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• Bhajan
  Lal Gupta & Anr. v. Mool Chand 
  Kharati Ram Hospital & Ors.
  
  2000(1)
  CPR 70 (NC)
  
    
  
  i) Consumer Protection Act, 1986 -
  Sections 2(1) (c) read with Sections
  2(1)(o) and 2(1)(g) – Complaint
  against Medical Negligence-Patient
  admitted in Mool Chand Hospital
  -Treatment suggested in G.B.Pant
  Hospital – Not available due to
  non-availability of any bed-Whether
  complaint against G.B.Pant Hospital or
  its staff (OP.Nos.6,7,8,9) regarding
  medical negligence sustainable ?(No)
  
    
  
  Held : Objections have been raised by
  some of the Respondents ,such as
  Respondent No.6, who states that there
  could be no case of medical negligence
  against him as he did not even see the
  patient nor he treated him at any time
  . Similarly ,Respondents Nos. 7,8 and
  9 have taken the preliminary
  objections . We find that these
  objections are not without substance
  .The patient was never taken to
  Respondent No.7 , as such there could
  be no question of hiring its services
  and consequently there could be no
  question of deficiency of service
  there. Insufficiency of beds in that
  hospital is something which was beyond
  the control of either Respondent No. 6
  or 7 or even 8 And 9. Further, the
  Respondent No. 6 did not at any time
  examine or treat the patient, as such,
  there was no hiring of services of
  Respondent No. 6 also, Grievance
  against Respondent Nos. 8 and 9 is not
  in the nature of a consumer dispute
  but is mainly in the nature of a
  public interest litigation which is
  beyond the jurisdiction of this
  Commission. For these reasons and in
  view of the admitted position that
  Respondent No. 6 never rendered any
  service nor did he examine, the
  patient, nor was there any hiring of
  services of Respondent No. 7, we find
  that no case is made out against these
  Respondents. Accordingly, the
  complaint against Respondent Nos.
  6,7,8 and 9 is dismissed.
  
    
  
  (ii) Law as to Medical Negligence -
  What is standard of care and duty that
  a medical practitioner owes to its
  patient? – Stated – (see Paras 8 to
  12) – Case law and standard Text Books
  discussed.
  
    
  
  Held : A medical practitioner has
  various duties towards his patient and
  he must act with a reasonable degree
  of skill and knowledge and must
  exercise a reasonable degree of care.
  This is the least which a patient
  expects from a doctor. The skill of
  medical practitioner differs from
  doctor to doctor. The very nature of
  the profession is such that there may
  be more than one course of treatment
  which may be advisable for treating a
  patient. Courts would indeed be slow
  in attributing negligence on the part
  of a doctor if he has performed his
  duties to the best of his ability and
  with due care and caution. Medical
  opinion may differ with regard to the
  course of action to be taken by a
  doctor treating a patient, but as long
  as a doctor acts in a manner which is
  acceptable to the medical profession
  and the Court finds that he has
  attended on the patient with due care,
  skill diligence and if the patient
  still does not survive or suffers
  permanent ailment, it would be
  difficult to hold the doctor to be
  guilty of negligence. But in cases
  where the doctors act carelessly and
  in a manner which is not expected of a
  medical practitioner, then in such a
  case an action in torts would be
  maintainable.
  
    
  
  In the light of the statement of law
  set out hereinabove, the question as
  to whether there has been negligence
  on the part of any of the Respondent
  in treating the decreased has to be
  viewed.
  
     
  
  The matter can be dealt with in three
  parts. One is the case against
  Respondent Nos. 1, secondly the case
  is against Respondent No. 5.
  
    
  
  (iii) Consumer Protection Act, 1986-
  Section 2(1)(c) – Complaint about
  Medical Negligence against Mool Chand
  Hospital (OP-1), its Medical
  Superintendent (OP-2) and K.L. Chopra
  (OP-3) Dr. N.K. Chopra, Associate
  consultant in Cardiology and Medicine
  (OP-4). Dr. M.S.Gulati, Sr. Consultant
  Neurology (OP- 5) – Facts showing no
  negligence on parts of OP’s 3 to 5 -
  Staff of Hospital found negligent -
  Hospital and its Medical
  Superintendent (OP – 2 ) held liable
  to pay Rs. 2 lakh as compensation to
  parents of deceased.
  
