recorded by the Commission holding the Hospital and the Doctor guilty of medical negligence are not sustainable in law. The order passed by the Commission is set aside and the complaint is dismissed. [Paras 27, 35-37][1136-B; 1144-A-H; 1145-A]
Syad Akbar v. State of Karnataka (1980) 1 SCC 30 : [1980] 1 SCR 95; Iffco Tokio General Insurance Company Limited v. Pearl Beverages Limited (2021) 7 SCC 704 : 2021 (4 ) JT 345; Martin F. D’Souza v. Mohd. Ishfaq (2009) 3 SCC 1 : [2009] 3 SCR 273; Jacob Mathew v. State of Punjab and Anr (2005) 6 SCC
1 : [2005] 2 Suppl. SCR 307; Arun Kumar Manglik v. Chirayu Health and Medicare Private Limited and Anr. (2019) 7 SCC 401 : [2019] 3 SCR 281; C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam (2009) 7 SCC 130 : [2009] 7 SCR 272; Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others (2010) 3 SCC 480 : [2010] 2 SCR 685; Dr. Harish Kumar Khurana v. Joginder Singh & Others (2021) SCC Online SC 673 – relied on.
Whitehouse v. Jordan and Anr [1981] 1 Weekly Law Reports 246 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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