IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 279 of 2007. Judgment reserved on 2nd June, 2010. Date of Decision: 16th June, 2010. _______________________________________________________ Miss Kunjan Sharma and another ….Appellants. Versus State of Himachal Pradesh and others ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. B.C. Verma, Advocate. For respondent No.1 : Mr. A.K. Bansal, Additional Advocate General. For respondents No.3 & 4 : Mr. Mohan Singh, Advocate. ____________________________________________________ SURINDER SINGH, J. The appellants felt aggrieved and dissatisfied with the judgment and decree passed by the learned Additional District Judge, in Civil Suit No.11-S/1 of 2004, decided on 16th November, 2006 whereby their suit for the recovery of damages was dismissed, hence this appeal. 2 (a). In short, the case of the parties can be stated thus. Late Smt. Sapna Devi (deceased) was married in the year 1996 to Shri Vijay Kumar, father of the appellants. During this wedlock in the year 1997, she gave birth to a female Whether reporters of the Local papers are allowed to see the judgment? - 2 - child Miss Kunjan Sharma. Again, in the year 2002 Smt. Sapna Devi conceived pregnancy and was getting medical advice in Zonal Hospital, Solan from respondent No.2 Dr. Amrish Kapoor. She had been visiting the hospital for the periodical check-up. The doctor gave 11th February, 2003 as the expected date of delivery. 2 (b). It is alleged that on 7th February, 2003 Smt. Sapna Devi visited hospital. Respondent No.2 informed her that he would not be available on the date of expected delivery. In case she intended to give a birth to the child under his care, in that eventuality she should get herself admitted in the hospital for stimulating labour pains. Deceased was having blind faith on him and decided to go ahead as advised. She was admitted in the hospital on 8th February, 2003. Various medicines were alleged to have been injected to her so as to stimulate labour pains and was taken to labour room at 8.15 p.m. on the same day. 2 (c ). Respondents Neena Walia and Nirmala Verma, who were nursing staff posted in the hospital, were on duty. Around 8.30 p.m. the deceased was got checked up by Dr. Amrish Kapoor and he left certain instructions with the nursing staff and left the hospital. He also assured normal delivery. It is an admitted case of the parties that at 9.30 p.m. Smt. Sapna Devi gave birth to a female child, i.e., appellant Miss Lakshsita without any complication. It is the - 3 - case of the appellants that respondents No.3 and 4 left the labour room and asked the attendants of Smt. Sapna Devi to remain present turn by turn and the deceased was put on drip I.V. glucose. 2 (d). It is alleged that Sunita Kaushik one of the attendants, went inside the labour room, she found that late Smt. Sapana Devi was lying naked and bleeding had not stopped. Thereafter she contacted nursing staff, i.e. respondents No.3 and 4, but according to them everything was normal. Around 10.00 p.m. deceased complained of acute pain due to cold. The nursing staff was informed about it, her attendants and her husband in turn were informed that there was nothing to worry. Around 10.45 p.m. deceased further started to complain about acute pains and cold. On this, the husband of the deceased contacted respondents No.3 and 4. They told that this was a routine matter. They should not disturb them and they know what was their duty and what should be done. 2 (e). This was also the case of the appellants that due to callous attitude of the nursing staff the condition of the deceased became bad to worst. During mid night around 1.00 a.m. Sunita Kaushik was informed by the deceased that she was feeling giddiness and black spots were appearing before her eyes. On this, she contacted respondents No.3 - 4 - and 4 and they visited the labour room. On checking pulse rate of deceased both of them became perplexed and gave a call to the doctor on duty. One lady doctor attended the patient and immediately asked to call respondent No.2 who was treating her and also to arrange for the oxygen. Oxygen cylinders were brought, but these were found empty. The doctor on duty tried to administer glucose, but it did not yield fruitful result. Thereafter, respondent No.2 came there and asked to remove the deceased to the ward as the condition had become out of control. Ultimately she died for want of proper medical care and check-up. 2 (f). The nursing staff is alleged to have failed in their duty and it is alleged that the doctor also adopted indifferent attitude. The legal notice was served under Section 80 of the Code of Civil Procedure. 