    
  
  Held : The one of the tests of medical
  negligence is that some thing which is
  required under medical practice to be
  done was not done or what was done was
  contra indicated. At the same time, it
  is also a settled principal that a
  specialist is required to know the
  latest techniques for management of
  the patient and if he is ignorant
  about it, then he could be considered
  to be negligent in following his
  profession. It is nobody’s case that
  there was some treatment which in
  those days was available for
  management of such cases which was
  either not suggested by the Respondent
  No. 5 or on which the Respondent No. 4
  differed with him. However, the
  facility of plasma pherisis being not
  available in that hospital, nobody
  could do anything about its not being
  made available to the patient. An
  effort was certainly made by the
  Respondent particularly, Respondent
  No. 5 at the request of Respondent No.
  4 to go out of his way to recommend,
  the case of the deceased to the G.B.
  Pant Hospital, Respondent No. 7,
  through the Respondent No. 6, who was
  in charge of the Neurology Department
  there and was Known to Respondent No.
  5 (Para 18)
  
    
  
  The only grievance of the complainant
  appears to be that they should have
  been referred to the AIIMS. It may be
  noted that the AIIMS or the Sufdarjung
  Hospital are opposite to each other
  and both will take the same time and
  then it was pointed out to the
  relatives of the patient that the
  Sufdarjung Hospital had this facility.
  The AIIMS is again a referral
  institute and patient had to be
  referred to it. That would have
  resulted in considerable loss of time.
  In Sufdarjung Hospital, without
  knowing any Doctor, they would first
  take the patient in the casualty /
  emergency, then refer it to the
  Specialists. It could have resulted in
  loss of precious time. It was on this
  account that apparently Dr. Chopra,
  Respondent No. 4 and the relations of
  the deceased requested for a letter of
  introduction from Respondent No. 5
  which he gave. This is no case of
  medical negligence. In fact, the
  gesture of Respondent No. 5 in
  cooperating to this extent with the
  patients relatives without any
  allegation of motive or personal gain
  has to be appreciated. It is for these
  reasons that we are unable to find any
  substance in the allegation against
  the Respondent No. 5 and the
  complainants have failed to make out
  any case of medical negligence against
  this Respondent. Therefore, the
  complaint against Respondent No. 5 is
  dismissed.
  
    
  
  Held however : it is most unfortunate
  that the condition of the patient went
  on deteriorating very fast. At one
  point of time i.e. before 11.30 a.m.
  the oxygen tube came out. That was
  noticed by the mother of the patient.
  She reported that matter to the nurse
  on duty who immediately called Doctors
  concerned on duty at that time and
  they tried to revive the patient. They
  tried to give the necessary emergency
  treatment. However, the condition of
  the patient did not improve and he
  succumbed to the ailment. In cases
  where the patient are restless it may
  happen at times that the tubes is/are
  pulled out. In this case also such a
  thing appears to have happened and on
  it being pointed out to the nurse she
  took the remedial measures of putting
  back the tube and also summoned the
  doctors for giving further treatment.
  In ICCU it is not expected that the
  relatives of the patient have to point
  out pulling out of the oxygen tube.
  Such a thing should be noticed by the
  staff on duty immediately.
  Unfortunately, the aforesaid lapse on
  the part of staff on duty turned out
  to be too expired. It is not the case
  of the Complainant that there was no
  Nurse present in the ICCU or that the
  Doctor did not turn up when summoned
  by the Nurse or that the necessary
  resuscitation measures were not taken.
  It is not acceptable that the staff on
  duty in ICCU should not notice the
  withdrawal of oxygen tube until this
  is brought to their notice by the
  mother of the deceased. It is also not
  clear as to what prevented the patient
  being not intubated prior to 11.30
  a.m. It appears to be one of the cases
  where the progress of the disease was
  so fast that not much could be done to
  the patient and on account of
  non-availability of the facility of
  the treatment of plasma pherisis, that
  latest treatment could not become
  available to the patient in time.
  
