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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member
Girishchandra V. Bhatt and Ors. —Appellants
versus
Sterling Hospital —Respondent
First Appeal No.2491 of 2017
(Against the Order dated 28/07/2017 in Complaint No. 76/2015 of the State Commission Gujarat)
Decided on 19.3.2018
Counsel for the Parties:
For the Appellants:Mr. Aditya Wadhwa, Advocate with Mr. Debopriyo Moulik, Advocate
IMPORTANT POINT
Expert witness plays an essential role in determining medical negligence.
Headnote:(A) Torts—Medical Negligence—Onus to prove medical negligence lies largely on complainant and this onus can be discharged by leading cogent evidence—Mere averment in a complaint by no stretch of imagination, be said to be evidence by which case of complainant can be said to be proved—It is obligation of complainant to provide facta probanda as well as facta probantia. (Para 16)
(B) Torts—Medical Negligence—Expert witness plays an essential role in determining medical negligence—Courts by and large rely on expert witness testimony to establish standards of care germane to a medical negligence case—Generally, purpose of expert witness is to describe standards of care relevant to a given case, identify any breaches in those standards, and if so noted, render an opinion as to whether those breaches are the most likely cause of injury—Expert witness is given more latitude.
Held: The expert witness plays an essential role in determining medical negligence and the courts by and large rely on expert witness testimony to establish the standards of care germane to a medical negligence case. Generally, the purpose of expert witness is to describe standards of care relevant to a given case, identify any breaches in those standards, and if so noted, render an opinion as to whether those breaches are the most likely cause of injury. The expert witness is given more latitude. The expert witness is allowed to compare the applicable standards of care with the facts of the case and interpret whether the evidence indicates a deviation from the standards of care. The medical expert also provides an opinion (within a reasonable degree of medical certainty) as to whether that breach in care is the most likely cause of the patient’s injury. The expert opinion will not carry any value, if it is without the expert’s explanation of the range of acceptable treatment modalities within the standard of care and interpretation of medical facts.
In my view the expert opinion in the instant case has failed to explain the elements of medical negligence. It is just a vague. It appears that, the expert is trying to favour the complainant and repeatedly making recommendation to the State Commission “To admit the complaint and decide in the interest of justice”; which is not a duty of an expert. Therefore, the expert opinion is not acceptable one as it has no evidentiary value. (Para 14)
(C) Consumer Protection Act, 1986—Section 12 (3) read with Section 18—Medical services—Medical negligence—Fracture—Death of patient—Complaint dismissed by State Commission—Deceased suffered multiple fractures in accident—Expert opinion in instant case has failed to explain elements of medical negligence—It is just vague—Expert is trying to favour complainant and repeatedly making recommendation to State Commission to admit complaint and decide in interest of justice which is not a duty of an expert—Expert opinion is not acceptable one as it has no evidentiary value—Deceased had suffered multiple fractures and was properly treated on emergency basis at OP hospital—Consumer complaint completely lacks facta probantia and ought to be dismissed on that ground alone—Appeal dismissed.
Held: Considering the sequence of events and on perusal of the medical record it is clear that the deceased had suffered multiple fractures and was properly treated on emergency basis at OP hospital. The discharge summary clearly shows the details. The active bleeding and haematoma was treated by transfusion of blood and blood products as needed. The patient was monitored in the ICU during hospitalisation but unfortunately suffered respiratory arrest. The doctors immediately performed intubation and the patient was put on ventilator. The ionotropic drugs were also started but later on the patient suffered cardiac arrest at 09:30 P.M. and CPR was given as per ACLS protocol but the patient was dead by 10:16 P.M.
It is settled law that the onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. In my view the present the Consumer Complaint completely lacks facta probantia and ought to be dismissed on that ground alone.
