HARNEK SINGH & ORS. versus GURMIT SINGH & ORS.
[2022] 4 S.C.R. 209, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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HARNEK SINGH & ORS.
v.
GURMIT SINGH & ORS.
(Civil Appeal Nos. 4126-4127/2022
MAY 18, 2022
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Medical Negligence: Deficiency of service – Claim for
compensation – Complainant’s wife, government school teacher
diagnosed with gall bladder stones – Respondent no. 1-laparoscopic
surgeon at respondent no. 2-hospital performed laparoscopic
cholecystectomy for removal of the gall bladder stones – After
surgery, the patient became very serious – On request, the
respondent no. 1 shifted the patient to respondent no. 4-hospital,
referring her to respondent no. 3-doctor – Respondent no. 3 advised
against the immediate surgical intervention owing to the patient’s
multiple ailments – However, patients condition became critical and
an emergency laparotomy was performed – Patient’s condition
became critical and died due to multi organ failure – Consumer
complaint – State Consumer Dispute Redressal Forum-SCDRC found
respondent nos. 1 and 2 negligent and directed them to pay
compensation to the complainant, however, the respondent nos. 3
and 4 were exonerated – Ethics committee of the MCI also found
respondent no. 1 medically negligent and issued a strict warning –
However, the National Consumer Dispute Redressal Forum-NCDRC
found no negligence on the part of respondent nos. 1 and 2 – On
appeal, held: There were sufficient indicators of large bowel
perforation after the operation, to a diligent
professional to detect
and take immediate steps for restitution – NCDRC instead of
examining the material placed on record, rejected the plea of res
ipsa loquitur and held that it was 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 – NCDRC erred in reversing the findings of the SCDRC and
not adverting to the evidence on record including the report of MCI
[2022] 4 S.C.R. 209
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– Thus, the case of medical negligence made out against the
respondent no. 1 and 2 – Complainants entitled to compensation of
Rs 25 lakhs with interest @6% per annum, on the ground of
deficiency of service – Order exonerating respondent nos. 3 and 4
upheld.
Maharaja Agrasen Hospital and Ors. v. Master Rishabh
Sharma and Ors. (2020) 6 SCC 501 : [2019] 16 SCR
1185; Kusum Sharma & Ors. v. Batra Hospital and
Medical Research Centre & Ors., (2010) 3 SCC 480 :
[2010] 2 SCR 685; Jacob Mathew v. State of Punjab &
Anr. (2005) 6 SCC 1 : [2005] 2 Suppl. SCR 307;
Achutrao Haribhau Khodwa and Others v. State of
Maharashtra and Others (1996) 2 SCC 634 : [1996] 2
SCR 881; S.K. Jhunjhunwala v. Dhanwanti Kaur &
Anr. (2019) 2 SCC 282 : [2018] 12 SCR 868 – referred
to.
Case Law Reference
[2019] 16 SCR 1185
referred to
Para 24
[2010] 2 SCR 685
referred to
Para 28
[2005] 2 Suppl. SCR 307
referred to
Para 28
[1996] 2 SCR 881
referred to
Para 28
[2018] 12 SCR 868
referred to
Para 28
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4126-
4127 of 2022.
From the Judgment and Order dated 05.06.2020 of the National
Consumer Disputes Redressal Commission, New Delhi in Appeal Nos.
108 and 120 of 2008 respectively.
Raj Kiran Talwar, Harikesh Singh, Mohinder Singh, Satyendra
Kumar, Advs. for the Appellants.
Dr. Sushil Kumar Gupta, Manan Verma, Ms. Suruchi Suri, Simran
Jot Singh, Chanchal Kumar Ganguli, Anuj Chauhan, Manish Raghav,
Vaibhav Singh,
Vivik Sharma, Manoj Tomar, Maibam Nabaghanashyam
Singh, Advs. for the Respondents.