     
  
  Coming to Dr. H.K. Chopra, Respondent
  No. 4 who was the Doctor-in-Charge of
  this case under whom the patient was
  admitted, had transferred the patient
  immediately to ICCU where constant
  monitoring facilities were available
  and the patient was put on oxygen to
  relieve the breathing distress and
  when this Respondent found that there
  was need to consult a neurologist
  also, he after checking with the
  Resident Neurologist sent for Dr.
  Gulati, Respondent No. 5 for his
  opinion. Dr. Gulati, Respondent No. 5,
  also diagnosed that it was a serious
  case and that it needed further
  investigations and a specialized
  treatment, namely, plasma pherisis,
  which facility was not available in
  the Respondent No. 1 hospital and he
  suggested to Respondent No 4. that
  this patient should be put on plasma
  pherisis wherever that facility is.
  The Respondent No. 4 took him to the
  relations of the deceased who wanted
  the help of Respondent No.5 in getting
  an introduction to the hospital where
  this facility was available following,
  which he gave a letter of introduction
  to Dr. Mehandiratta, Respondent No. 6
  who was the Neurologist at the G.B.
  Pant Hospital which was one of the
  hospitals having this facility.
  According to the practice of the
  hospital, Respondent No. 5 could not
  do anything further without being
  required to do so by Respondent No. 4
  who was the Doctors incharge under
  whom the patient had been admitted.
  The Respondent No. 4 in fact, followed
  the suggestions of Respondent No. 4
  had left detailed instruction with the
  Nurse on duty on the treatment to be
  followed. No authority has been
  brought to our notice wherein the
  treatment suggested was
  contraindicated nor is there any
  evidence or even allegation to that
  effect.
  
    
  
  Looking to the fact of this case, we
  find that Respondent No. 2 had given
  detailed instruction to the staff
  incharge of ICCU. One of the important
  suggestions of Respondent No. 5 was
  that the patient be intubated. This
  suggestion was given between 9 and
  9.30 a.m. and one would have expected
  action in this behalf immediately. No
  doubt the patient had been put on
  oxygen and was otherwise being
  monitored in ICCU, yet there were two
  very serious lapse one of the nurses
  not noticing that the oxygen tube had
  come out and the other of delay of
  about two hours in intubating the
  patient. There was also a further
  lapse on the part of the Nurse not
  being vigilant to ensure that the
  oxygen tube remained in place and if
  at all it is pulled out by the patient
  it was restored immediately. In cases
  of such grave and serious nature extra
  care vigilance is required and lack of
  it can have serious consequences as it
  did in the present case. As a rule,
  only serious patient after in ICCU and
  the staff is expected to be extra
  cautions. That level of caution should
  have been more particularly, when
  staff was attributed with the
  knowledge that the patient was
  deteriorating very fast. No one is
  sure as to whether the patient would
  have pulled through that crisis or
  even if he had survived, the damages
  already done by the said disease,
  which had progressed to effect the
  entire body within a few hours and was
  still progressing could be checked or
  reversed. But, the lack of extra
  vigilance, at least contributed to the
  acceleration of the end. There is no
  evidence to show that intubation would
  have saved the patient. But, such
  action may have helped in the
  treatment. This is most unfortunate
  that the disease progressed do fast
  that before the patient could be
  removed to any center where the latest
  treatment of plasma perasis was
  available the end came. No one can
  with certainly say if intubation in
  time would have saved the patient or
  at least prolonged his life until he
  could be taken to any other hospital
  where plasma pherasis facility was
  available. Nonetheless, such delays
  and lapse in not noticing the coming
  out of oxygen tube which was in a way
  life support system are serious
  matters for which the hospital
  administration cannot escape
  liability. Even if it is argued that
  there was no callousness on the part
  of the Respondent No. 4 who was the
  Doctor-in-Charge and who accepted the
  suggestion and recommendations of
  Respondent No. 5 and gave instruction
  to give effect thereto, it is
  difficult to overlook the lapses on
  the part of the staff in the ICCU
  unit. For that reason we feel that the
  hospital would be liable to compensate
  the Petitioners. Taking an overall
  view of the matter, we feel that ends
  of justice will be served if a sum of
  Rs. 2.00 lakhs is awarded in favour of
  the Complainant and against the
  Respondent No. 1. The Respondent No. 2
  in his capacity as the Medical
  Superintendent will have the
  responsibility of ensuring prompt
  payment to the Complainants.
  
