2009 Supreme(SC) 1093

2009(4) Supreme 165
SUPREME COURT OF INDIA
B.N. Agrawal, Harjit Singh Bedi and G.S. Sanghvi, JJ.
Nizam Institute of Medical Sciences — Appellant
versus
Prasanth S. Dhananka & Ors. — Respondents
Civil Appeal No. 4119 of 01999
With C.A. No. 3126 of 2000
Decided on : 14-05-2009

IMPORTANT POINT
Mere misjudgment or error in medical treatment by itself would not constitute negligence. Knowledge of medical practice and procedure available at the time of the operation and not at the date of trial is relevant.

Headnote:(a) Medical Negligence – Respondent showing that MRI or Myclography could have avoided excision biopsy and thus consequential complications – Held, complete investigations prior to the actual operation had not been carried out. (Para 15)

        (b) Medical Negligence – Consent – Consent for operation not made part of record – Withholding of the same would raise presumption against the NIMS – The consent given by the complainant for the excision biopsy cannot, by inference, be taken as an implied consent for a surgery. (Paras 16 and 17)

        (2008) 2 SCC 1 – Relied upon.

        (c) Medical Negligence – Test for professional negligence – Either he was not possessed of the requisite skill which he professed to have possessed – Or, he did not exercise, with reasonable competence in the given case, the skill which he did possess – If the medical profession was “hemmed by threat of action, criminal and civil, the consequence will be a loss to the patients – No doctor would take a justifiable risk and try to save his patient from a complicated disease or in the face of an unexpected problem that confronts him during the treatment or the surgery. (Paras 20 and 22)

        (2005) 6 SCC 1; (1957) 2 All ER 118 (QBD); (2005) 7 SCC 1 – Relied upon.

        (d) Medical Negligence – Mere misjudgment or error in medical treatment by itself would not constitute negligence – Knowledge of medical practice and procedure available at the time of the operation and not at the date of trial, is relevant. (Para 23)

        (e) Medical Negligence – Necessary tests which would have revealed the fact of the tumour penetrating into the vertebral column not performed – A Neuro surgeon was not associated in the diagnosis and the operation – These together constitute negligence. (Para 25)

        (f) Consumer Protection Act, 1986 – Section 22 – Contention that owing to the complicated questions of fact the matter should be relegated to Civil court not acceptable, being unjust. (Para 29)

        (2002) 6 SCC 635; (1995) 6 SCC 651 – Relied upon.

        (g) Consumer protection Act, 1986 – Section 22 – Medical negligence – Once the complainant makes out a prima facie case of medical negligence, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence. (Para 32)

        (2004) 8 SCC 56 – Relied upon.

       Facts of the case :

        1. The respondent Prasant S. Dhananka, then 20 years of age and a student of Engineering, complaining of recurring fever was examined in the hospital run by the his father’s Organisation.

        2. As the cause of the fever could not be identified, he visited the appellant -Nizam Institute of Medical Sciences (NIMS) on 9th September, 1990 in the evening OPD. He was examined by one Dr. Ashish Boghani. An X-ray revealed a mass in the left hemithorax with posterior mediastinal erosion of the left 2nd, 3rd and 4th ribs. Dr. U.N. Das suggested that an excision biopsy and referred him to Dr. P.V. Satyanarayana, a Cardio Thoracic Surgeon.

        3. The operation was performed on 23rd October, 1990 and the tumour was excised. It appears that immediately after the surgery, the complainant developed acute paraplegia with a complete loss of control over the lower limbs, and some other related complications, which led to prolonged hospitalization and he was ultimately discharged from the hospital on 19th May, 1991 completely paralyzed with no change in his sensory deficit.

        4. On 11th May, 1991 the complainant’s father requested NIMS for a detailed report so that his son’s case could be discussed with experts from other developed countries‘ so as to improve his quality of life. No reply was, however, forthcoming despite a reminder.

        5. Completely frustrated, the complainant filed a complaint before the National Consumer Redressal Commission on 5th April, 1993 alleging utter and complete negligence on the part of Dr. P.V. Satyanarayana and the other attending doctors and also making NIMS vicariously liable and the State of Andhra Pradesh statutorily liable for the negligence of the doctors concerned.

        6. He accordingly claimed compensation of Rs.4,61,20,734.

        7. The Commission, in its order dated 16th February, 1999 concluded that there was negligence and deficiency of service on the part of the OPs in the different stages of the case.

        8. The Commission therefore directed OP1 to pay a total compensation of Rs.14 lakhs to the complainant and compensation of Rs.1.5 lakhs to the complainant’s parents jointly, within a period of 2 months from the date of receipts of the order failing which interest at the rate of 15 per cent per annum would become payable by OP1 until the date of payment. Costs of Rs.25,000/- was also imposed on OP1.

       Finding of the Court :

        Complete investigations prior to the actual operation had not been carried out. The attending doctors were seriously remiss in the conduct of the operation and it was on account of this negligence that the Paraplegia had set in.

       Result : Civil appeal No.3126 of 2000 is allowed. CA No.4119 of 1999 is dismissed.