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TMI Blog2022 (11) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... ction Act, 1986. 3. In order to appreciate the issue involved in the instant appeal, it may be necessary to cull out the facts relevant for the purpose. Complainant No. 1, the widow and complainant Nos. 2 and 3, the minor children of deceased Naveen Kant, jointly filed a complaint, inter alia, alleging that in the first instance in April, 1990, Naveen Kant developed hypertension and was under the treatment of Dr. P.D. Gulati, Nephrologist, but when no positive changes had come forward, Dr. Gulati advised him for renal transplantation and since then, Naveen Kant was under regular dialysis at the hospital in Delhi under the supervision of Dr. Gulati. When some of his well-wishers informed him about a reputed Nephrologist, Dr. M.A. Muthusethupathi, OP No. 1 who is performing kidney transplant surgery at Madras and after going through the entire medical record and seeking opinion of OP No. 1 and after completion of all legal formalities as being contemplated under the provisions of the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter "the Act 1994") and taking into consideration the fact that dialysis twice a week may not have been possible for longevity and for bett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jections and do the dressing. 6. However, on 21st December, 1995, on the advice of OP No. 1, Naveen Kant was again admitted to OP No. 4 hospital and he was administered anti convulsion injection. Although attended by OP Nos. 1, 3 and 5, headache, fever and pus in his left forearm still persisted. OP No. 5 made a long incision in the left forearm to drain off the pus, but because OP No. 1 was unavailable on 30th December, 1995, OP No. 2 was called upon to take care of the patient. 7. Later, more complications crept in and because of complications, there developed abscess in pancreas and liver and the X-ray showed some abnormal developments in the lung and that later converted into Septicemia. Ultimately, the required potency of antibiotics administered or the quality of these antibiotics also failed to respond. He was later moved to ICU on instructions of OP No. 3 and in the morning of 31st January, 1996, OP No. 1 also visited Naveen Kant, who was at that time in unconscious stage, even after that, his condition continuously deteriorated and the fact is that no one attended to the complaint made by Naveen Kant and finally he could not be saved and left for heavenly abode on 3rd Fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hereunder: "Afebre - No Fever. Lungs clear CVS S1 S2 - Normal Sound (Cardio Vascular System) Abdomen - Soft-Mild distention. NAD - Nothing abnormal detected. No Oedema - No swelling throughout the body." 10. On 17th November 1995, the Urinary catherer tip grew klebsiella on culture for which Ciprofloracin was started. On 24th November, 1995, the patient was discharged after remaining under post operative care for 12 days. Although complaints are made by the patient of its own kind, but he was always attended and taken care of and when the patient was called upon to continue to attend as an outdoor patient, all medical assistance possible at the command of the Respondents was extended to him. It is unfortunate that the patient could not be saved despite the best medical assistance being extended to him by the experts of the field. 11. On behalf of the complainant, evidence was led by Mrs. Vimla Akhori, relative of Appellant No. 1, Dr. (Mrs.) Minii Rani Datta, sister of Appellant No. 1, Col. Dr. Ashok Chopra, MBBS General Surgery and Dr. (Mrs.) Sophia Ahmed, as medical experts who are undisputedly not the Nephrologists. So far as the first two witnesses (relatives of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ege and later did internship in Internal Medicines at Queens Hospital, Central New York and remained as a resident in Neurology at University Hospitals and Clinics at USA for almost three years and has a Fellowship in Clinical Neurophysiology and Epilepsy. With no expert knowledge of the subject based on the medical reports made a statement of a medical negligence being performed by the Respondents and expressed her opinion that in the post transplant phase, patient manifested clear symptoms of infection while in the ICU and the patient was not recovered adequately for nosocomial infection and his manifest problems and indicators were not addressed by the attending doctors with seriousness and urgency and at critical junctures, the retained nephrologist displayed complete lack of professional concern for the patient and this according to her was a post operative medical negligence being committed by the Respondents and only because of their lackadaisical attitude, they lost their patient. 