The Hon’ble Supreme Court in Kusum Sharma Vs. Batra Hosptial and Medical Research Centre, (2010) 3 SCC 480, has observed that:
“the normal human tendency is to pick fault whenever there is a death in the family for which the doctor cannot be made a scapegoat. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. Filing such complaints under the Consumer Protection Act against doctors on the rise and in many cases these being frivolous, the Hon’ble Supreme Court said “Courts have to be extremely careful to ensure that unnecessarily professionals are not harassed and (or else) they will not be able to carry out their professional duties without fear”.
On the basis of foregoing discussion I do not find any illegality or perversity in the well-reasoned order of the State Commission. Hence, the appeal is hereby dismissed in limine.
(Paras 15, 16 and 17)
Result: Appeal dismissed.
This appeal has been filed under Section 19(1)(a) of the Consumer Protection Act, 1986 (for short “the Act”) against the order dated 28-07-2017 passed by the Gujarat State Consumer Disputes Redressal Commission (for short “the State Commission) in Complaint No.CC/15/76 wherein the complaint was dismissed at admission stage.
2. The complainants’ (nos.1&2) son, Hitharth met with bike accident on 22-10-2013 at about 04:45 P.M., the truck run over Hitharth. Immediately he was admitted in Sterling Hospital (OP) at Rajkot. He was normal on admission with the exception of fractures. He was fully conscious for first two days without any major problems. All the reports were normal but thereafter his condition worsened and on 25-10-2010, he expired during treatment. Since the death of Hitharth had taken place solely due to negligence and carelessness in providing the treatment, the OP is solely responsible for the death of Hitharth. Therfore, alleging case of medical negligence complaint was filed before the State Consumer Disputes Redressal Commission, Gujarat (for short “the State Commission”).
3. The OP filed a written version and denied all the allegations regarding negligence during the treatment of Hitharth. The injured had suffered multiple bone fractures. The treatment was proper with due care but the death was due to cardio respiratory arrest. The doctors at OP hospital tried every effort to save the injured.
4. On the basis of pleadings and arguments the State Commission dismissed the complaint at admission stage under Section 12 (3) read with Section 18 of the Consumer Protection Act, 1986. Being aggrieved the complainant filed the instant appeal before this Commission.
5. At the admission stage I have heard the learned counsel for the appellant, he submitted that Mr. Hitharth suffered multiple fracture injury on 22-10-2013 at Rajkot and he was admitted to Sterling Hospital for the treatment of simple fracture injuries. He was treated in ICU. For the first two days his condition seemed normal, he was talking with relatives, all the vitals and reports including CT scan was normal. However, from 24/25-10-2013 his condition started deteriorating. The OP failed to provide proper treatment. The haemoglobin level of the patient was going down which was not managed properly and further the lung infection was not controlled. Due to lethargic, negligent and sub-standard treatment from the OP, Mr. Hitharth passed away. His Post-Mortem (PM) report was stage managed by the OP. It was stated that the cause of death as “cardio respiratory failure due to poly trauma and its complications”. It was a simple fracture which could not resulted into the death of the patient. Therefore, it was negligence on the part of the OP.
6. The counsel further submitted that the State Commission has totally ignored Expert opinion and dismissed the complaint without giving any findings on the Expert opinion; thus, it was against the law. He further submitted that there was no evidence to show the patient suffered DIC. The D-Diamer test showed abnormality which was indicative of fibrin degradation products. Thus, there were chances of clot formation and break down in the body. It was missed by OP. Even the OP did not care for low level of haemoglobin, albumin, etc.. The OP did not perform investigation properly; therefore, it was a deficiency and negligence during the treatment. The counsel further submitted that dismissal of complaint at admission stage will cause severe injustice to the complainant. For this submission he relied upon the judgment of Hon’ble Apex Court in the case of Dr. V. N. Srikhande Vs. Anita Sena Fernandes, 2011(1) SCC 53. The Court in paragraph 17 of the judgment held as below:
“17. We may hasten to add that the power conferred upon the Consumer Forums under Sections 12(3), 18 or 22 to reject the complaint at the stage of admission should not be exercised lightly because the Act has been enacted to provide for better protection o
