Case: HARNEK SINGH &amp; ORS Vs. GURMIT SINGH &amp; ORS

as is apparent from the following points: - (a) There was a large bowel perforation after the laparoscopic operation. This complication which though not known in the normal course of time, had occurred in this particular case. This complication could have been prevented if care had been exercised during the procedure by Dr. Gurmit Singh. (b) More important Dr. Gurmit has failed to suspect the occurrence of complications despite following warning, signs/symptoms- i) the patient not recovering after the operation. ii) the patient increasingly deteriorating. iii) there was a strong indication of a complication occurring after the procedure. Thereafter, his failure to detect all these conditions led to delay in diagnosis all perforation of the bowel and has to lead a situation of avoidable delay which causes increased deterioration of the patient. 34. In view of the clear findings, the MCI decided to issue a strict warning to Respondent 1 to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation. As against Respondent 3, the MCI dropped the case and exonerated him. 35. So far as present proceedings are concerned, as they arise out of a claim for compensation on the basis of medical negligence, the opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance. The findings of the Medical Council, which is a statutory regulator have been extracted hereinabove, may be formulated as under: 1. Existence of Generalized peritonitis as a result of bowel perforation. (per the opinion of Professor & HOD, Department of Surgery, AIIMS). 2. There was a significant delay in its diagnosis and operative intervention, first at the local hospital and subsequently at DMC, Ludhiana. (per the opinion of Professor & HOD, Department of Surgery, AIIMS). 3. This has led to the unfavourable outcome. (per the opinion of Professor & HOD, Department of Surgery, AIIMS). 4. Shifting of the patient by Respondent 1 was done in a distant hospital where better GI and ventilatory facilities are claimed. However, the availability of these facilities in the local city is a matter of survey, which should be sought for. (per the opinion of Professor & HOD, Department of Surgery, KGMC, Lucknow). 5. Minor bile leak during surgery is accepted by Dr. Gurmit Singh. This kept on increasing in the post-operative period. Bowel perforation and bile duct injuries were noted in surgery done by Dr. Atul Mishra at Ludhiana. (per the opinion of Professor & HOD, Department of Surgery, KGMC, Lucknow). 6. Dr. Gurmit Singh has failed to exercise adequate medical competence in treating the patient as is apparent from the facts. (Experts Common Opinion) 7. There was a large bowel perforation after the laparoscopic operation. (Experts Common Opinion) 8. The complication which though not known in the normal course of time, had occurred in this particular case. This complication could have been prevented if care had been exercised during the procedure by Dr. Gurmit Singh. (Experts Common Opinion) 9. Dr. Gurmit Singh failed to suspect the occurrence of the complication despite warning signs/symptoms. (Experts Common Opinion) 10. Dr. Gurmit Singh ignored the following factors namely, (a) the patient was not recovering after the operation, (b) the patients condition was increasingly deteriorating, and (c) there was a strong indication of a complication occurring after the procedure. (Experts Common Opinion) 11. Failure of Dr. Gurmit Singh to detect the warning signs/symptom led to a delay in diagnosis of bowel perforation and this has, in turn, led to a situation of avoidable delay which eventually cause increased deterioration of the patient. (Experts Common Opinion). 36. The above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly a case of medical negligence leading to deficiency in his services. NCDRC, except referring to the general principles of law as laid down in the judgments of this Court has not attempted to draw its conclusion from the oral and documentary evidence available on record. 37. Apart from the facts that clearly emerge from the report of the MCI, there is sufficient evidence to reiterate the same findings of deficiency. In the oral evidence, the following answers were elicited from Respondent 1 in the cross-examination which fortify the report given by the MCI. Q) Did you consider during your investigation that there was possible intra-operative injury to bile duct or intestines? A) No it did not occur to my mind. In-fact there was no such injury while the patient was in my hospital. Q) Did you think it necessary to take opinion/consultation of another Surgeon? A) I did not think it necessary in the circumstances of this case to consult another surgeon. Q) Why did you consider it proper to refer the patient to another Surgeon instead of a Chest Specialist as according to your opinion, the patient was not having any surgical problem but was having chest problem. A) The patient was referred to a Surgeon because we wanted to know that why the abdomen pain has developed as also why there was excessive discharge from the drain. 