Bhiwani General And Eye Hospital vs RAMESH CHANDRA SHARMA

THIS appeal has been filed by the appellants against the order dated 23.7.1996 passed by the District Forum -I Jaipur in Complaint Case No. 380/93 by which the complaint of the respondent was partially allowed and Rs. 10,000 were ordered to be paid to the complainant -respondent as compensation and Rs. 1,000 as cost by the appellants.

IT arises in the following circumstances: That the respondent -complainant filed a complaint on 24.2.1993 before the District Forum -I Jaipur inter alia stating that the complainant used to deal in the work of welding and he had installed the machine of Lathe in his workshop. It was further stated by the complainant that on 22.12.1992 when he was doing the job in his workshop he suddenly felt pain and burning in his right eye and thereafter he rushed to the Bhiwani General and Eye Hospital (hereinafter referred to as ''appellant No. 1'') where he was examined by Dr. (Mrs.) Vijay Bhambani (hereinafter referred to as ''appellant No. 2'').

The further case of the complainant -respondent is that he was attended by appellant No. 2 and given medicines and he was advised to visit next day. It was further stated by the complainant -respondent that on 23.12.1992 he again visited the hospital of appellant No. 1 and he was examined again by appellant No. 2 and he was given medicines, etc. The further case of the complainant is that on the night of 23.12.1992 when he felt no relief from the treatment given by the appellant No. 2, therefore, on 24.12.1992 he again went to the hospital of appellant No. 1, then appellant No. 2 consulted Dr. Pran Bhambani (hereinafter referred to as ''appellant No. 3'') and he was given medicines of three days and the bandage from his eye was removed. It was further stated by the complainant that when the bandage of his eye was removed he found that he was not in a position to see, therefore, he went on 24.12.1992 to the K.C. Memorial Eye Hospital, C -Scheme, Jaipur where he was examined by Dr. Haricharan and he told him that because of wrong treatment of eye, he had lost the vision of his right eye.

It was further stated by the complainant -respondent that because of the wrong treatment and negligence on the part of the appellants he had to lose his right eye and thus he filed the complaint before the District Forum for claiming Rs. 95,000 in various heads.

A reply was filed by the respondents on 14.7.1993 and their case was that the complainant -respondent had suppressed material facts in his complaint as on 22.12.1992 when the complainant came to their hospital his eye had already damaged and there was a pus also in his eye and that had happened because of foreign body element like pieces of iron had entered into his eye. It was further replied by the respondents that at that time the foreign body element was removed and he was given proper treatment and thus there was no negligence on the part of the respondents. Hence, no case, complaint be dismissed.

It may be stated here that during the pendency of that complaint through order dated 30.11.1995 the District Forum ordered for formation of a Medical Board of Doctors of S.M.S. Hospital, Jaipur and there is no dispute on the point that in compliance of the order of the District Forum Medical Board gave its report on 28.2.1996.

After hearing both the parties, the learned District Forum allowed the complaint of the complainant -respondent in the manner as indicated above holding inter alia - (i) That is the fact when the complainant -respondent visited the hospital of the appellant on 22.12.1992 there was a foreign element (piece of iron) found in the eye of the respondent and because of that the infection in the eye resulting pus.

(ii) That in matters like the present case the burden of proving the fact that the appellants attended and gave proper medicines to the complainant -respondent and there was no negligence on their part was on them, but appellants had failed to prove that treatment which was given by them to complainant -respondent was proper one.

(iii)That since appellant No. 2 was having a degree of M.B.B.S. and not the post -graduate degree in Opthalmology, therefore she could not be regarded as an eye specialist.

(iv) That at the time when the complainant respondent was got examined on 22.12.1992 by appellant No. 2 she did not take any consultation with appellant No. 3.

(v) That the Board which was constituted by the order of the District Forum had given its report on 28.2.1996 holding that the right eye of the complainant -respondent was found defective vision due to corneal opacity.

(vi) That, therefore, appellant No. 2 when she gave treatment to complainant -respondent cannot be regarded as an eye specialist and was not competent to give treatment of eye.

(vii) That since the appellant No. 2 was not an eye specialist, therefore, instead of treating the complainant -respondent she should have not given treatment to complainant -respondent and by doing so negligence on the part of appellant No. 2 was found.

(viii) That even complainant -respondent was found negligent to some extent as he had suppressed the fact that he had any foreign element in his eye (piece of iron) when he was got medically examined by appellant No. 2.

(ix) That, therefore, if the complainant -respondent had lost his vision to some extent for that appellants are responsible specially appellant No. 2 who attended the complainant -respondent.

AGGRIEVED from the said order dated 23.7.1996 passed by the District Forum -I, Jaipur, this appeal has been filed by the appellants.

IN this appeal the following submissions have been made by the learned Counsel appearing for the appellants: (i) That when the District Forum had admitted in its order that the complainant -respondent had not come with clean hands and had come after suppressing some facts, therefore, awarding of compensation in such cases is wholly illegal.

(ii) That when after 22.12.1992 and 23.12.1992 taking treatment from the appellants, on 24.12.1992 the complainant respondent got the treatment from other doctors, therefore, it cannot be said that the treatment given by the appellants was not proper one. Hence complainant respondent had not able to establish the fact that he was not given proper treatment at the hands of appellants.

(iii) That the findings that a person holding a degree of M.B.B.S cannot be regarded as an expert for eye are erroneous one and it should be set aside.

(iv) That the District Forum had wrongly placed the burden of proving the necessary facts on appellants.

