(Dharam Pal, President) The complainant has filed this complaint against the Ops with the averments that the father of the complainant-Sh.Acchra Dass (hereinafter referred as deceased) had suffered from large bowel obstruction problem in the year 2012 and at that time, the deceased was in Sydney with his daughter i.e. complainant No.2. The deceased approached the Cannterbury Hospital and there he was treated and operated upon for subtotal-colectomy & post operation, thereafter, he was living a healthy life. Subsequently, the deceased approached the Op No.1 for routine check-ups and explained the Ops complete medical record/medical history. The Ops suggested the deceased to undergo total Colectomy for a better and convenient living. On advice of Ops, the deceased agreed for the surgery and he was admitted in hospital on 01.10.2013 and the surgery was conducted on 03.10.2013, thereafter, the deceased was discharged on 01.12.2013. In the first week of February, 2014, the deceased alongwith complainants approached the Ops No.2 and 3 for routine checkup who after physical examination told the complainants that he was fine and need not to worry. In the second week of March, 2014, the Ops No.2 and 3, after examination of deceased, again opined that the deceased was alright but the complainant No.1 asked for the reason of little protusion in the stomach of his father (deceased). On asking, the Ops No.2 told that the deceased was suffering from abdominal Hernia and advised him that the deceased could be cured by operating through a minor laproscopic operation. The complainant No.1 enquired that the deceased had undergone a total colectomy recently and how hernia could develop in such a short period. Upon this, the Op No.2 told that Hernia could also be caused due to splitting of the stitches at the site of a previous surgical incision. On 02.04.2014, the deceased alongwith complainants again visited the Ops for routine checkup and the doctors suggested that the deceased be got admitted on 13.04.2014 and he would be operated on 14.04.2014. On the advice of doctor, the deceased was admitted in the hospital on 13.04.2014. On 14.04.2014, the operation was done by Ops No.2 and 3 and they informed after 3 hours that the operation was successful and the deceased was shifted to ICU. Thereafter, in the evening, the Ops No.2 and 3 after examining the deceased advised that the patient would be discharged after three days. On 17.04.2017, after examination, the Ops No.2 and 3 advised for thoroughly checkup as they have apprehension that mesh has been displaced and also it seem the some stitches have loosened up. The deceased was taken to operation theatre an after about 3 hours, the decased was shited to ICU. After enquiring by the complainant No.1, the Ops No.2 and 3 told that some water was found in the stomach which was removed by conducting a minor operation and that he need not worry. The complainant enquired about the water found in stomach and the Ops No.2 and 3 stated that sometimes it happened due to loss of blood. On 18.04.2014, after examination the deceased, the Ops No.2 and 3 told that everything was alright and that he need not worry. But the deceased told the complainant No.1 that he was not feeling well after operation and felt that something was moving in the stomach. The complainant No.1 discussed the matter with Ops No.2 and 3 and they advised for CT scan of the stomach but thereafter, the OP NO.3 told that there was no necessity of CT scan as it happened due to operation and the deceased would be alright after 2-3 days. On 19.04.2014, the complainant No.1 again requested the Ops No.2 and 3 for thoroughly examination of deceased. Upon this, the Ops No.2 and 3 touched the stomach of the deceased and observed that everything was alright and the deceased was shifted to ward in the evening. On 20.04.2014, the deceased told the Ops no.2 and 3 the problems being faced by him but he was assured that need not worry as everything was OK. In the afternoon, the deceased observed that his clothes were wet and he called the nurse on duty for checkup and the nurse called the doctor on duty. After examination, the deceased got out of the room and called the Op NO.3 who came around 3.45 pm and examined the deceased. After examination, the OP No.3 told that there was something wrong and suggested that the deceased needed to be taken to the operation theatre for checkup. The complainant No.1 asked the reason from Ops No.2 and 3 but to no avail. After
2 hours, the Op No.2 told the complainant No.1 that the nerve in the stomach had ruptured and they have restored it. On asked about the condition of the deceased, the OP NO.3 informed that it was open-cut surgery and he went back to the operation theatre to stitch the stomach and took around 2 hours again. Thereafter, he was shifted to ICU. The complainant No.1 enquired from Ops No.2 and 3 about the condition of his father, upon this, the Ops no.2 and 3 told that the deceased was on ventilator which was a great shock to the complainant No.1. The complainant again asked from Dr.Ranjan what had happened to the deceased and he replied that the deceased was unconscious and nothing could be said as of now. The complainant No.1 again and again asked from the Ops No.2 and 3 what had happened to the deceased but they told him to wait for 24-36 hours. On 