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The following Order of the Court was passed:
ORDER
1. Leave granted.
2. These appeals arise out of the decision of the National
Consumer Disputes Redressal Commission, New Delhi1 dismissing
the appeal of the complainant and allowing the appeal of the doctor
and the hospital by holding that no medical negligence was proved.
Having examined the evidence, medical records and the report of
the ethics committee of the Medical Council of India2, we have
concluded that a case of deficiency of service is made out against
the doctor and the hospital, Respondents 1 and 2, herein for medical
negligence. Allowing the appeal of the complainants, we have directed
payment of compensation. We will first refer to the facts leading to
this case.
Facts:
3. Facts as stated in the complaint filed before State Consumer
Disputes Redressal Commission3 are as follows. Appellant 1, the
complainant, is a retired Semi-Government employee and his wife
Late Mrs. Manjit Kaur, aged 47 years had been working as a
Government teacher. Mrs. Manjit Kaur, the patient, developed
abdominal pain for which an ultrasound examination was done and it
revealed the presence of gall bladder stones. On 13.07.2004 the patient
approached Respondent 1, a laparoscopic surgeon at Preet Surgical
Centre & Maternity Hospital, Respondent 2. After due examinations
and medical tests, Respondent recommended surgery for removing
the gall bladder stones and prescribed certain tests to be carried out
in advance.
4.
The complainant got the advised investigations done and
showed the results to Respondent 1. He then asked the complainant
to get yet another USG examination from a specific centre as he
was not satisfied with the earlier USG dated 14.7.2004. The
complainant complied with this instruction of Respondent 1 and again
medical tests were done from a specific USG centre on 23.7.2004.
Respondent 1 was satisfied with the results and advised the
1 hereinafter referred to as ‘the NCDRC’.
2 hereinafter referred to as ‘the MCI’.
3 hereinafter referred to as ‘the SCDRC’.
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complainant to get the opinion of a cardiologist as the tests revealed
the patient’s blood pressure to be slightly high. On 26.07.2004,
Dr. Dharamvira Gandhi, the cardiologist cleared the patient for
surgery.
5. On the morning of 28.07.2004, Respondent 1 performed a
laparoscopic cholecystectomy and placed a drain in the patient’s
abdomen. On 29.07.2004, the patient complained of abdominal pain
and distension. The drainage tube was showing a discharge of fluid
which was slightly green in colour, which later on turned greenish-
brown. When the complainant informed Respondent 1 about this, he
was told that such fluid was expected and that is why the tube had
been inserted. Respondent 1 also informed the complainant that he
had reviewed the operative CD and assured that there was no
indication of any injury, even in the operative video.
6. On the next day, the patient became very serious and the
abdominal distension and pain was compounded by difficulty in
breathing.
Respondent 1 reassured the complainants and started oxygen
infusion to the patient and prescribed some blood tests and ultrasound
examination. The request for a second opinion or referral to Rajindra
Hospital, Patiala attached to Medical College was dismissed by a
further assurance that the patient was in safe hands. Later that
evening, Respondent 1 informed the complainants the cause of the
problem was acute pancreatitis and that there was nothing wrong
with
the surgery. However, the complainants remained unconvinced,
especially because of the dirty brown discharge coming through the
drain and the persistent pain, distension and breathlessness which
were indicative of some major intestinal or bile duct injury, which the
staff of Respondent 1 had hinted. The complainant again requested
Respondent 1 to seek another opinion or shift the patient to another
hospital.
7. At around 9 P.M. on 30.07.2004, Respondent 1 decided to
shift the patient to Dayanand Medical College and Hospital, Ludhiana,
Respondent No. 4 herein and refer the patient to Dr. Atul Mishra,
Respondent No. 3 herein. Respondent 1 declined the request by the
complainant to give detailed patient records and operation notes by
stating that the patient’s condition had been adequately explained to
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Respondent 3. Dr. Punit Gupta was the doctor on duty when the
patient was admitted. As per his assessment, there was suspicion of
an iatrogenic injury to the bile duct and possibly also to the intestine,
during the previous surgery. He advised an urgent abdomen CT scan
to get a clearer picture. A CT scan was done and as per the report,
the small and large intestines were normal. However, it revealed
moderate intra-abdominal and sub-phrenic collection. Respondent 3
examined the patient and the CT scan report the next morning at 9
A.M. Since the patient was suffering from multiple ailments like
pneumonia, high blood pressure and coagulopathy, immediate surgical
intervention was not advised.
