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JAMMU & KASHMIR STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, SRINAGAR
Hon’ble Mr. Justice M.Y. Kawoosa
President & Mrs. Jameela Bashir, Member
AFROZA—Appellant
versus
DR. SALEEMA BANO—Respondent
Appeal No. 64 of 2002—Decided on 11.8.2003
For the disposal of this appeal it is necessary to make it public that the medical negligence is not to be treated as an ordinary negligence. Medical negligence must patently look to be so and strict proof is warranted for such negligence. For ipsi dixit allegations against a doctor before this Commission or the Forum as the case may be is not justifiable to hold doctors responsible for medical negligence and to award the compensation.
It is candidly clear from the law held by the Apex Court that the doctor should not be made easy target for committing negligence but at the same time if it is proved to the hilt that there is negligence of a doctor who has played with the life of the patient he is to be dealt with strictly. Here in this case facts show that there is no nexus between the death of the child in womb and the treatment afforded by the O.P. doctor it is an admitted position that the complainant has visited the private clinic of the O.P. 3 or 4 times. First visit she has made to the doctor on 28.6.1996 and last visit she has paid to the doctor on 24.11.1996. On both the dates the patient was examined and the medicine was advised. Patient was admitted in the hospital on 11.1.1997 under MRD No. 283285 and the appellant remained in the hospital till 19.1.1997. During this period she was examined by various doctors including Dr. Rizwana, Dr. Nighat, Dr. Parveen Nafae, Dr. Salima, Dr. Mushtaq and Dr. Tabasum. It is also established from 24.11.1996 to 11.1.1997 she never visited the O.P. in his private clinic. Till the last visit patient was quite alright and admittedly the baby was alive. So we cannot even remotedly imagine that there was negligence of O.P. in handling the patient.
Appellant has alleged that baby was dead when the patient was admitted in the hospital i.e., 11.1.1997. This is controverted by the hospital record. Hospital record has been called. It was examined and from this it is abundantly clear that foetus was alive in the Lall Ded Hospital on the date of admission till 17.1.1997. So the allegation of appellant that the baby was dead on the date of admission is contrary to the hospital record and is not thus acceptable. Not only this D.F. has examined the expert witness DR. Farhat Hamid who is Professor and Head of the Department of Gynaecology. She has categorically deposed that the pregnancy was 34 weeks old. Blood pressure was fairly high. Baby in the womb was alive. She has categorically deposed that the baby lived till 17th January and has opined that Dr. Saleema has not been negligent in dealing with the patient. We need not exhort much in this case when it is proved that the patient has visited the O.P.s private clinic lastly on 24.11.1996 and the patient was admitted in Lall Ded Hospital on 11.1.1997 after 47 days when she was seen by the O.P. at her private clinic and even after she was admitted the baby was alive till 17.1.1997. For these reasons, therefore, we see that this appeal has no legs to stand upon and has thus no force which is dismissed. This was a fit case for awarding costs to the O.P. but the appellant/complainant having lost his baby so we do not deem it fit to order for any costs on humanitarian basis.
Mr. Justice M.Y. Kawoosa, President—This appeal is directed against the order dated 24.6.2002 passed by the DF by virtue of which complaint of the appellant has been dismissed on the ground that no medical negligence has been proved towards the appellant/complainant.
2. Briefly stated the case of appellant Afroza is that she was having pregnancy so she hired the services of Dr. Saleema on payment of fees. Respondent was negligent in her treatment. She prescribed drugs which raised blood pressure of the appellant and caused death to the inborn baby in mother’s womb. Complainant was admitted in Lall Ded Hospital. Complainant has prayed for compensation for the negligence committed by the appellant. Respondent resisted the complaint on the ground that the complainant was admitted in Lall Ded Hospital under MRD No. 283285 where baby died. There is no negligence on the part of the respondent at all. Even if for the sake of arguments any sort of negligence was there that could have been presumed to have committed in the Hospital where the services are free. DF on the basis of evidence recorded, on the basis of hospital record and the evidence of expert came to the conclusion that there was no negligence at all so the case was dismissed.
3. Heard learned Counsel for the parties. We have perused the whole record and have given thoughtful consideration to the arguments advanced before us.
4. For the disposal of this appeal it is necessary to make it public that the medical negligence is not to be treated as an ordinary negligence. Medical negligence must patently look to be so and strict proof is warranted for such negligence. For ipsi dixit allegations against a doctor before this Commission or the Forum as the case may be is not justifiable to hold doctors responsible for medical negligence and to award the compensation.
5. There is catena of case law from the Apex Court which fortifies our view that the medical negligence needs a strict proof. Apex Court in M/s. Spring Meadows Hospital and Another v. Harjoi Ahluwalia through K.S. Ahluwalia and Another, AIR 1998 S.C. 1801, has held as under:
“The relationship between the doctor and the patient is not always equally balance. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally to a sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner. It is a great mistake to think that the doctors and hospitals are easy targets for the dissatisfied patients. It is indeed very difficult to raise an action of negligence. Not only there are practical difficulties in linking the injury sustained with the medical treatment but also it is still more difficult to establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer expenses of bringing a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country. With the emergence of Consumer Protection Act, no doubt in some cases patients have been able to establish the negligence of the doctors rendering service and in taking compensation thereof but the same is very few in number. In recent days there has been increasing pressure on hospital facilities, falling standards of professional competence and in addition to all, the very increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence. That apart there has been growing awareness in the public mind to being the negligence of such professional doctors to light. Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In th
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