21.04.2014, the complainant No.1 called up the Ops to know the condition of his father and he was told that the condition of the deceased was critical and told that there was no other option but to wait for 24 hours. At around 9.00 PM, on asking by the complainant what had happened with the patient, the Ops No.2 and 3 replied that some nerve had burst in the stomach due to which poison was spreading in the body and in emergency, operation was conducted. They further told that the deceased could not tolerate the operation and had to be put on ventilator and they were trying their best. The Ops again suggested to undergo second dialysis to which the complainant No.1 agreed. The Ops started the second dialysis at around 5.30 pm and around 8.20 pm, it was told him that his father was no more. The complainant asked that what happened to his father, it was told that he suffered a heart failure. The Ops No.2 and 3 gave the estimate of Rs.2,00,000/- to the complainant No.1 for treatment of the Hernia but the Ops charged Rs.4,86,553/-. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint. The Op No.1 appeared before this Forum and filed written statement by taking some preliminary objection and submitted that the present complaint is not maintainable. It is submitted that there is no expert opinion of any competent doctor/Medical Board. It is submitted that the OP No.1 is a well equipped with hospital with all modern equipments and advanced medical facility and has its own well equipped operation theatre, Critical Care Area and CCU. It is submitted that the Op No.1 has experienced doctors and para medical staff of its own services. It is submitted that Op No.1 has only to provide facilities for a management of the patient. It is submitted that the Ops No.2 (Dr.S.P.Kaushik) and 3 (Dr.Mudit Kumar) are qualified doctors. Dr.S.P.Kaushik has done MBBS from Lucknow University, FRCS Royal College of Surgeons of Edinburgh, FICS International College of Surgeons, PhD London University, FACG Americal College of Gastroenterology, FAMS National Academy of Medical Sciences India and got registration No.9667. Dr.Mudit Kumar has done MBBS from Gandhi Medical College, Bhopal, Master of Surgery from Government Medical College, Patiala and DNB (Diploma of National Board) in Surgical Gastroenterology and got registration No.39525 from Punjab Medical Council. It is submitted that the Ops No.2 and 3 have worked with the Op No.1 as part-time consultants and have treated the patients. It is submitted that the deceased came to the OPD of Ops No.2 and 3 for follow up of the operative procedure done in Australia i.e. surgery for cancer of larger bowel polyposis coli. It is submitted that the deceased was operated three times for the various decease conditions as required and the complainants were completely satisfied with the earlier two admissions and surgeries. The deceased had a history of colon adenocarcinoma. It is submitted that inadequate and incomplete surgery was done in Australia which had complication of wound dehiscence as per the records of Canterbury Hospital, Australia. The deceased/patient was advised total proctocolectomy for proper and complete treatment of cancer. It is submitted that the deceased was admitted on 01.10.2013 and complete proctocolectomy was done on 03.10.2013 and he was discharged on 11.10.2013. The deceased was again admitted in Hospital on 22.11.2013 for ileostomy closure and discharged on 01.12.2013, thereafter, he followed up the OPD in March, 2014 and diagnosis of incisional hernia was made which was not an unusual development after surgery. It is submitted that on 14.04.2014, proper pre-anesthetic check-up and risk stratification and clearance were taken. The consent for the procedure was taken after explaining in detail the risk and thereafter, the deceased was taken for surgery on 14.04.2014. There was a large incisional hernia with dense adhesions of omentum, small intestine and stomach. It is submitted that comprehensive adhesiolysis was done using Harmonic Scalpel and two large meshes were used to close hernia defects and the deceased was shifted to ICU. It is submitted that no guarantee was given that the deceased would be discharged after 3 days and the deceased was regularly visited by the Ops No.2 and 3 on daily basis. It is submitted that all the developments of the deceased were recorded in writing on the medical record file. It is submitted that at the time of 3 post-operative day i.e.rd 16.04.2014, complication was noticed i.e. the deceased had an episode of cough as there was a suspicion of mesh migration and appearance of hernia bulge. No procedure was undertaken without consent and without explaining the condition of the deceased and risk explanation. The deceased was shifted to ICU as per the deceaseds clinical requirements and if the patient progressed well, he was to be shifted to ward care only. It is submitted that the deceased was assessed regularly and CT scan was not advised as it was not considered necessary in order to contribute to the diagnosis in the clinical judgment of the treating Ops no.2 and 3. On 20.04.2014 i.e. 6 post-operative day while dressing the wound, there wasth suspicion of leakage of intestinal contents from main wound and without any delay the necessary steps were taken. It is submitted that no definite opinion