8. On 02.08.2004, the patient’s condition became critical and
she showed signs of colonic perforation. The bilious drain fluid became
feculent and foul-smelling. On 03.08.2004, an emergency laparotomy
was performed. Respondent 3 informed the complainants that there
was a large collection of intestinal contents in the abdomen due to an
injury to the colon and in addition to that there was also a bile duct
injury, which would be repaired in a subsequent surgery. The patient’s
condition kept deteriorating and she went into multi-organ failure
including failure of the respiratory system, cardiovascular system and
renal failure.
9. The patient died on 11.08.2004.
10. The complainant discussed the cause of death and the need
for autopsy with Respondent 3, however, he was told
that the patient
died due to intra-operative injuries to the colon and bile duct resulting
in Peritonitis, Peritoneal Collection, Septicaemia and Multi-Organ
failure.
Proceedings before the State Commission:
11. It is in the above-referred circumstances that the
complainant filed a consumer complaint before the SCDRC, Punjab
on 14.02.2005, which was subsequently transferred to State
Consumer Commission, U.T. Chandigarh. The complainant prayed
for monetary compensation quantified at Rs. 62,85,160 from the
Respondents for negligence and deficiency of services.
12. Respondents 1 and 2 filed a reply stating that Respondent
1 is an experienced surgeon and has performed more than 2,500
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laparoscopic operations successfully. It was explained that the
patient’s surgery was performed with proper care, but after the
surgery, she developed epigastrial pain and slight distension in the
abdomen. Immediately conservative treatment was started and the
patient got some relief from the same. However, on the night of
30.07.2004, the patient’s condition got critical, as a result of which
she was referred to Respondent 4 hospital to be treated by Respondent
3.
13. Respondents 3 and 4 in their reply denied the allegations of
negligence and stated that the hospital provided due and proper care
to the patient. It was further stated that most of the iatrogenic injuries
to the bile duct during the cholecystectomy were not recognised in
the operating room but were detected after a few days as biliary
fistula or bile peritonitis. It was stated that the initial response of
Respondent 3 was to not operate immediately as it was decided to
evaluate the nature of the leak and attempt to control the fistula.
Also, conducting the operation earlier was not medically advised.
The operation was conducted on 03.08.2004 to tackle perforation in
the large bowel.
14. A reply was also filed by Dr. Dharamvir Gandhi, the
cardiologist who stated that the patient was 47 years old and was
referred to him by Respondent 1. It was found that she was a patient
of hypothyroidism and was taking treatment for the same for the last
three years. She
complained of chest pain and breathlessness for
which she was treated with due care. Her cardiovascular status was
stable.
15. Both Respondents 1 and 3 were duly cross-examined by
counsel of the complainant on 06.07.2006. The complaint also cross-
examined Dr. Inderjit Singh and Dr. Navdeep Singh as experts before
the SCDRC.
16. The SCDRC after considering the evidence and hearing
both the parties, allowed the complaint and held Respondents 1 and 2
negligent and exonerated Respondents 3 and 4. Respondents 1 and 2
were directed to pay Rs. 15,44,000 jointly and severally and Rs. 10,000
as costs.
17. The SCDRC found that the CT scan which was performed
on 31.07.2004 showed pneumo peritoneum which meant a significant
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amount of free air in the abdomen outside the intestines was present
which is not normally present. During laparoscopic surgery, gas is
introduced into the peritoneal cavity and all the gas does not get
removed at the end of the surgery. It is a known fact that this residual
gas gets absorbed and does not stay in the abdomen for more than
24 hours. The only other area from where the gas can enter the
peritoneal cavity is the intestines if they are ruptured at any place.
