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TMI Blog2010 (2) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... um Sharma and the father of appellant Nos. 2 and 3). 3. Brief facts which are necessary to dispose of this appeal are as under: 4. Late Shri R.K. Sharma was a Senior Operations Manager in the Indian Oil Corporation (Marketing Division). In June 1989, he developed blood pressure. He was very obese. He complained of swelling and breathlessness while climbing stairs. He visited Mool Chand Hospital on 10.12.1989 but no diagnosis could be made. The Indian Oil Corporation referred him to Batra Hospital on 14.3.1990 where he was examined by Dr. R.K. Mani, respondent No. 2 and Dr. S. Arora who advised him to get admitted for Anarsarca (Swelling). 5. On 18.3.1990, Shri Sharma was admitted in Batra Hospital. On 20.3.1990, an ultrasound of abdomen was done and the next day, i.e., on 21.3.1990, a C.T. scan of abdomen was done and it was found that there was a smooth surface mass in the left adrenal measuring 4.5 x 5 cm and that the right adrenal was normal. Surgery became imperative for removing the left adrenal. The deceased, Shri Sharma and appellant No. 1 were informed by Dr. Mani, respondent No. 2 that it was well encapsulated benign tumor of the left adrenal of less than 5 cm in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceased again went to Mool Chand Hospital on 17.8.1990 with pancreatic and feacal fistula which was dressed. The deceased was discharged from Mool Chand Hospital on 31.8.1990. The deceased went to Jodhpur on 29.9.1990 and on 30.9.1990 he had to be admitted in the Mahatma Gandhi Hospital at Jodhpur where he was diagnosed with having post- operative complications of Adrenoloctomy and Glutteal abscess. The deceased was discharged from there on 3.10.1990 with an advice to get further treatment at AIIMS and when the deceased again went to AIIMS on 8.10.1990, Dr. Kuchupillai, a senior doctor at AIIMS wrote on a slip `to be discussed in the Endo-Surgical Conference on 8.10.1990'. 11. The appellants after the death of Shri Sharma filed a complaint under Section 21 of the Consumer Protection Act, 1986 before the National Commission claiming compensation attributing deficiency in services and medical negligence in the treatment of the deceased Shri Sharma. 12. The appellants attributed death of Shri Sharma because of negligence of the doctors and the hospital. The appellants alleged that the informed consent was completely lacking in this case. The appellants also alleged that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the light of the law which has been crystallized by a number of cases decided by this Court. Some of them have been extensively dealt with by the Commission. 18. The allegations in the complaint were strongly rebutted by Dr. Kapil Kumar, respondent No. 3. Dr. Kapil stated in his affidavit that the anterior approach was preferred over the posterior approach in the suspected case of cancer, which was the case of Shri Sharma. The former approach enables the surgeon to look at liver, the aorta area, the general spread and the opposite adrenal gland. The risk involved was explained to the patient and the appellants and they had agreed to the surgery after due consultation with the family doctor. 19. With the help of medical texts in support of adopting `anterior' approach, respondent No. 3 mentioned as under: (i) The `anterior' approach for adrenalectomy is mandatory whenever optimum exposure is required or when exploration of the entire abdomen is necessary. Therefore, this approach is used in patients with adrenal tumours 4 cm in diameter, or in patients with possibly malignant tumours of any size, such as pheochromocytoma or adrenocortical carcinoma.... Resect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. According to the appellants, Dr. Bose, respondent No. 4, who performed the second surgery on 23.5.1990 did not follow the advice of Dr. Nandi, Professor and the Head of Department of Gastro-Intestinal Surgery at AIIMS. Dr. Nandi had advised placing of feeding tube at a designated place, but this was not done. 25. Dr. Bose, Respondent No. 4 stated in his affidavit that there are three well known alternative methods of food supply of nutrition minimizing any leakage of enzymes from the pancreas. Any of the alternative methods could be adopted only after opening the stomach and this is precisely what respondent No. 4 did, i.e. cleared the area of abscess, dead and other infective tissues and inserted a second tube for drainage of fluid in the affected area and in the pancreatic duct. Respondent No. 4 also inserted a second tube connecting the exterior of the abdomen with the affected part of the pancreas and the abdomen for drainage and clearance in support of the first tube inserted for drainage. According to respondent No. 4, this was the best course which could be done keeping in view the inside status of the stomach of the deceased and that was done. 26. The National Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he deceased himself was negligent when he was discharged on 23.6.1990. The doctors specifically advised him Regular Medical Follow Up which the deceased failed to attend. In fact, subsequently, it was respondent No. 4 who called upon the deceased and persuaded him to visit the Modi Hospital for a change of dressing. The Fitness Certificate issued to the deceased also bore the endorsement he would need prolonged and regular follow up . However, the deceased did not make any effort and was totally negligent. 31. According to the affidavit, the deceased was admitted on 18.3.1990 in Batra Hospital. Dr. R.K. Mani recommended certain investigations such as abdominal Ultrasound , Echo- cardiogram Blood Tests etc. On 20.3.1990, Dr. Mani ordered a C.T. Scan of the abdomen for a suspected lump in the abdomen. The C.T. abdomen revealed a large left adrenal mass. Accordingly, the following note was recorded by Dr. R.K. Mani in the case sheet on 21.3.1990: CT abdomen reveals a large left adrenal mass. Evidently there is a secreting adrenal tumour. Patient needs full work up re hormonal status and CT Head Scan. The same day Dr. R.K. Mani referred the case to Dr. C.M. Batra, Endocrinolo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gery Shri R.K. Sharma was subjected to ultrasound imaging and sonogram. On 26.4.1990 respondent No. 2 ordered a CT Scan as he suspected the existence of a pancreatic abscess. The CT Scan report was suggestive of paripancreatic inflammation and pancreatic abscess. Thus the CT Scan merely confirmed the suspicion of appellant No. 1, the wife of Shri R.K. Sharma who was well aware of the injury to the pancreas and the possibility of there being a pancreatic abscess and she had long discussion with respondent Nos. 2 and 3 regarding the prognosis. It is denied that the patient and the appellants were assured that fluid discharge would stop within 2 or 3 days time or that it was normal complication after any surgery. 