2 (g). The suit was filed by minor appellants through their father Shri Vijay Kumar as indigent person for the recovery of Rs.10 lacs as compensation. Appellants were permitted to institute the suit as indigent persons. Their father had also filed a separate suit for the recovery of the damages, which was later dismissed. 3. The respondents offered strong resistance to the suit. Nursing staff (respondents No.3 and 4) denied any negligence in performance of their duties as alleged. - 5 - Respondent No.2 Dr. Amrish Kapoor in his separate written statement questioned the maintainability of the suit and on merits it was averred that Spana Devi gave birth to a female child at Zonal Hospital, Solan on 8th February, 2003 and this was a case of normal delivery. It was also denied that the deceased had bleeding and also complained of acute pains in the leg as alleged. According to him, despite best efforts made by him and the nursing staff attending her she could not survive because the deceased had developed embolization which culminated sudden cardio respiratory failure. It was beyond the control of the respondents. Despite best efforts and medical treatment given by respondent No.2 deceased could not survive and her death took place due to the natural cause. He specifically averred that he was informed around 1.00 a.m. to attend the deceased by her husband Vijay Kumar. He took up his vehicle and reached the hospital within five minutes and he did his best to save the deceased, but in vain. 3. In replication, the preliminary objections were denied and even paras of the plaint were reaffirmed. 4. The learned trial Court framed the following issues:- 1. Whether the death of Smt. Sapana Devi was caused on account of rash and negligent act of defendants No.2 to 4? OPP. - 6 - 2. If issue No.1 is proved, to what amount of compensation, the plaintiffs are entitled to and from whom? OPP. 3. Whether the suit is bad for want of notice under Section 80 CPC as alleged? OPD. 4. Relief. 5. The parties led their evidence and after hearing the parties, the learned trial Court held that there was no negligence act attributed to the respondents. Therefore, the appellants were not entitled for any compensation; as such the suit of the plaintiffs was dismissed. 6. In appeal, Shri B.C. Verma, learned Counsel for the appellants vehemently argued that the learned trial Court did not appreciate the evidence on record in its right perspective which has caused miscarriage of justice. Learned Counsel took me through the evidence on record and ventilated that the negligence on the part of the respondents is writ large. Therefore, the appellants are entitled for compensation etc. 7. Contra, Shri A.K. Bansal, learned Additional Advocate General and the learned Counsel for other respondents, supported the impugned judgment and decree passed by the learned trial Court. 8. I have given my thoughtful consideration to the rival contentions of the learned Counsel for the parties and have carefully gone through the evidence on record. - 7 - 9. By way of affidavits PW-1 Vijay Kumar, husband of deceased, PW-2, Sunita, PW-3 Ramesh Dutt and PW-4 Shanta Sharma, sister of deceased, have unequivocally stated and supported the case of the respondents to the extent that it was a case of normal delivery. The deceased had given birth to a female child at 9.25 p.m., but according to them around 10.00 p.m. the deceased started making complaint that she was feeling pain and cold and despite repeated requests made to respondents No.3 and 4 to attend the deceased they maintained callous attitude and did not even enter the labour room to provide medical-aid and further that respondents No.3 and 4 did not visit the labour-room despite repeated requests and when they visited the labour-room they gave a call to the lady doctor on duty. It was thereafter on her advice respondent No.2 was called. But her condition became out of control, thus she died. All these witnesses are close relatives of the deceased. PW-4 Shanta Sharma in her cross-examination stated that the doctors were doing normal check-up when the deceased was taken to the labour-room and she stated that it was a case of normal delivery. 