could have been given without full examination in operation theatre of a post-surgery patient. The deceased was taken for laparotomy. There was intestinal contents and a small peroration was noticed in distal ileal loops in RIF and adhesiolysis was done, perforation repaired and abdomen lavaged thoroughly. It is submitted that post-operation deceaseds condition was critical with features of septic shock and multi organ dysfunction for which he was managed in ICU with antibiotics, mechanical ventilation, ionotropes and dialysis. It is submitted that all developments were shared with the patients relatives and consent was taken for all procedures/interventions. The condition of the decease did not show improvement and had cardiac arrest twice on 21.04.2014. The deceased was revived from first arrest but could not be revived after second arrest on 21.04.2014 and was declared dead at 8:20 PM. It is submitted that complete medical records were duly provided to the complainant No.1 and received/acknowledged by the complainant No.1. Thus, there is no deficiency in service on the part of the Op No.1 and prayed for dismissal of complaint. The Op No.2 appeared before this Forum and filed written statement. It is submitted that the complainant did not get the matter examined from Medical Board. It is submitted that the deceased-Mr.Achhra Sud was 76 years old. It is submitted that the deceased was suffering from cancer of large intestine. It is submitted that the deceased was earlier operated in Australia in the year 2012, where emergency surgery was performed and he developed major postoperative complications of wound infection and dehiscence. It is submitted that the second and third operations for cure, were successfully performed at Alchemist hospital and he was sent to home in good health and fully satisfied. It is submitted that fourth operation was necessitated as the deceased developed an incisional hernia, which was not an unusual complication of multiple abdominal surgeries and previous wound infection and dehiscence. It is submitted that the deceased consented for laparoscopic hernia repair. It is submitted that the relatives of the deceased signed the consent forms i.e. five before admission and surgery for incisional hernia and seven for interventions which were required in the postoperative period. It is submitted that the complainant No.1 was not a party to the deceaseds surgery. It is submitted that the operation of incisional Hernia repair by laparoscopy was performed by Dr.Mudit alone on 14.04.2014. It is submitted that the deceased was monitored in Intensive Care Unit, was regularly seen by the attending doctors, Op No.2 and other associated specialists and all necessary interventions. It is submitted that every effort was made to save the life of deceased but overwhelming infection with background of age and cancer did not allow him to fight his way out of the unfortunate complications. It is submitted that both son and daughter of the deceased were advised to undergo investigations after the first admission and surgery of deceased in October, 2014 but they did not take seriously the advised given by Ops. Thus, there is no deficiency in service on the part of the Op No.2 and prayed for dismissal of complaint. The Op No.3 appeared before this Forum and filed written statement. It is submitted that Mr.Acchra Dass Sud came to the OPD of Ops No.2 and 3 for follow up of the operative procedure done in Australia i.e. surgery of cancer of large bowel polyposis coli. It is submitted that the deceased had three admissions as necessitated for the clinical conditions and was operated three times for the various disease conditions. It is submitted that the deceased was regularly visited by the Ops No.2 and 3 on daily basis at he was assessed on those visits. The deceased was also under the continuous care of ICU doctors. All the developments of the deceases condition were recorded in written on the medical record file. It is submitted that the family members of the deceased had come to Alchemist Hospital for the treatment of deceased who was already under treatment of intestinal problems in Australia. The team of doctors involved in the treatment includes Senior Gastro-intestinal Surgeons, Anesthetists, ICU team, kidney specialist and heart specialist. The treatment was done with complete medical and professional ethics. It is submitted that all the consent and consents with high risks have been signed by the complainant NO.1. It is submitted that the Ops No.2 and 3 counseled with the complainant No.1 who made called to his sister i.e. complainant No.2 and she was counseled telephonically. It is submitted that on 16.04.2014, complication was noticed and nothing was ignored or overlooked as the deceased had an episode of cough following which there was a suspicion of mesh migration and appearance of hernia bulge. Under local anesthesia the hernia explored on 16.04.2014. No procedure was undertaken without consent and explaining the condition of the deceased and risk explanation. Nature of the fluid suggested ascites and contents were not intestinal, therefore, no perforation of gut. It is submitted that the deceased was shifted to ICU as per the deceaseds clinical requirements and then shifted to ward care only. It is submitted that appropriate steps were taken and restoration