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TMI Blog2010 (3) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... original complainant, is an officer in the Malaria department and he got his wife admitted in the Respondent No. 1 hospital on 20.07.02 as his wife was suffering from fever which was intermittent in nature and was complaining of chill. 4. In the complaint, the appellant further alleged that his wife was subjected to certain tests by the respondent No.1 but the test did not show that she was suffering from malaria. It was also alleged that his wife was not responding to the medicine given by the opposite party No.1 and on 22nd July, 2002 while she was kept admitted by respondent No.1. Saline was given to her and the complainant had seen some particles in the saline bottle. This was brought to the notice of the authorities of the respondent No.1 but to no effect. Then on 23rd July 2002 complainant s wife was complaining of respiratory trouble and the complainant also brought it to the notice of the authorities of the respondent No.1 who gave artificial oxygen to the patient. According to the complainant at that stage artificial oxygen was not necessary but without ascertaining the actual necessity of the patient, the same was given. According to the complainant his wife was not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordered that the complainant is entitled for refund of ₹ 10,000/- and compensation of ₹ 2 lakhs and also entitled to costs of ₹ 2,000/-. 8. The District Forum relied on the evidence of Dr. Venkateswar Rao who was examined on behalf of the respondent No.1. Dr. Rao categorically deposed I have not treated the case for malaria fever . The District Forum found that the same is a clear admission on the part of the respondent No.1 that the patient was not treated for malaria. But the death certificate given by the Yashoda Hospital disclosed that the patient died due to cardio respiratory arrest and malaria . In view of the aforesaid finding the District Forum came to the conclusion that the patient was subjected to wrong treatment and awarded compensation of ₹ 2 lakhs and other directions as mentioned above in favour of the appellant. The District Forum also noted when the patient was admitted in a very critical condition in Yoshoda Hospital the copy of the Haematology report dated 24.7.2002 disclosed blood smear for malaria parasite whereas Widal test showed negative. The District Forum also noted that the case sheet also does not show that any treatment wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the complainant failed to establish any negligence on the part of the hospital authorities and the findings of the District Forum were overturned by the State Commission. In the order of the State Commission there is a casual reference to the effect that there is also no expert opinion to state that the line of treatment adopted by the appellant/opposite party No.1 Hospital is wrong or is negligent . 12. In this case the State Forum has not held that complicated issues relating to medical treatment have been raised. It is not a case of complicated surgery or a case of transplant of limbs and organs in human body. It is a case of wrong treatment in as much as the patient was not treated for malaria when the complaint is of intermittent fever and chill. Instead the respondent No.1 treated the patient for Typhoid and as a result of which the condition of the patient deteriorated. When the condition became very very critical the patient was removed to Yashoda Hospital but patient could not be revived. 13. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere used except that a male nurse stood on each side of the treatment couch throughout the treatment. About this treatment there were two bodies of opinion, one of which favoured the use of relaxant drugs or manual control as a general practice, and the other opinion was for the use of drug that was attended by mortality risks and confined the use of relaxant drugs only to cases where there are particular reasons for their use and Bolam case was not under that category. On these facts the expert opinion of Dr. J.de Bastarrechea, consultant psychiatrist attached to the Hospital was taken. Ultimately the Court held the Doctors were not negligent. In this context the following principles have been laid down: A Doctor is not 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 (See page 122 placitum B of the report) 18. It is also held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is not negligent merely because his conclusion differs from that of other professional men. It was also made clear that the true t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisprudential thinking in England, time has come for this Court also to reconsider the parameters set down in Bolam test as a guide to decide cases on medical negligence and specially in view of Article 21 of our Constitution which encompasses within its guarantee, a right to medical treatment and medical care. In England, Bolam test is now considered merely a rule of practice or of evidence. It is not a rule of law (See paragraph 1.60 in Clinical Negligence by Michael Powers QC, Nigel Harris and Anthony Barton, 4 th Edition, Tottel Publishing). However as in the larger Bench of this Court in Jacob Mathew vs. State of Punjab and another (2005) 6 SCC 1, Chief Justice Lahoti has accepted Bolam test as correctly laying down the standards for judging cases of medical negligence, we follow the same and refuse to depart from it. 22. The question of medical negligence came up before this Court in a decision in Mathew (supra), in the context of Section 304-A of Indian Penal Code. 23. Chief Justice Lahoti, speaking for the unanimous three-Judge Bench in Mathew (supra), made a clear distinction between degree of negligence in criminal law and civil law where normally liability f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 . 