The CT scan was performed three days after the laparoscopic surgery
and significant air was present even after three days which is a clear
sign of an intestinal injury. There was also some subphrenic abscess
found below the diaphragm which has to be removed, otherwise,
diaphragm movements cannot be restored. SCDRC found that it was
the direct consequence of the intra-operative injury to the bile duct
and colon caused by Respondent 1 during the laparoscopic
cholecystectomy that later led to the death of the patient. With respect
to Respondent 3, the only allegation was a delay in operating on the
patient. SCDRC found that Respondent 3 could not detect any
important sign of bowel perforation on 31.07.2004 or 01.08.2004 and
therefore he decided against any surgical intervention at that point of
time and hence there was no negligence on the part of Respondent
3.
18. The complainants filed an appeal before the NCDRC.
Simultaneously Respondents 1 and 2 also filed an appeal for dismissal
of the
Complaint.
Proceedings before the MCI:
19. It is necessary to mention at this stage that while the
proceedings were pending before the SCDRC, the complainants also
made a complaint to the Punjab State Medical Council against the
professional misconduct of the Respondents, which was summarily
disposed of on 13.06.2006. The complainants filed an appeal to the
MCI. The MCI considered the appeal of the complainant and asked
Respondents 1 and 3 to appear before the Ethics Committee. Both
the Respondents submitted their detailed replies. The Ethics
Committee considered the matter and held Respondent 1 medically
negligent and issued a strict warning to be more careful during
the procedure and to be more diligent in treating and monitoring
his patients during and after the operation. Respondent 3 was
exonerated as no medical negligence was proved against him.
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Proceedings before the NCDRC:
20. Coming back to the appeal before NCDRC, it heard both
the appeals together, i.e. the appeal filed by the complainants as well
as Respondents 1 and 2. The NCDRC observed that the patient was
operated on by Respondent 1 on 28.07.2004 and the injuries were
detected after six days. The CT scan report of 31.07.2004 ruled out
any evidence of injury or perforation peritonitis and therefore
Respondent 1 did not ignore any signs of biliary and fecal peritonitis.
Further, the complainant relied on the paramedic staff of the
Respondent 2 hospital who informed him about the operative injury,
it was held that there was no evidence in this regard. There was no
negligence found on the part of Respondents 1 and 2.
21. In the case of Respondents 3 and 4, it was found that the
patient was not fit for diagnostic laparoscopy immediately since there
were no signs of any obstructive lesion or proximal dilation. On
02.08.2004, there was a sudden deterioration in the patient’s general
condition and she was then diagnosed with bowel leak with peritonitis.
She was operated on 03.08.2004 to repair the colonic perforation.
The patient’s condition started weakening and she died on 11.08.2004
due to cardiac arrest. It was held that Respondents 3 and 4 acted
with due care and hence there was no negligence.
22. The NCDRC by way of the impugned decision on
05.06.2020 allowed the appeal of Respondents 1 and 2 and set
aside
the order of the SCDRC holding that negligence was not proved by
the complainants. It is from this decision that the present appeals
arise.
Submissions:
23. In these appeals, we have heard Mr. Raj Kiran Talwar
learned advocate for the Appellants and Dr. Sushil Kumar Gupta,
Ms. Suruchi Suri and Mr. Anuj Chauhan, learned advocates for the
Respondents.
24. Mr. Raj Kiran Talwar, learned advocate for the Appellants
made the following submissions. At the outset, he would submit, that
the patient suffered two iatrogenic injuries during her first surgery,
one to the colon and the other to the bile duct. From these two injuries,
fluids from the bile started to accumulate in the peritoneal cavity of
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the patient while the overflowing fluid started to come out of the
drain. Secondly, after the patient became critical, Respondent 1
referred the patient to Respondents 3 and 4 at Ludhiana which is at
a distance of 100 KMs instead of a local hospital at a nearer distance.