34. It is submitted that the tumour mass was sent for biopsy the same day i.e. 2.4.1990. The histopathology report was received the next day and it recorded a positive finding of the tumour being malignant. Since cases of adrenal cancer have a very poor prognosis, six slides were sent to Sir Ganga Ram Hospital for confirmation. The histopathology report from Sir Ganga Ram Hospital also indicated cancer of the adrenal gland. 35. It is admitted that due to the insistence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s denied that any procedure adopted by Dr. Bose and Dr. Kapil Kumar in surgery endangered the life of the patient. Shri R.K. Sharma was discharged as his surgical wounds had healed and his overall condition was satisfactory. 39. It is submitted that after his discharge from Batra Hospital on 23.6.1990, Shri R.K. Sharma did not maintain any contact with the answering respondents till 9.10.1990 barring one visit to respondent No. 2 on 31.8.1990 for the purpose of obtaining fitness certificate. The answering respondent cannot be held responsible for any mishap, which might have taken place when the deceased Shri R.K. Sharma was being treated elsewhere. 40. It is further submitted that no request was received by respondent No. 1 from AIIMS for supply of the case sheets or the tumour mass. Had such a request been received the case sheets would have been sent to AIIMS forthwith. The tumour mass would also have been sent subject to availability, as generally the mass is not preserved beyond a period of 4 weeks. As a standard practice, case sheets are never given to patients as they contain sensitive information which can affect their psyche. 41. It is submitted that no malafides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain any reference to cancer. The diagnosis of cancer was not an afterthought. The diagnosis of cancer was a considered one after two histopathological reports were received. It is however denied that the patient was told that he was suffering from cancer. 46. It is also denied that Dr. Kapil Kumar lacks experience. On the contrary, Dr. Kapil Kumar has impressive credentials and he had undertaken training in the well known Tata Cancer Hospital at Mumbai and he had adequate experience in handling such operations. 47. The learned Counsel appearing for the appellants placed reliance on Spring Meadows Hospital and Anr. v. Harjot Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 and Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. AIR 1969 SC 128. According to respondent No. 1, these cases have no application to the present case. The facts in these cases are entirely different and the law of negligence has to be applied according to the facts of the case. 48. According to Halsbury's Laws of England Ed.4 Vol.26 pages 17-18, the definition of Negligence is as under: 22. Negligence : Duties owed to patient. A person who holds himself out as ready to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if her exercises the ordinary skill of an ordinary competent man exercising that particular Art. 50. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks. 51. In Roe and Woolley v. Minister of Health (1954) 2 QB 66 Lord Justice Denning said : `It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egligence or Negligence per se. 57. In the instant case, Dr. Kapil Kumar, respondent No. 3 who performed the operation had reasonable degree of skill and knowledge. According to the findings of the National Commission, he cannot be held guilty of negligence by any stretch of imagination. 58. Negligence per-se is defined in Black's Law Dictionary as under: Negligence per-se: - Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid Municipal Ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes. 59. In Bolam v. Friern Hospital Management Committee (supra), Lord McNair said : ...I myself would prefer to put it this way : 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it. 65. We are here concerned with the criminal negligence. We have to find out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. 66. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions (1937) A.C. 576 stated, Simple lack of care -- such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Thus, a clear distinction exists between simple lack of care incurring civil liability and very high degree of negligence which is required in criminal cases. Lord Porter said in his speech in the same case -- A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. (Charlesw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.(Charles worth Percy, ibid, Para 8.04) 72. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol. 30, Para 35): The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edge available at the time (of the incident), and not at the date of trial. Secondly, 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 point of time on which it is suggested as should have been used. 76. A mere deviation from normal professional practice is not necessarily evidence of negligence. 77. In Jacob Mathew's case (supra) this Court observed that higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. The court further observed as under: 25. ...At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State.; (ii) That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation.... There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime. (iii) It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion....The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck. (emphasis supplied) 83. In the said case, their Lordships refused to accept the view that criminal negligence was proved merely because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the ambit of 'service' as defined in Section 2(1)(o) of the Consumer Protection Act, 1986. Deficiency in service has to be judged by applying the test of reasonable skill and care which is applicable in action for damages for negligence. 87. In the said case, the court also observed as under: 22. In the matter of professional liability professions differ from occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services. (see: Jackson and Powell on Professional Negligence, 3rd Edn. paras 1-04,1-05 and 1-56). 88. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. (3) 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 of 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. 91. 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 circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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