of oral feeding was done. The deceased had slow recovery, able to tolerate oral diet and was passing stools. It is submitted that the deceased was assessed regularly and CT scan was not advised as it was not considered necessary in order to contribute to the diagnosis. It is submitted that on 20.04.2014 while dressing the wound, there was suspicion of leakage of intenstinal contents from main wound and without any delay necessary steps were taken. It is submitted that the Op No.3 is a qualified doctor and had worked with Alchemist Hospital, Panchkula as a part-time consultant and has treated the patients with full sincerity who was admitted in hospital or visit the OPD for consultation and treatment. It is submitted that during Anesthesia, it was identified that he had a polypoidal tumor in throat that was causing airway obstruction. The relative of deceased were informed about the finding and they were advised for ENT consultation later. It is submitted that the deceased recovered from surgery and was discharged from the hospital on 11.10.2013. It is submitted that the deceased had polyposis of large intestine and the complainants No.1 & 2 also advised to undergo their own checkups also. It is submitted that the deceased was again admitted in hospital on 22.11.2013 for second planned surgery. He was again treated by the multispecialty team of doctors. He recovered from the surgery and was discharged on 01.12.2013. In the month of March, 2014, the deceased was diagnosed to be having ventral abdominal incisional Hernia. The cause of hernia and its possible management options were discussed in detail with the patient and family members. It is submitted that the complainants were completely satisfied with the earlier two admissions and surgeries and that is the very reason for the patient to come to the treating Ops no.2 and 3. The deceased was advised total proctocolectomy for proper and complete treatment of cancer. The surgery was suggested not for convenient and better living, but for treatment. It s submitted that while in ICU on 17.04.2014, as a part of physiotherapy exercises he was encouraged to expectorate the secretions in throat. It is submitted that on 20.04.2014, the deceased notice that his clothes were wet. After examination, it was found that there were intestinal contents leaking from the abdominal wound and diagnosis of intestinal perforation with external leak was made. The condition and seriousness was discussed with the family member. Thus, there is no deficiency in service on the part of the Op No.3 and prayed for dismissal of complaint. The Op No.4 appeared before this Forum and filed written statement. It is submitted that the Op No.4 being the insurer of the Op No.1 is only liable as per terms and conditions of the policy. It is submitted that the policy is subject to compulsory excess of Rs.1,00,000/-. Thus, there is no deficiency in service on the part of the Op No.4 and prayed for dismissal of complaint. The Op No.5 appeared before this Forum and filed written statement by taking some preliminary objections and submitted that the complainant is not a consumer under the definition of consumer. It is submitted that the complainant has not come with clean hands as he has concealed material facts to grab money from the insurance company i.e. Op No.5. It is submitted that the Op No.5 had issued cover note No.955681 in favor of Dr.S.P.Kaushik under the Doctors Professional Indemnity Policy with limits of liability as five lacs in the ratio of 1:1 both for anyone incident and anyone year being renewal of the earlier policy subscribed by the Op No.2. It is submitted that the Op No.5 could be asked to indemnify the loss if any provided the Op No.2 has complied with all the terms and conditions and did not breach any of the conditions of the contract of the Insurance reached between the parties. It is submitted that the principal of res-ipsa loquitur is applicable in the given circumstances. It is submitted that the insured doctor/treating doctors are well qualified and distinquished personalities in their field and it could not be believed that a doctor would like to harm his/her patient negligently and without proper application of mind. Thus, there is no deficiency in service on the part of the Op No.5 and prayed for dismissal of complaint. The complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-7 and closed his evidence. On the other hand, the Op No.1 has tendered the evidence by way of affidavit Annexure R1/A alongwith documents Annexure R1/1 to R1/12 and closed the evidence. The Op No.2 has not tendered his evidence after availing many opportunities and the evidence of the Op No.2 was closed by court order vide order dated 08.02.2015. The Op No.3 has tendered the evidence by way of affidavit Annexure R3/A alongwith documents Annexure R3/1 to R3/3 and closed the evidence. The Op No.4 has tendered the evidence by way of affidavit Annexure R4/A alngwith document Annexure R4/1 and closed the evidence. The Op No.5 has tendered into evidence by way of affidavit Annexure R5/A alongwith document Annexure R5/1 and closed the evidence. We have heard learned counsel for the parties and have also perused the record available on the file. Admittedly, the father of the complainant-Sh.Achhra Dass was treated and operated for subtotal-colectomy & post