     
  
  Held Finally : In the light of the
  above discussion, we cannot fasten any
  personal liability on either fasten
  any personal liability on either
  Respondent No. 3 and Respondent No. 4
  Respondent No. 2 is only vicariously
  liable being the Medical
  Superintendent of the Respondent No.
  1. But, the amount is paid within four
  weeks of this order the 1^st
  Respondent will become liable to pay
  interest at the rate of 12% p.a. on
  the said amount from the date of this
  order till the date of payment. The
  Original Complaint id disposed of in
  the above terms.
  
     
  
  Result: Complaint party allowed
  accordingly.
  
    
  
  Important Points :
  
  If appears to be one of cases
  where the progress of the disease was
  so fast that not much could be done to
  the deceased patient and on account of
  non-availability of the facility of
  the treatment of Plasma Pherisis, the
  latest treatment could not become
  available to the patient in time so
  Doctor-in-Charge or other Doctors of
  Hospital cannot he held guilty of
  medical negligence but it is difficult
  to overlook the lapses on the part of
  the staff of the ICCU unit of Hospital
  for which Hospital would be liable
  through its Medical Superintendent for
  compensation to parents of deceased to
  the tune of Rs. 2 lacs.
  
   
  
  ORDER
  
    
  
  J.K. Mehra, Member – This
  complaint has been filed by the
  parents of deceased, late Vijay Kumar,
  who, it is alleged to have woken up on
  27^th June, 1992, at about
  4.30 a.m. with the complaint that he
  could not move his legs and felt pain,
  they called a local Doctor who gave
  the initial diagnosis that the
  complaint was psychological. That
  time, late Vijay Kumar complained that
  his legs were almost dead and he was
  feeling very weak. At that point, the
  Doctor advised that the deceased be
  removed to hospital. Accordingly, the
  deceased was taken to the Hospital
  Respondent No. 1 at or around 6.30
  a.m. and was admitted in the casualty.
  A lady Doctor examined him there and
  left saying that she will send for
  some another Doctor. About 10 minutes
  later, one male Doctor came from
  Neurology Department and examined the
  patient and took his ECG., temperature
  and blood pressure. While the Doctor
  was still examining the patient i.e.
  the deceased, he developed breathing
  trouble when an Oxygen mask was put on
  his face. But this was pulled away by
  the deceased saying that it was no
  help and was making his breathing more
  difficult. In the light of this, the
  said Doctor opined that the patient
  removed to ICU and got the patient
  removed to ICCU. The Doctor followed
  the patient to ICU, but not finding
  him there, located him in ICCU and got
  the patient shifted to ICU. In the
  meantime, the Doctor incharge,
  Respondent No. 4, Dr. H.K. Chopra ,
  under whom the admission had been
  effected after being brought in by the
  elder son of the Petitioner, went to
  check up and examine the said patient.
  After examination, Dr. H.K. Chopra,
  Respondent No. 4. A Junior Doctor from
  the Neurology Department was also
  summoned as the deceased had developed
  breathlessness and complained of pain
  in other part of the body also and was
  restless. That Junior Doctor from the
  Neurology Department put some hand
  operated instrument in the mouth of
  the deceased to assist him in
  respiration for a minute or so. At
  that stage, Doctor H.K.Chopra,
  Respondent No. 4 opined that
  Respondent No. 5 Dr. M.S. Gulati, a
  Senior Consultant in Neurology should
  also be consulted and his opinion be
  taken. Dr. Gulati, Respondent No. 5
  arrived and examined the patient at
  about 9.00 a.m. and after examination
  wrote out his diagnosis and prescribed
  medicines as under :
  
   
  
  – 27 / 6 Seen the case.
  
    
  
       Sudden onset
  of weakness of all four limbs since
  last night.
  
   
  
       Previous
  history of attack of Weakness +/- in
  Feet x 6 months.
  
   
  
       N. Ex. -
  Conscious but restless.
  
   
  
       Pupil small,
  equal and react to light.
  
    
  
  Fundus – Discs could not be focused,
  as he is Constantly moving eyeballs.
  
    
  
       No apparent
  cranial nerve palsy.
  
