IMPORTANT POINT
Concept of negligence differs in civil and criminal law.

ORDER

Adarsh Kumar Goel, J

These appeals arise out of order of the National Consumer Disputes Redressal Commission (NCDRC) dated 12.09.2007 in First Appeal Nos.44 of 2006, 462 of 2005 and 463 of 2005 dismissing the complaint of the appellant (now represented by legal heirs) by reversing the order of the State Commission whereby compensation was awarded to him for medical negligence, resulting in death of his wife Bijoy Sinha Roy.(‘the deceased’).

2. The deceased had some menstrual problem in June, 1993. She consulted Dr. Bishwanath Das, respondent No.1, a Gynecologist on advise of her family physician, Dr. Pransankar Shah. It was found that she had multiple fibroids of varying sizes in uterus. She was advised to undergo Hysterectomy. After about five months, she had severe bleeding and was advised emergency Hysterectomy at Ashutosh Nursing Home. She was also suffering from high blood pressure and her hemoglobin was around 7 gm% which indicated that she was anemic. The treatment was given for the said problems but without much success. Finally, operation was conducted on 01.12.1993 at about 8.45 A.M. She did not regain consciousness and since the Nursing Home did not have the ICU facility, she was shifted at 2.15 PM to Repose Nursing Home and thereafter to SSKM Hospital where she died on 17th January, 1994.

3. The appellant filed a complaint before the State Commission on 16th June, 1994. The appellant’s case was two fold. Firstly, the decision to perform surgery without first controlling blood pressure and hemoglobin amounted to medical negligence. The surgery was not an emergency but a planned one and conducted six months after the disease first surfaced. Secondly, having regard to the forceable complications, the decision to perform surgery at a nursing home which did not have the ICU for post operative needs also amounted to medical negligence.

4. The opposite parties contested the complaint. Their plea was that in the given situation, the surgeon was entitled to make a choice and to take the risk. If it was not possible to stop the bleeding without performing the surgery, the surgeon rightly decided to do so. This decision cannot be held to be medical negligence. As regards the forcibility of risk in performing surgery at a nursing home which did not have ICU even when better places were available nearby, no specific reply was given.

5. Since the second aspect has been pressed more seriously, it may be appropriate to quote the pleadings in this regard:

“That Dr. Biswanath Das arranged and selected Ashutosh Nursing Home (Manimala Matri Mandir) as the place of operation of the complainant’s wife and thereby directed the complainant to make necessary arrangements at the Ashutosh Nursing Home for operating on the wife of the complainant, knowing fully well that the Ashutosh Nursing Home (Manimala Matri Mandir) did not have the proper facilities to cope with the post operative emergency situation of a patient. On 1st December, 1993, the condition of the wife of the complainant deteriorated to such an extent that there was urgent need to transfer her to the Intensive Unit and keep her under observation. But when the complainant requested Dr. P.K. Mukherjee, the proprietor of Ashutosh Nursing Home (Manimala Matri Mandir) to transfer the wife of the complainant to the Intensive Therapy Unit he was shocked to learn that there was no ITU facilities because at the time of admission Dr. Mukherjee had categorically stated to the complainant that all the best medical facilities would be provided which in fact was not so.

Wherefore the aforesaid act on the part of Dr. Biswanath Das in insisting on land selecting Ashutosh Nursing Home (Manimala Matri Mandir) for operating on the complainant’s wife is a sheer act of professional and monetary greed in order to procure his commission from the Proprietor of the said Nursing Home in lieu of admitting patients. This fact also aggravates the willful, rash, negligence and deliberate act on the part o