14. On the other hand, the Respondents who indeed were themselves qualified Nephrologists and experts in the field of kidney transplant operations and this fact is not disputed by the Appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the Respondents, was also a Professor of Surgery, Head of the Department of Surgery, Coimbatore Medical College, Tamil Nadu also stated in his affidavit that he has been a kidney transplant surgeon since 1986 and has performed over 1140 renal transplantations. In clinical practice, positive findings, if any, are always noted in the case records and after going through the record history of the patient, it was stated by him that he did not find any evidence of infection at the time of discharge of the patient from OP No. 6. 17. The Commission, after taking into consideration the pleadings so also the evidence on record arrived to a conclusion that the patient Naveen Kant was under the hands of the expert team of doctors and possible medical care at the command of the doctors was fully administered to him and after being discharged from the hospital on 24th November, 1995, still thereafter he was continued to be under treatment and merely because the expert team of doctors could not save him after his prolonged illness and he died on 3rd February, 1996 that in itself could not be considered to be a case of post operative medical negligence and in consequence thereto dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties, dismissed the complaint in a cavalier manner under the impugned judgment dated 21st July, 2009, which needs to be revisited by this Court at least to examine as to whether it was a case of post operative medical negligence, the reason for which Appellant No. 1 has lost her husband. 20. Per contra, counsel for the Respondents, while supporting the findings recorded by the Commission under the impugned judgment, submits that it is not the case of the Appellants that there was any slackness on the part of the team of the doctors while the patient was being operated/underwent kidney transplant on 12th November, 1995 which was admittedly successfully performed by the qualified team of doctors headed by OP No. 1 and OP No. 5 and thereafter the patient was shifted to ICU for post operative treatment and even thereafter he was completely under medical supervision and got discharged on 24th November, 1995 with further instructions that he should remain as an outdoor patient until the doctors advise him to leave the city and the reason was that as an outdoor patient, dressing of wounds at the place of incision is always to be taken proper care. So far as the complaint of pain in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of judgment or an accident, is not proof of negligence on the part of the medical professional. This Court held as under: 48. We sum up our conclusions as under: (1) Negligence is the breach of a duty caused by 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dical 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 of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient." 25. In para 89 of the judgment in Kusum Sharma (supra), the tests of medical negligence while deciding whether the medical professional is guilty of medical negligence, varied tested principles have to be kept in view, this Court held as under: "89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view: I. Negligence is the breach of a duty exercised by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals." 26. In a recent judgment in Dr. Harish Kumar Khurana v. Joginder Singh and Ors. - (2021) 10 SCC 291, this Court held that the hospital and doctors are required to exercise sufficient care in treating the patients in all circumstances. However, in an unfortunate case death may occur. It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at a conclusion that the death is due to medical negligence. Even death of a patient cannot, on the face of it, be considered to be medical negligence. 27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atient could not be finally saved, that in itself could not be considered to be a case of post operative medical negligence, as is being tried to be projected by the Appellants on the basis of the material placed on record. 31. The doctors are expected to take reasonable care, but no professional can assure that the patient will come back home after overcoming the crisis. At the same time, no evidence has come on record at the behest of the Appellants which, in any manner, could demonstrate that it was a case of post-operative medical negligence or follow up care on the part of treating doctors and both the doctors who have recorded their statements on behalf of the Appellants, Dr. Ashok Chopra and Dr. Sophia Ahmed, are not expert doctors in the field of kidney transplantation. Merely because they are doctors by profession, what is being expressed by both of them in the affidavits filed before the Commission would not be considered to be an opinion of experts. 32. On the contrary, the two experts who have deposed on behalf of the Respondents, Dr. S. Sundar and Dr. Arun Kumar are admittedly experts of the field. At the same time, the Respondents - OP Nos. 1, 2 and 5 are indeed exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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