    
  
       Motor System
  – Total loss of movement of lower
  limbs except toes.
  
    
  
       Motor System
  – 0 to 1 shoulder Girdle muscles
  
    
  
       2-3 Distal
  muscles of upper arm.
  
    
  
       KJ  – –
  
    
  
       Aj  ++ ++
  
    
  
       P
  
    
  
       Upper limb
  jerks – depressed
  
    
  
       Sensation -
  Normal
  
    
  
       Sphincter -
  Normal
  
    
  
       Prob. Diag.

1.     
Acute Infective Polycurities

  

2.     
Hypopottasiumic Paralysis

 

3.     
??? My. Gravis Suggest

  

     –        
Fundus Ex. – without chemical Dilation or
pupils 0 after that C.S.F. exam

  

     –        
Methyl Prednisilon 500 mg. I / V in Drip
over 6 hours

  

     –        
Ryle tube

  

     –        
Nilorally except allurdox get 3

  

     –        
Tsp 6 hourly

  

     –        
To consider plasma pharisis

  

     –        
Careful watch for respiratory Distress. If
so, intubate without delay.

  

Eray
Chest Look for-Vital capacity

 

Xray C spine Blood Gases

 

Mental confusion

 

Early cynosis

 

Ampicillin 500 mg. 6 hourly

  

Thanks

 

Sd./-

  

27/6/92

 

2. He was also of the view that it was a
serious case and a new mode of treatment
namely, plasma pherasis, should be tried.
This facility, according to the Respondent
No. 5 was stated to be available at G.B.
Pant Hospital and the Safdarjung Hospital.
He is alleged to have pointed out that he
knew the Doctor-in-Charge of the Neurology
Department at the G.B. Pant Hospital, as
he had earlier worked in that very
hospital and he gave them a letter
addressed to Dr. M.M. Mehadiratta, which
reads as under:

 

– Mr. Vijay Kumar aged 26 years has been
admitted in Mool Chand Hospital today,
with almost complete paralysis of lower
limb and partial paralysis of upper limbs
(since last night). Clinically he is a
case of? Acute Ineffective Polyneuritis,
?? Hypopotassemic paralysis ??? Acute
Myaesthenia Gravis. I shall feel obliged
if you may consider him from the point of
view of PLASMAPHERASIS. We can transfer
the patient under your care if you plan
for plasmapherasis.

 

He is conscious but restless. He has got
mild respiratory difficulty.

 

– SHRI MOOLCHAND KHARAITIRAM HOSPITAL AND
AYURVEDIC RESEARCH INSTITUTE LAJPATNAGAR
III NEW DELHI – 24

 

DEATH SUMMARY OF MR. VIJAY KUMAR

 

Mr. Vijay Kumar, 24 years of resident of
4/9, Jalvihar, Lajpat Nagar, was admitted
in ICCU on 27^th June at 8.30
a.m. with the complaint of rapidly
progressing weakness of body staring at
lower limbs and upper limbs. Patient was
restless and has total loss of movements
and power of lower limbs and almost
complete loss of power of upper limbs. The
patient was straight away referred to
Senior Consultant in Neurology Dr. M.S.
Gulati. Soon after he was seen by him. The
treatment was started immediately after
admission with I.V. Dextose, Steroids and
antibiotics cover. The treatment was based
on clinical diagnosis of Acute
Polyradiculoneuropathy of acute onset. (?
Viral).

 

The diagnosis was confirmed by Senior
neurophyscians who advised to continue the
treatment. At 11.30 a.m. patient became
restless and his respiration became
laboured because of involvement of
respiratory muscled. Patient was given.
Subsequently patient had cardiac arrest
for which cardiopulmonary resuscitation
and other resuscitation measures were
undertaken. In spite of intensive
treatment the patient died at 1210 hrs on
27^th June, 1992. The death
occurred within four hours of admission
because of acute fulminsant adrenative
paralysis of the muscle of the body
including respiratory muscles. The cause
of death was acute Polyrasdiculoneuropathy
(leading to cardiac respiratory arrest).
The progonosis of the case were explained
to the relatives of the case were
explained to the relatives of the patient
by me and Dr. M.S. Gulati.

