Case: V. Kishan Rao Vs. Nikhil Super Speciality Hospital

45 yrs old of patient admitted in AMC with H/o fever-8 days admitted 5 days back in NIKHIL HOSPITAL & given INJ MONOCEF, INJ CIFRAN, INJ CHOLROQUINE because of dysnoea today suddenly shifted to Y.S.S.H. for further management. Upon arrival in AMC, patient unconscious, no pulse, no BP, pupils dilated. Immediately patient intubated & ambu bagging AMC & connected to ventilator. Inj. Atropine, inj. Adhenoline, inj. Sodabicarb given, DC shock also given. Rhyth restored at 1.35 PM At 10.45 pm, patient developed brady cardia & inspite of repeated Altropine & Adhenolin. HR-`O DC shock given. External Cardiac massage given. In spite of all the resuscitative measure patient could not be revived & declared dead at 11.30pm on 24.7.20026. In the affidavit, which was filed by one Dr. Venkateswar Rao who is a Medical Practitioner and the Managing Director of the respondent No.1 before the District Forum, it was admitted that patient was removed from respondent No.1 to the Yashoda Hospital being accompanied by the doctor of the respondent No.1. From the particulars noted at the time of admission of the patient in Yashoda Hospital it is clear that the patient was sent to Yashoda Hospital in a very precarious condition and was virtually, clinically dead.  7. On the complaint of the appellant that his wife was not given proper treatment and the respondent No.1 was negligent in treating the patient the District Forum, on a detailed examination of the facts, came to a finding that there was negligence on the part of the respondent No.1 and as such the District Forum ordered that the complainant is entitled for refund of Rs.10,000/- and compensation of Rs.2 lakhs and also entitled to costs of Rs.2,000/-.  8. The District Forum relied on the evidence of Dr. Venkateswar Rao who was examined on behalf of the respondent No.1. Dr. Rao categorically deposed I have not treated the case for malaria fever. The District Forum found that the same is a clear admission on the part of the respondent No.1 that the patient was not treated for malaria. But the death certificate given by the Yashoda Hospital disclosed that the patient died due to cardio respiratory arrest and malaria. In view of the aforesaid finding the District Forum came to the conclusion that the patient was subjected to wrong treatment and awarded compensation of Rs.2 lakhs and other directions as mentioned above in favour of the appellant. The District Forum also noted when the patient was admitted in a very critical condition in Yoshoda Hospital the copy of the Haematology report dated 24.7.2002 disclosed blood smear for malaria parasite whereas Widal test showed negative. The District Forum also noted that the case sheet also does not show that any treatment was given for Malaria. The Forum also noted that the respondent-authorities, despite the order of the Forum to file the case sheet, delayed its filing and there were over writings on the case sheet. Under these circumstances the District Forum noted that case records go to show that wrong treatment for Typhoid was given to the complainants wife. As a result of such treatment the condition of the complainants wife became serious and in a very precarious condition she was shifted to Yashoda Hospital where the record shows that the patient suffered from malaria but was not treated for malaria. Before the District Forum, on behalf of the respondent No.1, it was argued that the complaint sought to prove Yashoda Hospital record without following the provisions of Sections 61, 64, 74 and 75 of Evidence Act. The Forum overruled the objection, and in our view rightly, that complaints before consumer are tried summarily and Evidence Act in terms does not apply. This Court held in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others reported in (2009) 9 SCC 221 that provisions of Evidence Act are not applicable and the Fora under the Act are to follow principles of natural justice (See paragraph 43, page 252 of the report).  9. Aggrieved by the order of the District Forum respondent No. 1 preferred an appeal to the State Consumer Disputes Redressal Commission (FA No. 89 of 2005) and the insurance company, which is respondent no. 2 before this Court, preferred another appeal (FA no. 1066 of 2005). The State Forum vide its order dated 31.10.2008 allowed the appeals.  10. In doing so the State Commission relied on a decision in Tarun Thakore vs. Dr. Noshir M. Shroff (O.P. No. 215/2000 dated 24.9.2002) wherein the National Commission made some observations about the duties of doctor towards his patient. From those observations it is clear that one of the duties of the doctor towards his patient is a duty of care in deciding what treatment is to be given and also a duty to take care in the administration of the treatment. A breach of any of those duties may lead to an action for negligence by the patient. The State Forum also relied on a decision of this Court in Indian Medical Association vs. V.P. Shantha & others - (1995) 6 SCC 651 .  11. Relying on the aforesaid two decisions, the State Forum found that in the facts and circumstances of the case, the complainant failed to establish any negligence on the part of the hospital authorities and the findings of the District Forum were overturned by the State Commission. In the order of the State Commission there is a casual reference to the effect that there is also no expert opinion to state that the line of treatment adopted by the appellant/opposite party No.1 Hospital is wrong or is negligent.  12. In this case the State Forum has not held that complicated issues relating to medical treatment have been raised. It is not a case of complicated surgery or a case of transplant of limbs and organs in human body. It is a case of wrong treatment in as much as the patient was not treated for malaria when the complaint is of intermittent fever and chill. Instead the respondent No.1 treated the patient for Typhoid and as a result of which the condition of the patient deteriorated. When the condition became very very critical the patient was removed to Yashoda Hospital but patient could not be revived.