Thirdly, strong reliance was placed on the statement of Respondent
1 in his cross, where he categorically stated that it did not occur to
his mind that the injuries could take place. Fourthly, Respondent 3
negligently delayed the re-exploration surgery even after receiving
the CT scan report. Finally, the NCDRC gave its decision without
referring to the MCI findings. In support of his submission, he relied
on a judgment of this Court in Maharaja Agrasen Hospital and
Ors. v. Master Rishabh Sharma and Ors.4
25. On the other hand, Dr. Sushil Kumar Gupta, learned counsel
appearing for Respondents 1 and 2 made the following submissions.
The presence of a biliary leak does not signify injury of a bile duct as
it can occur from the liver bed from the cholecycto-hepatic duct,
slippage of a clip from cystic duct stump which are not injuries. Second,
for there to be a presence of a leakage from the large intestine, there
are some specific symptoms which were not shown and therefore
leakage of the colon was ruled out. Finally, since there was no bile
duct or colon injury, the presence of rent in the hepatic flexure of the
colon may be either a result of delayed manifestation due to thermal
injury
because of the electro-cautery, or it may be a rare case of
injury to the hepatic flexure of the colon because of the drainage
tube.
26. Ms. Suruchi Suri, learned counsel appearing for
Respondents 3 and 4 submitted that, the only allegation is of the delay
in diagnosis of colonic perforation and corrective surgery. This
according to her is proved incorrect as per the findings of the MCI,
SCDRC and the NCDRC as well. Second, the surgery was performed
diligently and with due care. The bile leak coming out of the drain
after the gall bladder surgery had occurred during the first surgery
performed by Respondent 1. The patient was already critical when
she was admitted to Respondent 4 hospital and therefore immediate
surgical intervention was not called for. However, when the fecal
matter leak was found in the drain, the patient was immediately
operated on.
4 Maharaja Agrasen Hospital and Ors. v. Master Rishabh Sharma and Ors. (2020) 6
SCC 501.
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Analysis:
27. The primary question is whether the complainant has
established professional negligence on the part of Respondents as
per the standards governing the duty to care of a medical practitioner.
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 others5; Jacob Mathew
v. State of Punjab6; Achutrao Haribhau Khodwa and others v.
State of Maharashtra and others7; and S.K. Jhunjhunwala v.
Dhanwanti Kaur8. 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,
5 Kusum Sharma & Ors. v. Batra Hospital and Medical Research Centre & Ors.,
(2010) 3 SCC 480.
6 Jacob Mathew v. State of Punjab & Anr. (2005) 6 SCC 1.
7 Achutrao Haribhau Khodwa and Others v. State of Maharashtra and others (1996) 2
SCC 634.
8 S.K. Jhunjhunwala v. Dhanwanti Kaur & Anr. (2019) 2 SCC 282.
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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.
30. The MCI examined the matter in the context of an appeal
filed by the complainants against the decision of the Punjab Medical
Council dated 13.6.2006. MCI referred the appeal filed by the
complainant to the Ethics Committee. The Committee recorded the
statement of the complainant, and the doctors Respondents 1 and 3.
The Ethics Committee also sought the opinion of Experts on the
conduct of these Respondents. The two Experts were Professors
and HODs of AIIMS, New Delhi and KGMC, Lucknow. We will
now refer to each of their opinions.
31. In the opinion of Professor and HOD, Department of
Surgery, AIIMS, extracted in the MCI report is as under:
“The findings at laparotomy confirmed it to be a case of
large bowel perforation, which could be iatrogenic, related
to the laparoscopic procedure. Appropriate surgical
intervention was done on a by now very sick patient. Patient
died on 11.8.2004.
Comment: It appears on the basis of available records that
the diagnosis and operative intervention for generalised
peritonitis as a result of bowel perforation was significantly
delayed first at the local hospital and subsequently at DMC
Ludhiana and lead to the unfavourable outcome.”