 

Sd./ xxxxx     Sd./xxxxx

 

Dr. H.K. Chopra     Dr.
M.S. Gulati

 

Associate Consultant in Cardiology
and Medicine Senior Consultant
Neurology

 

Mool Chand KR Hospital                                                   
Mool Chand KR Hospital

 

Counter signed by

 

Sd./xxxxx

   

  

Dr. (Col. K.L. Chopra) Co-ordinator
Cardiology & Medicine

  

Sd./xxxxx   

   

  

Dr. (Major Gen), J.P. Bhalla

 

Medical Superintendent M.C. K.R. Hospital.

  

4. There is another death summary on
record which is in hand writing reading as
under:

  

Mr. Vijay Kumar, 24 years Male a resident
of 4/9, Jalvihar, Lajpat Nagar, was
admitted in ICCU on 27^th June
at 8.30 a.m. with the complaint of rapidly
progressing weakness of body starting at 3
am today. The patient was restless and had
total loss of movements and power of lower
limbs with decreased power of upper lumbs.
The patient was referred to
Neurophsysician and to Anesthetist. His
vidal volume was within normal limits at
admission. At 11.30 a.m. patient became
tachypeic and his resuscitation became
laboured at 11.40 a.m. The patient was
intubated and respiration with Ambu bag
started. Subsequently, the patient
developed. Subsequently reset. CPR
started. Injc. Adrenative Injuc I/v and
intracardiac. Injecsodabicarb and inj.
Efcorlin given. The patients pupils were
widely fixed and dilated and there were no
dolls eyes movement. Cereneal reflexes was
negative. In spite of all resuscitative
measures patient could not be revived and
was declared dead at 12.10 p.m. on
27-6-1992. The cause of death was
fulminating Gullias Barse Syndromic c.
cardiorespiratory arrest.

  

Sd./xxxxx

 

(Dr. Nandini Gupta)

  

J.R. Sd./xxxxxx

  

Associate Consultant in Cardiology &
Medicine

  

Sd./xxxxxxx

  

(Col. K.L. Chopra)

  

5. This is not in dispute that the
deceased was suffering from acute
ployradiculoneuropathy and within hours
i.e. from the time he got up to the time
of admission in the Respondent No. 1 the
disease had progressed quite a lot and he
was already paralysed in the lower limbs
and that paralysis was traveling upwards
and was interfering with the other
functions of the body including breathing
and functions of other limbs. According to
the Complainant’s version Dr. Gulati,
Respondent No. 5 saw the deceased only
once. This position is admitted by
Respondent No. 5 and his stand is that he
was called by the Consultant under whom
the patient had been admitted for his
expert opinion. He, after examining the
patient, gave his diagnosis and the three
possibilities which were recorded in his
diagnosis were also mentioned in his
letter to Dr. Mehadiratta, Respondent No.
6 which were to be confirmed after the
various tests suggested by Dr. Gulati,
Respondent No. 5. From the treatment chart
it appears that the treatment which was
prescribed by the specialists was followed
although the Complainant alleged that it
was not followed meticulously because she
alleges that at one time the oxygen tube
had come out and it was only when she drew
the attention of the Nurse, that it was
put back. A short while later, the patient
was intubated shortly after 11.30. At that
time, the Nurse summoned the Doctor who
restored to artificial respiration as the
patient was unable to breathe. According
to the mother of the deceased, the patient
had died around 11.30 a.m., but according
to the hospital records, death took place
at 12.10 noon. The patient was given apart
from oxygen and other aids to breathe,
certain emergency medicines, such as
cortisone………. and also ampicilene.
All through while the patient was in
Respondent No. 1 he remained in ICCU
eversince he was shifted from ICU to ICCU.
That unit is stated to have the necessary
equipment to intubate the patient and also
the regular supply of oxygen.

