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TMI Blog2009 (5) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... ost of Rs. 5,000/-. 2. The brief facts of the case are thus: On March 30, 1996, Smt. Harjit Kaur (wife of complainant No. 1 and mother of complainant No. 2) received accidental burns while making tea on the stove. She sustained 50% TBSA III burns involving both upper limbs, part of trunk and most of both lower limbs. Smt. Harjit Kaur was taken to Daya Nand Medical College and Hospital, Ludhiana immediately where she responded to the treatment well. She remained admitted in Daya Nand Medical College and Hospital upto April 19, 1996. Since the treatment at Daya Nand Medical College and Hospital was expensive, the complainant No. 1 decided to shift his wife to PGI for further treatment. On April 19, 1996, Smt. Harjit Kaur was admitted in PGI, Chandigarh. Dr. Varun Kulshrestha, Senior Resident Doctor, Department of Plastic Surgery attended to her. The condition of Smt. Harjit Kaur started improving at PGI. On May 15, 1995, she was transfused A+ blood which was her blood group. On May 20, 1996, the patient was transfused B+ blood group in the afternoon although her blood group was A+. On the night of May 20, 1996, the urine of the patient was reddish like blood and the attendant n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patient which resulted in death of Smt. Harjit Kaur. The State Commission in its order dated February 1, 2000 held that PGI was liable to pay sum of rupees two lac to the complainants out of which 3/4th was to be put in the fixed deposit in favour of the minor son Amandeep Singh (complainant No. 2) and 1/4th amount to be paid to the complainant No. 1. The State Commission also awarded the cost of Rs. 5000/-. 6. PGI challenged the order of the State Commission in appeal before the National Commission but without any success. 7. The learned Counsel for PGI raised the same contentions before us which were raised before the National Commission that the cause of death of Smt. Harjit Kaur was Septicemia and not mismatched blood transfusion. He would submit that Smt. Harjit Kaur recovered from mismatched blood transfusion given to her on 20th and 21st May, 1996; her hemoglobin level was brought up and her vital organs started functioning normal. The learned Counsel would submit that Smt. Harjit Kaur died due to burn injuries and the other connected reasons arising out of said injury and not due to mismatched blood transfusion and, therefore, no negligence can be attributed to the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort. 12. Insofar as civil law is concerned, the term negligence is used for the purpose of fastening the defendant with liability of the amount of damages. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. 13. In Syed Akbar v. State of Karnataka - 1979CriLJ1374 , this Court dealt with in details the distinction between negligence in civil law and in criminal law. It has been held that there is a marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. 14. In Bhalchandra Waman Pathe v. State of Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... physical; purely intellectual or they may fall somewhere between the two. Whichever form the mistake takes, there are two separate questions to consider : (i) whether the defendant made a mistake ; (ii) if so, whether the mistake was one which a reasonably careful and skilful medical practitioner would not have made. The claimant must, of course, succeed on both questions in order to establish negligence. 20. It needs no emphasis that in the medical negligence actions, the burden is on the claimant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioner's breach of duty. In the absence of evidence to the contrary adduced by the opposite party, an inference of causation may be drawn even though positive or scientific proof is lacking. 21. `The Physiological Basis of Medical Practice (Eight Edition)' by Charles H. Best and Norman B. Taylor in Chapter 26 deals with transfusion; blood groups. In respect of incompatible transfusions, while dealing with its effects, it is stated that if blood of the wrong (incompatible) ABO blood group is transfused, a hemolytic transfusion reaction usually results red cells are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is brought to the PGI or any other Institute of Health Care, the back-ground/History, if any, for example that the patient was maltreated by the husband, does not absolve the Hospital from its professional obligation.... 24. Affirming the aforesaid view of the State Commission, the National Commission held thus: ...It is seen that the patient's kidney was damaged and the blood level reached to 100 gms. percentage, hemoglobin came down to 5 mg. after the mismatched blood transfusion was given by the Doctor in the said Hospital. It was only after the Complainant gave the written complaint to the hospital regarding the wrong transfusion of blood given to the patient, an inquiry was made and it was found correct. The damage control treatment started only after the written complaint was given by the complainant. Though it is argued by the Counsel for the Appellant that the percentage levels were brought down to normal, it is very clear to us that the internal imbalances of liver and kidney functioning and deteriorating hemoglobin levels started only after the mismatched blood transfusion was given. Though septicemia has been written as the ultimate cause of death, the patie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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