operation in the year 2012 in Cannterbury Hospital in Sydney. Subsequently, the deceased Achhra Dass admitted in hospital of OP No.1 on 01.10.2013 for complete colectomy which was done on 03.10.2013 by the Ops No.2 and 3 and the deceased was discharged on 01.12.2013. Thereafter, in the last week of February, 2014 and in the second week of March, 2014, the deceased alongwith complainants approached the Op No.2 and 3 for routine check up and after examination by Ops No.2 and 3, the deceased was declared alright. The learned counsel for the complainant has submitted that on asking by the complainant, the Op No.2 told that the deceased was suffering from abdominal Hernia and advised that the deceased could be cured by operating through a minor laproscopic operation. On the advice of the Ops No.2 and 3, the deceased was admitted on 13.04.2014 and he was operated on 14.04.2014 by the Ops No.2 and 3. On 17.04.2014, after examination the Ops No.2 and 3 advised for thoroughly checkup and they have apprehension that mesh has been displaced and it seems that some stitches have loosened. The deceased was taken to the operation theatre and it was explained to the complainant that some water was found in the stomach which was removed by conducting a minor operation. However, on 20.04.2014, the deceased told the Ops No.2 and 3 that the problem being faced by him. After examination by the Ops No.2 and 3, the deceased was taken to the operation theatre for check up. The Ops No.2 and 3 told the complainants that the nerve in the stomach had ruptured and they have restored the same. The deceased was shifted to ICU and kept on ventilator. On 21.04.2014, the condition of deceased was critical due to some nerve had burst in the stomach due to which some poison spreading in the body and in the emergency operation was conducted. However, the deceased was died on the same day i.e. 21.04.2014 at around 8.20 PM. On the other hand, Ops No.2 and 3 filed their separate written statement taking identical plea as was taken by Op No.1 and all of them submitted that there was no deficiency in service on their part and prayed that the complaint should be dismissed. The learned counsel for the Op No.1 submitted that the Hospital of Op No.1 has a well equipped operation theatre, Critical Care Area and CCU. It is further submitted that Op No.2 (Dr.S.P.Kaushik) and Op No.3 (Dr.Mudit Kumar) are qualified doctors. The deceased came to the OPD of Ops No.2 and 3 for follow up of the operative procedure done in Australia i.e. surgery for cancer of large bowl polyposis coli. The deceased was operated 3 times for the various deceased condition as required and the complainants were completely satisfied with the earlier 2 admissions and the surgery. It is further submitted that the deceased had a history of colon adenocarcinoma and inadequate and incomplete surgery was done in Australia which has complication of wound dehiscence as per the record of Canterbury Hospital, Australia. The deceased was advised total proctocolectomy for proper and complete treatment of cancer. The deceased was admitted on 01.10.2013 and complete proctocolectomy was done on 03.10.2013 and was discharged on 11.10.2013. The deceased was again admitted in the Hospital on 22.11.2013 for ileostomy closure and discharged on 01.12.2013. Thereafter, he followed up in the OPD in March, 2014 and diagnosis of incisional hernia was made which was not unusual development after surgery. It is further submitted that on 14.04.2014 proper pre-anesthetic check up and risk stratification and clearance were taken. The consent for the procedure was taken after explaining in detail the risk and thereafter, the deceased was taken for surgery on 14.4.2014. It is further submitted that comprehensive adhesiolysis was done using Harmonic Scalpel and two large meshes were used to close hernia defects and the deceased was shifted to ICU. It is further submitted that at the time of third post operative day i.e. 16.04.2014 complication was noticed i.e. the deceased had an episode of cough as there was suspicion of mesh migration and appearance of hernia bulge. The deceased was shifted to ICU as per the deceaseds clinical requirements. On 20.04.2014 i.e. 6 operative day while dressing the wound, there wasth suspicion of leakage of intestinal contents from main wound and without any delay the necessary steps were taken. The deceased was taken for laparotomy. There was intestinal contents and small peroration was noticed in distal ileal loops in RIF and adhesiolysis was done, peroration repaired and abdomen lavaged thoroughly. It is further submitted that the post operation deceaseds condition was critical with features of septic shock and multi organ dysfunction for which he was managed in ICU with antibiotics, mechanical ventilation, ionotropes and dialysis. However, the condition of the deceased did not show improvement and had cardiac arrest twice on 21.04.2014. The deceased was revived from first arrest but could not revived after second arrest on 21.04.2014 and was declared dead at 8.20 PM. The learned counsel for the Ops NO.2 and 3 also took similar plea. During the pendency of the present complaint, the learned counsel for the Op No.3 moved an application for referring the medical record of the case to the PGIMER, Chandigarh on 09.04.2015. The case was adjourned to 27.04.2015 for filing the reply. However, the complainant stated that he has no objection if the medical record of the case be sent to the PGIMER, Chandigarh and as per order dated 27.04.2015, the case was referred to the PGI, Chandigarh and the Director, PGI, Chandigarh was directed to constitute a medical board of