32. In the opinion of Professor and HOD, Surgery, KGMC
Lucknow, extracted in the MCI report is as under:
“In case of Dr. Gurmit Singh
also, as per records it appears
that he is not negligent his duties towards Mrs. Manjeet
Kaur during her stay in his hospital and has given care to
best of his proficiency and available facilities.  However,
following relevant observations are made: -
1. Pre-operative clearance from Cardiologist was taken.
2. Pre-operative correction of anaemia by three unit of
blood done.
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3. Pre-operative consent paper has been signed which
mentions the possibility of fatality and likelihood of
complication.
4. Post-operative second opinion was taken by Dr. Gurmit
Singh.
5. Records of Preet Hospitals are present in document sent
by you, but recorded CD of Surgery is not available.
6. In his statement of complaint, he mentions that both Dr.
Gurmit Singh and Dr. Atul Mishra are qualified medical
professionals.
7. Shifting of patient was done in distant hospital where
better GI and ventilatory facilities are claimed. However,
availability of these facilities in local city is matter of
survey, which should be sought for.
8. Minor bile leak during surgery is accepted by
Dr. Gurmit Singh, which kept on increasing in post-
operative period.
9. Bowel perforation and bile duct injuries were noted in
surgery done by Dr. Atul Mishra at Ludhiana.”
33. After considering the material on record as well as the
opinions of the Professors as indicated above, MCI concluded as
under:-
“In addition to that the Ethics Committee has decided to
request Prof. & HOD of Surgery, AIIMS, New Delhi and
Prof. & HOD of Surgery, KGMC, Lucknow to kindly assist
the Ethics Committee by going through all the records of
the case and give their opinion regarding this matter.
Accordingly, Prof. & HOD of Surgery, AIIMS, New Delhi
has given his opinion in writing and also Prof. & HOD,
KGMC, Lucknow has sent his opinion.
The Ethics Committee
after perusal of all the above
documents have come to the conclusion that –
1. In the case of Dr. Atul Mishra, no case of medical
negligence can be established against him. Therefore,
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the Ethics Committee decided to drop the matter against
Dr. Atul Mishra and exonerate him from the charges.
2. Ethics Committee found that Dr. Gurmit Singh has failed
to exercise adequate medical competence in treating the
patient 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:
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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)
A
B
C
D
E
F
G
H
223
10.
Dr. Gurmit Singh ignored the following factors namely,
(a) the patient was not recovering after the operation,
(b) the patient’s 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.
HARNEK SINGH & ORS. v. GURMIT SINGH & ORS.
A
B
C
D
E
F
G
H
224
SUPREME COURT REPORTS
[2022] 4 S.C.R.
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.
40. In view of the findings as indicated above we are of the
opinion that the appeal filed by the complainants deserves to be
allowed. The complainants had claimed an amount of
Rs. 62,85,160/- on various counts such as amounts paid to the doctors
and the hospitals for treatment, loss of income of the patient who
was a Government servant with the salary of Rs. 37,150 per month
with 10 years remaining service, damages for trauma and shock and
on
certain other grounds. Having considered the matter in detail, we
are of the opinion that the interest of justice would be subserved if
Respondents 1 and 2 are directed to pay to the complainants a total
amount of Rs. 25,00,000 (Rupees Twenty Five Lakhs only) with
interest @ 6% per annum from the date of SCDRC order as
compensation. Respondents 1 and 2 will be entitled to adjust any
amount already paid or deposited in favour of the complainants
pending proceedings. The amount shall be deposited within a period
of 6 months from today, failing which it shall carry an interest of 9%
per annum.
41. For the reasons stated above, these appeals are allowed
and the judgment of the National Consumer Disputes Redressal
Commission, New Delhi in Appeal No. 108/2008 and Appeal No.
120/2008 is hereby set aside. Parties shall bear their own costs.
Nidhi Jain
Appeals allowed.
(Assisted by : Shashwat Jain, LCRA)