10. As against this respondent No.2 Dr. Amrish Kapoor appeared in the witness box as DW-1. He also stated that it was a normal delivery. According to him, he received a call from the hospital at 1.00 a.m. and without any loss of - 8 - time he visited the hospital in his own car and provided every possible medical-aid which was under his power and control, but he could not save the deceased. He categorically stated that the deceased all of sudden developed pulmonary embolism leading to cardiac respiratory arrest which was beyond his control. He specifically denied that she died due to gross professional negligence. He also denied that he had stimulated labour- pains to the deceased for the early deliver. 11. Respondent No.3 Neena Walia also examined herself as DW-2. She also made similar version and denied that any rash and negligent act in the performance of the duty by the respondents. 12. It is pertinent to note that postmortem of the dead body was not done, therefore, the actual cause of death was not known. Further, on the complaint of husband of deceased Vijay Kumar, Chief Medical Officer, constituted a Medical Board of doctors to enquire into the cause of death of Sapana Devi, under the Chairmanship of Dr. Haryal Chauhan and Dr. P.C. Negi, Professor Cardiology, Dr. R.K. Patial, Associate Professor, IGMC, Shimla and Dr. Anita Pal, Assistant Professor OBG and Gyane, Kamla Nehru Hospital, Shimla were the Members. The medical board after going through the medical record, was of the opinion that the deceased had died due to sudden cardio respiratory arrest - 9 - probably due to pulmonary embolism. According to the expert opinion, pulmonary embolism is sudden and if massive is fatal within a short time and medical help may not be fruitful in ordinary hospitals. However, highly specialized medical help in the form of thrombolysis or embolectomy after confirming diagnosis may be of help in a specialized tertiary care centre. This report Ext.DW-5/A is proved by Dr. P.C. Negi. 13. On the thoughtful examination of the treatment- record, it also transpires that the deceased was also checked up by lady Dr. Savita Aggarwal who was on duty on 8th February, 2003 at 10.00 p.m. after the delivery. She also tendered in her evidence her affidavit. She testified that throughout the night she remained on duty in the doctor’s room, but she was not called by any one. She was also not informed about any complication by any one and it was only 1.00 a.m. on 9th February, 2003 she was informed and gave a call to Gynecologist, who immediately attended her. In her cross-examination she stated that she was called by the nursing staff, at that time the deceased was gasping and her pulse rate was not recordable. She also stated that when Dr. Amrish Kapoor had come to the hospital, deceased was alive and attended her. 14. Supreme Court in a recent judgment Kusum Sharma & Others v. Batra Hospital & Medical Research - 10 - Centre & others JT 2010 (2) SC 7, while dealing with the cases of negligence, examined various pronouncements and while deciding whether the medical profession is guilty of medical negligence held that 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 do. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring 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. IV. A medical practitioner would 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. - 11 - 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 the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such - 12 - malicious proceedings deserve to be discarded 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. 95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.” 15. Applying the aforesaid principles, enumerated in the preceding paras in dealing with the cases of medical evidence, the conclusion becomes irresistible that the appellants failed to make out a case of medical negligence. 16. In the instant case, delivery of the child was normal. The deceased gave birth to a fully grown female child almost two days before the due date. Everything went on well till late night. DW-6 Dr. Savita Aggarwal was on duty. She lastly checked-up the deceased at 10.00 p.m. and thereafter at 10.30 p.m., as is evident from the medical - 13 - treatment record. In fact, sudden pulmonary embolism may occur at any time with or without preceding evidence of deep vein thrombosis, which cannot be attributed to the negligence of the doctor. On having been informed, doctor and the nursing staff did what they could do in the circumstances and the doctor (respondent No.2) performed his duty and exercised an ordinary degree of professional skill and competence. 17. By applying the aforesaid principles laid down by the Apex Court, in my opinion, appellants failed to prove their case. The suit was rightly dismissed. Thus, the appeal is without merit and is also dismissed. Parties are left to bear their own costs. June 16, 2010. (Surinder Singh), J. (rc)