2010(3) CPR 101 (SC)
SUPREME COURT OF INDIA
G.S. Singhvi and Ashok Kumar Ganguly, JJ.
V. Kishan Rao —Appellant
versus
Nikhil Super Speciality Hospital —Respondent
Civil Appeal No. 2641 of 2010
[Arising out of SLP (C) No. 15084 of 2009]
Decided on 8.3.2010

IMPORTANT POINT
In cases of gross medical negligence the principle of res ipsa loquitor can be applied. Before the consumer for a if any of the parties wants to adduce expert evidences the members of the for a by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case.

Headnote:(i) Consumer Protection Act, 1986—Sections 2 ad 14—Evidence Act, 1872—Section 45—Medical negligence—Test of —Patient suffering from fever, complaining of chill was admitted in respondent hospital—Allegations that the patient was not responding to the medicine given by opposite party No.1—Smear for malarial parasite was positive and widal test conducted for typhoid was found negative—However, the patient was treated for typhoid and not for malaria—When condition of the patient worsened critically, she was sent to another hospital in a very critical condition with pupils dilated—District Forum allowed complaint holding that there was negligence on part of respondent 1 and the complainant was entitled for refund of Rs. 10,000 and compensation of Rs. 2,00,000—Appeal—State Consumer Commission held that the complainant failed to establish any negligence on part of the hospital authorities—State Commission stated that there was also no expert opinion to state that the line of treatment adopted by the hospital was wrong—Whether expert evidence was necessary in such a case—Held, No.

       Held: In this case the State Forum has not held that complicated issues relating to medical treatment have been raised. It is not a case of complicated surgery or a case of transplant of limbs and organs in human body. It is a case of wrong treatment inasmuch as the patient was not treated for malaria when the complaint is of intermittent fever and chill. Instead the respondent No.1 treated the patient for typhoid and as a result of which the condition of the patient deteriorated. When the condition became very-very critical the patient was removed to Yashoda Hospital but patient could not be revived.

       In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.

       In the instant case, RW1 has admitted in his evidence that the patient was not treated for malaria. Of course evidence shows that of the several injections given to the patient, only one was of Lariago. Apart from Lariago, several other injections were also administered on the patient. Lariago may be one injection for treating malaria but the finding of Yashoda hospital which has been extracted above shows that smear for malarial parasite was positive. There is thus a definite indication of malaria, but so far as Widal test was conducted for Typhoid it was found negative. Even in such a situation the patient was treated for Typhoid and not for malaria and when the condition of the patient worsened critically, she was sent to Yashoda Hospital in a very critical condition with no pulse, no BP and in an unconscious state with pupils dilated. As a result of which the patient had to be put on a ventilator.

       We do not think that in this case, expert evidence was necessary to prove medical negligence. (Paras 12 to 15)

        (ii) Consumer Protection Act, 1986—Section 14—Medical negligence—Expert evidence—Necessity of—In complicated cases which require recording of evidence of expert, the complainant may be asked to approach the civil court for appropriate relief—It has to be left to the discretion of Commission to examine experts if required in an appropriate manner.

       Held: It is clear from the statement of objects and reasons of the Act that it is to provide a forum for speedy and simple redressal of consumer disputes. Such avowed legislative purpose cannot be either defeated or diluted by superimposing a requirement of having expert evidence in all cases of medical negligence regardless of factual requirement of the case. If that is done the efficacy of remedy under the Act will be substantially curtailed and in many cases the remedy will become illusory to the common man. (Para 42)

       In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res ) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. (Para 47)

       This Court however makes it clear that before the Consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other. (Para 54)