38. Having considered the matter in detail, we are of the opinion that the NCDRC has committed an error in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI. The decision of the NCDRC deserves to be set aside and we hold that the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service. 39. The State Commission as well as the National Commission and even the MCI have not found Respondents 3 and 4 negligent in performing their services, and we are in agreement with such findings and therefore, confine our conclusion and directions to Respondents 1 and 2. To this extent, we reject the appeal of the complainant against all except Respondents 1 and 2.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The SCDRC in its detailed decision considered the oral and documentary evidence including medical journals and concluded that Respondents 1 and 2 acted negligently in performing the operation. SCDRC also held that there is no evidence of negligence in so far as Respondents 3 and 4 are concerned.28. What we have noticed in the impugned decision of the NCDRC is that a substantive part of the decision refers only to judicial precedents on the question of medical negligence. Reference is made to the decisions in the case of Kusum Sharma & Others v. Batra Hospital & Medical Research Centre and others (Kusum Sharma & Ors. v. Batra Hospital and Medical Research Centre & Ors., (2010) 3 SCC 480) ; Jacob Mathew v. State of Punjab (Jacob Mathew v. State of Punjab & Anr. (2005) 6 SCC 1) ; Achutrao Haribhau Khodwa and others v. State of Maharashtra and others (Achutrao Haribhau Khodwa and Others v. State of Maharashtra and others (1996) 2 SCC 634) ; and S.K. Jhunjhunwala v. Dhanwanti Kaur (S.K. Jhunjhunwala v. Dhanwanti Kaur & Anr. (2019) 2 SCC 282) . Apart from the case laws on facts, the NCDRC devoted its attention substantially to the allegations against Respondent 3 who was anyway exonerated by the SCDRC. In so far as Respondent 1 is concerned, the NCDRC did not meet the specific allegations of negligence in the performance of the surgery.29. There was sufficient material indicative of large bowel perforation after the laparoscopic operation. It is true that it may not have manifested immediately in the normal course. However, there were sufficient indicators to a diligent professional, to detect and take immediate steps for restitution. Instead of examining the material that was placed on record, NCDRC seemed satisfied with raising and rejecting the plea of res ipsa loquitur and holding that it is impermissible to assume that any sensible professional would intentionally commit an act which would result in an injury to the patient. In these proceedings for damages due to professional negligence, the question of intention does not arise. Unfortunately, the NCDRC did not even refer to the report of the MCI. In fact, a reference to the MCI report would have been sufficient to come to the right conclusion.34. In view of the clear findings, the MCI decided to issue a strict warning to Respondent 1 to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation. As against Respondent 3, the MCI dropped the case and exonerated him.35. So far as present proceedings are concerned, as they arise out of a claim for compensation on the basis of medical negligence, the opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance.36. The above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly a case of medical negligence leading to deficiency in his services. NCDRC, except referring to the general principles of law as laid down in the judgments of this Court has not attempted to draw its conclusion from the oral and documentary evidence available on record.37. Apart from the facts that clearly emerge from the report of the MCI, there is sufficient evidence to reiterate the same findings of deficiency.38. Having considered the matter in detail, we are of the opinion that the NCDRC has committed an error in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI. The decision of the NCDRC deserves to be set aside and we hold that the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service.39. The State Commission as well as the National Commission and even the MCI have not found Respondents 3 and 4 negligent in performing their services, and we are in agreement with such findings and therefore, confine our conclusion and directions to Respondents 1 and 2. To this extent, we reject the appeal of the complainant against all except Respondents 1 and 2.