3 doctors who can examine the record in the presence of both the parties after issuing the notice to the parties and send their expert opinion to this Forum on or before 01.06.2015. The report of expert has been received on 01.06.2015 and the case was adjourned to 12.06.2015 for filing objections if any by the complainant. However, the complainant filed his objection on 12.06.2015 to the effect that the medical board has prepared the report after taking into consideration the copy of complaint and annexures filed by the complainant which were sent to the PGI as per order of this Forum dated 27.04.2015 without issuing any notice and in the absence of complainant and Ops. Keeping in view the abovesaid objection, the case was again referred to PGI, Chandigarh with the direction to reconstitute the new medical board of 3 doctors who may examine the record in the presence of both the parties after issuing notices to them and send their expert opinion on the basis of record already send to them alongwith the order dated 27.04.2015 to this Forum on or before 20.08.2015 vide order dated 09.07.2015. The report of the expert was received on 19.10.2015 which is reproduced as under:-
As per records, the deceased patient developed complication in the form of intestinal perforation and septicaemia resulting in his demise. This complication in the post-operative period after the surgical operation (Laparoscopic Mesh Ventral Hernioplasty of Incisional Hernia with Adhesiolysis) is known to occur and per se does not denote medical negligence.
During the pendency of the present complaint, the learned counsel for the complainant requested for the cross-examination of Dr.Mudit Kumar i.e. OP No.3 which was dismissed by this Forum vide order dated 04.05.2016. Against the abovesaid order, the complainant filed revision petion
No.50 2016 before the Honble State Commission and the Honble State Commission vide their order dated 19.09.2016 set aside the order of this Forum and allowed the complainant to cross-examine the abovesaid witness i.e. Op NO.3. On 15.11.2016, the counsel for the complainant cross-examined Dr.Mudit Kumar i.e. OP No.3 at length but he could not impeach the credibility of Op No.3. For determination of the contentious point about whether there was any negligence on the part of the Ops in treating the deceased or whether there was any deficiency on their part thereby, the cue can be found in the opinion recorded by the medical personal team of the PGI, to which the matter had been referred by the Forum on the plea of the Op No.3 vide order dated 27.4.2015. It would be apparent from a perusal thereof that not only that the complainants did not file a reply to that application, (as also their counsel) told the Forum that they had no objection to the record being forwarded to the PGI or GMCH, Sector-32, Chandigarh. The Medical Board of the PGI recorded a categorical report negativing any negligence in the course of the treatment. Our attention has not been invited during the course of the hearing to any fact or circumstance which may persuade us to flaw the report of the Medical Board. Keeping in view of the above, we are of the opinion that peculiar state of health of deceased, the Ops No.2 and 3 have given him the treatment to the best of their knowledge and ability. When a patient visits a doctor for treatment of any disease, then it is the prerogative of the doctor itself to choose the best treatment for his patient. The patient cannot force his own view/opinion about the medical treatment upon the doctor. Our view in the context is well substantiated with the judgement passed by the Honble Apex Court in
Kusum Sharma & others Vs. Batra Hospital & Medical Research Centre & other
2010 (2) CLT 282 wherein the Honble Apex Court held as under:-
1. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution-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. 2. An error of judgment is not necessarily negligence.
3. 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 circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
Similarly the Honble National Commission in case of Manteswar vs. Dr.Sumit held as Banerjee & anr. and Megha Eye Centre
2016(3) Law Herald (SC) 2296 under;-
No cure is not a negligence- The doctor should not be punished for, if anything goes wrong- It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish-Things have gone wrong and, therefore, somebody must be found to answer for it- A professional deserves total protection.
Keeping into consideration the facts and circumstances of the case, no deficiency or negligence on the part of the Ops No.1, 2 and 3 can be attributed which may warrant any penal action against the Ops. The complaint as such is dismissed with no order as to costs. A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance. Announced 06.04.2017 JAGMOHAN SINGH ANITA KAPOOR DHARAM PAL MEMBER MEMBER PRESIDENT Note: Each and every page of this order has been duly signed by me.
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