  

6. Objection have been raised by some of
the Respondent, such as Respondents No. 6,
who states that there could be no case of
medical negligence against him as he did
not even see the patient nor he treated
him at any time. Similarly, Respondent
Nos. 7,8 and 9 have taken the preliminary
objections. We find that these objection
are not without substance. The patient was
never taken to Respondent No. 7, as such
there could be no question of hiring its
service and consequently there could be no
question of deficiency of service there.
Insufficiency of beds in that hospital is
something which was beyond the control of
either Respondent No. 6 or 7 or even 8 and
9. Further, the Respondent No. 6 did not
at any time examine or treat the patient
as such there was no hiring of services of
Respondent No. 6 also. Grievance against
Respondent Nos. 8 and 9 is not in the
nature of a consumer dispute but is mainly
in the nature of a public interest
litigation which is beyond the
jurisdiction of this Commission. For these
reasons and in view of the admitted
position that Respondent No. 6 never
rendered any services nor did he examine
the patient, nor was there any hiring of
services of Respondent No. 7, we find that
no case is made out against these
Respondent. Accordingly, the complainant
against Respondent Nos. 6,7,8 and 9 is
dismissed.

  

7. Coming to the role of other
Respondents, let us first examine the
legal position relating to cases of
medical negligence. As to what is the
standard of care and the duty that a
medical practitioner owes to its patient,
it will be appropriate to know some of the
decisions of the Hon’ble Supreme Court.

  

8. In Halsbury’s Laws of England, the
question of negligence and duties owned to
the patient has been dealt with on this
basis of various precedent extracts
wherefrom are reproduced hereunder.

  

22.
Negligence : duties owed to patient. A
person who holds himself out as ready to
give medical(a) advise or treatment
impliedly undertaken that he is proposed
of skill and knowledge for the purpose.
Such a person, whether he is a registered
medical practitioner or not, who is
consulted by a patient owes him certain
duties, namely, a duty of care in deciding
whether to undertake the case: a duty of
care in deciding what treatment to give
and a duty of care in his administration
of that treatment (b) A breach of any
duties will support an action for
negligence by the patient (c).

  

23. Degree of skill and care required. The
practitioner must bring to his task 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
laws requires (d); a person is not liable
in negligence because someone else of
greater skill and knowledge would have
prescribed different treatment or operated
in a different way (e) nor is he guilty of
negligence if he has acted in accordance
with a practice accepted as proper by a
reasonable body of medical men skilled in
that particular art, although a body of
advise opinion also existed among medical
men (f).

  

9. In Bolan v. Friern Hospital Management
Committee, Lords Justice Me Nair, while
briefing the Jury had directed: (i) a
doctor is not negligent, if he is acting
in accordance with a practice accepted as
proper by a reasonable body of medical men
skilled in that particular art, merely
because there is a body of such opinion
that takes a contrary view.

  

Where there are two different school of
medical practice, both having recognition
among practitioners, it is not negligent
for a practitioner to follow one in
preference to the other. American law; see
70 Corpus Juris Secumdum. Moreover, its
seem that by American Law a failure to
warn the patient of dangers of treatment
is not, by itself, negligence libid. 971,
prs. 48m).

  

In an earlier decision of this Bench in
the case of Smt. Kusum Sharma & Ors.
v. Batra Hospital & Medical Research
Centre & Ors., (sic) an extract was
quoted from Taylor’s Principle and
Practice of Medical Jurisprudence – XIII
Ed. which we consider it appropriate to
reproduce here also: – I myself would
prefer to put it in this way: A doctor is
not guilty of negligence if he has acted
in accordance with a practice accepted as
proper by responsible body of medical men
skilled I that particular art.

 

Medical science has conferred great
benefits on mankind, but these benefits
are attended by considerable risks. Every
surgical operation is attended by risks.
We cannot take the benefits without taking
risks. Every advance in technique is also
attended by risks.

 

10. Again in Roe and Woolley v. the
Ministry of Health (sic). Lord Justice had
stated thus: – It is easy to be wise after
the event and to condemn as negligence
that which was only a misadventure. We
ought always to be on our guard against
it, especially in cases against hospitals
and doctors. Medical science has conferred
great benefits on mankind but these
benefits are attended by unavoidable
risks. Every surgical operation is
attended by risks. We cannot take the
benefits without taking the risks.
Doctors, like rest of us have to learn by
experience; and experience often teaches
in a hard way.

  

In that case it was observed that, we must
not look at a 1947 accident with 1954
spectacles – (emphasis supplied). But we
should be doing a disservice to the
community at large if we were to impose
liability on hospitals and doctors for.

    

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