Reasoning: 54. This Court however makes it clear that before the consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other15. We do not think that in this case, expert evidence was necessary to prove medical negligence9. We are of the view that aforesaid directions are not consistent with the law laid down by the larger Bench in Mathew (supra). In Mathew (supra), the direction for consulting the opinion of another doctor before proceeding with criminal investigation was confined only in cases of criminal complaint and not in respect of cases before the Consumer Fora. The reason why the larger Bench in Mathew (supra) did not equate the two is obvious in view of the jurisprudential and conceptual difference between cases of negligence in civil and criminal matter. This has been elaborately discussed in Mathew (supra). This distinction has been accepted in the judgment of this Court in Malay Kumar Ganguly (supra) (See paras 133 and 180 at pages 274 and 284 of the report)30. Therefore, the general directions in paragraph 106 in Dsouza (supra), quoted above are, with great respect, inconsistent with the directions given in paragraph 52 in Mathew (supra) which is a larger Bench decision31. Those directions in Dsouza (supra) are also inconsistent with the principles laid down in anothere Bench of this Court rendered in Indian Medical Association (supra) wherein ae Bench of this Court, on an exhaustive analysis of the various provisions of the Act, held that the definition of `service under Section 2(1)(o) of the Act has to be understood on broad parameters and it cannot exclude service rendered by a medical practitioner32. About the requirement of expert evidence, this Court made it clear in Indian Medical Association (supra) that before the Fora under the Act both simple and complicated cases may come. In complicated cases which require recording of evidence of expert, the complainant may be asked to approach the civil court for appropriate relief. This Court opined that Section 3 of the Act provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus the Act preserves the right of the consumer to approach the civil court in complicated cases of medical negligence for necessary relief. But this Court held that cases in which complicated questions do not arise the Forum can give redressal to an aggrieved consumer on the basis of a summary trial on affidavits. The relevant observations of this Court are:...There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into thet card containing the warning [as inChin Keow v. Govt. of] or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the civil court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the civil court for necessary relief36. It is, therefore, clear that the larger Bench in Dr. J. J. Merchant (supra) held that only in appropriate cases examination of expert may be made and the matter is left to the discretion of Commission. Therefore, the general direction given in para 106 in DSouza (Supra) to have expert evidence in all cases of medical negligence is not consistent with the principle laid down by the larger bench in paragraph 19 in Dr. J. J. Merchant (supra)37. In view of the aforesaid clear formulation of principles on the requirement of expert evidence only in complicated cases, and where in its discretion, the Consumer Fora feels it is required the direction in paragraph 106, quoted above in Dsouza (supra) for referring all cases of medical negligence to a competent doctor or committee of doctors specialized in the field is a direction which is contrary to the principles laid down by larger Bench of this Court on this point. In Dsouza (supra) the earlier larger Bench decision in Dr. J. J. Merchant (supra) has not been noticed38. Apart from being contrary to the aforesaid two judgments by larger Bench, the directions in paragraph 106 in Dsouza (supra) is also contrary to the provisions of the said Act and the Rules which is the governing statute49. In view of the discussions aforesaid, this Court is constrained to take the view that the general direction given in paragraph 106 in Dsouza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that casee Bench in Dsouza has taken note of the decisions in Indian Medical Association and Mathew, but even after taking note of those two decisions, Dsouza (supra) gave those general directions in paragraph 106 which are contrary to the principles laid down in both those larger Bench decisions. The larger Bench decision in Dr. J.J. Merchant (supra) has not been noted in Dsouza (supra). Apart from that, the directions in paragraph 106 in Dsouza (supra) are contrary to the provisions of the governing statute. That is why this Court cannot accept those directions as constituting a binding precedent in cases of medical negligence before consumer Fora. Those directions are also inconsistent with the avowed purpose of the said Act.