27. After laying down the law, as above, the learned Chief Justice opined that in cases of criminal negligence where a private complaint of negligence against a doctor is filed and before the investigating officer proceeds against the doctor accused of rash and negligent act, the investigating officer must obtain an independent and competent medical opinion preferably from a doctor in Government service, qualified in that branch of medical practice. Such a doctor is expected to give an impartial and unbiased opinion applying the primary test to the facts collected in the course of investigation. Hon ble Chief Justice suggested that some statutory rules and statutory instructions incorporating certain guidelines should be issued by the Government of India or the State Government in consultation with the Medical Council of India in this regard. Till that is done, the aforesaid course should be followed. But those directions in paragraph 52 of Mathew (supra) were certainly not given in respect of complaints filed before the Consumer Fora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the two is obvious in view of the jurisprudential and conceptual difference between cases of negligence in civil and criminal matter. This has been elaborately discussed in Mathew (supra). This distinction has been accepted in the judgment of this Court in Malay Kumar Ganguly (supra) (See paras 133 and 180 at pages 274 and 284 of the report). 30. Therefore, the general directions in paragraph 106 in D souza (supra), quoted above are, with great respect, inconsistent with the directions given in paragraph 52 in Mathew (supra) which is a larger Bench decision. 31. Those directions in D souza (supra) are also inconsistent with the principles laid down in another three-Judge Bench of this Court rendered in Indian Medical Association (supra) wherein a three-Judge Bench of this Court, on an exhaustive analysis of the various provisions of the Act, held that the definition of service under Section 2(1)(o) of the Act has to be understood on broad parameters and it cannot exclude service rendered by a medical practitioner. 32. About the requirement of expert evidence, this Court made it clear in Indian Medical Association (supra) that before the Fora under the Act both simple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided by the Fora under the said Act on the basis of the procedure which has been prescribed under the said Act. (c) In complicated cases where expert evidence is required the parties have a right to go to the Civil Court. (d) That right of the parties to go to Civil Court is preserved under Section 3 of the Act. 34. The decision in Indian Medical Association (supra) has been further explained and reiterated in another three judge Bench decision in Dr. J. J. Merchant and others vs. Shrinath Chaturvedi reported in (2002) 6 SCC 635. 35. The three Judge Bench in Dr. J. J. Merchant (supra) accepted the position that it has to be left to the discretion of Commission to examine experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. [para 19, page 645 of the report] [Emphasis supplied] 36. It is, therefore, clear that the larger Bench in Dr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atterns responsive to the needs and desires of consumers. To encourage high levels of ethical conduct for those engaged in the production and distribution of goods and services to consumers. To assist countries in curbing abusive business practices by all enterprises at the national and international levels which adversely affect consumers. To facilitate the development of independent consumer groups. To further international cooperation in the field of consumer protection. To encourage the development of market conditions which provide consumers with greater choice at lower prices. 40. A three-Judge Bench of this Court in State of Karnataka v. Vishwabharathi House Building Coop. Society Others, (2003) 2 SCC 412, referred to those guidelines in paragraph 6. This Court further noted that the framework of the Act was provided by a resolution dated 9.4.1985 of the General Assembly of the United Nations Organization known as Consumer Protection Resolution No. 39/248, to which India was a signatory. 41. After treating the genesis and history of the Act, this Court held that that it seeks to provide for greater protection of the interest of the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care . 46. The learned author at page 314, para 3-146 of the book gave illustrations where the principles of res ipsa loquitur have been made applicable in the case of medical negligence. All the illustrations which were given by the learned author were based on decided cases. The illustrations are set out below:- Where a patient sustained a burn from a high frequency electrical current used for electric coagulation of the blood [See Clarke v. Warboys, The Times, March 18, 1952, CA]; Where gangrene developed in the claimant s arm following an intramuscular injection [See Cavan v. Wilcox (1973) 44 D.L.R. (3d) 42]; When a patient underwent a radical mastoidectomy and suffered partial facial paralysis [See Eady v. Tenderenda (1974) 51 D.L.R. (3d) 79, SCC]; Where the defendant failed to diagnose a known complication of surgery on the patient s hand for Paget ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction given in paragraph 106 in D souza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that case. 50. With great respect to the Bench which decided D souza (supra) this Court is of the opinion that the directions in D souza (supra) are contrary to (a) the law laid down in paragraph 37 of Indian Medical Association (supra), (b) and paragraph 19 in Dr. J.J. Merchant (supra), (c) those directions in paragraph 106 of D souza (supra) equate medical negligence in criminal trial and negligence fastening civil liability whereas the earlier larger Bench in Mathew (supra) elaborately differentiated between the two concepts, (d) Those directions in D souza (supra) are contrary to the said Act which is the governing statute, (d) those directions are also contrary to the avowed purpose of the Act, which is to provide a speedy and efficacious remedy to the consumer. If those general directions are followed then in many cases the remedy under the said Act will become illusory, (f) those directions run contrary to principle of Res ipsa loquitur which has matured into a rule of law in some cases of medical negligence where negl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way ..... X X X X Extracts X X X X X X X X Extracts X X X X
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