The learned Counsel appearing for the complainant respondent has supported the impugned order and has prayed that the findings recorded by the District Forum are in accordance with law. Hence appeal be dismissed.

WE have heard the learned Counsel appearing for the appellants as well as the complainant -respondent and gone through the entire materials available on record.

BEFORE proceeding further we must have a birds eyeview pertaining to negligence and medical negligence. ''Winfield has defined negligence as a tort which is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff. An act involving the above ingredients is a negligent act. It can very well be stated that negligence comprises, (a) Existence of legal duty; (b) Breach of legal duty; (c) Damage caused by the breach.

(a) Existence of legal duty - Whenever a person approaches another trusting him to possess certain skill, or special knowledge on a given problem and depends on him for service and dispensation of that skill, the second party is under an implied legal duty to exercise due diligence as is expected to act at least in such a manner as is expected in the ordinary course from his contemporaries. So it is not that the legal duty can only be contractual and not otherwise. Failure on the part of such a person to do something which was incumbent upon him to do so, that which would be just and reasonable tantamounts to negligence. Every time a patient visits a doctor for treatment of his ailment he does not enter into any written contract but there is a contract by implication and any lack of carelessness or proper care can make the erring doctor liable for breach of professional duty.

(b) Breach of legal duty - There is certainly a breach of legal duty if the person exercising the skill does something which an ordinary prudent man would not have done or fails to do that which an ordinary prudent man would have done in a similar situation. The standards are not supposed to be of the very high degree or of a very low degree but just the relative kind that is expected from an ordinary prudent man in the ordinary course of treatment.

(c) Damage caused by the breach - The wrong, injury occasioned by such a negligence is liable to be compensated in terms of money and the Courts apply the well settled principles for determination of the exact liquidated amount. In a suit for damages on account of negligence, the onus lies on the patient to prove that the doctor was negligent and the said negligence resulted in the injury which is complained to be compensated.

Medical Negligence - Basically, medical negligence means such negligence resulting from the failure on the part of the doctor to act in accordance with medical standards or vogue which are being practised by an ordinary and reasonably competent man practising the same art.''

''A branch of the civil wrongs is known as negligence. A sub -branch of this is medical negligence, which deals with situations in which a physician or surgeon or other member of the medical profession may have to pay compensation, if he has not exercised reasonable care. The degree of care to be exercised depends on the facts of each case. However, in general, it may be stated that the test is the standard of the ordinary skilled man, exercising and professing to have that special skill. If a medical man fails to measure up to that standard in any respect, he has been negligent and has to pay compensation to the person harmed by him.

Once a doctor accepts a patient, this principle becomes applicable, whether the doctor accepts fees or not, and whether the doctor is a private practitioner or a public servant, general practitioner or a specialist. A person who offers medical advice or treatment, implicit undertakes that he has the requisite skill and knowledge. Such a person owes to the patient certain duties, of which the following are important - (a) duty of care in deciding whether to take in a case; (b) duty of care in deciding what treatment to give and in diagnosis; (c) duty of care in administering the treatment; and (d) a duty of care in answering a question put to him by a patient when he knows that the patient intends to rely on his answer. There is a difference between a specialist and general practitioner. A person may be general practitioner but not specialist and not vice versa. A specialist is one from whom, in case of a contract, more skill can be demanded than from a general practitioner. In case of eye the person who holds the degrees of Master of Surgery can be regarded as a specialist but not the person who is a general practitioner.

''A breach of any of these duties will support a suit by the patient.''

Apart from the above a specialist in a particular branch is one from whom, in case of contract, more skill can be demanded than from a general practitioner.

TAKING the above legal preposition in mind of appellant No. 2 who was holding the degree of M.B.B.S. in no manner can be treated or regarded as an eye specialist. For becoming an eye specialist a degree of M.S. in Ophthalmology is must, therefore, the findings recorded by the District Forum that appellant No. 2 was not an eye specialist are liable to be confirmed one.

SIMPLY because appellant No. 2 might be treating the cases of ailment of eye for long period, but it would not make her an eye specialist in the eye of law. Therefore, the law laid down in AIR 1969 Supreme Court 128 would not be helpful to the learned Counsel for the appellants. It is the case of the appellants themselves that on 22.12.1992 when complainant respondent visited their hospital, some foreign element was in the eye of the complainant -respondent and there was a pus. Meaning thereby at that time the appellant No. 2 was legally duty -bound to consult an eye specialist and since she had not consulted appellant No. 3 on that day and even on 23.12.1992 a breach of legal duty is just found on her part.

SINCE by the treatment of the appellant No. 2 the condition of the eye of the complainant respondent further deteriorated, it clearly reflects that damage in the eye was occasioned by the negligence on the part of appellant No. 2.

IN the present case by proving the fact that complainant respondent was got medically examined by appellant No. 2 who was not a specialist in eye and by proving the fact that he was having some trouble, in such a case if at that time the complainant had not mentioned that some foreign element had come in his eye it would not take away the responsibility of due care and proper treatment which was to be discharged by appellant No. 2. Hence the findings that appellant No. 2 was negligent in giving the treatment to the complainant -respondent are liable to the confirmed. For the reasons mentioned above we come to the conclusion that the findings recorded by the District Forum are based on correct appreciation on record and we see no illegality or irregularity in that order.

SINCE no appeal has been filed by the complainant and since by the opinion of the Medical Board the fact that the complainant -respondent had lost his vision of right eye to some extent, the compensation which has been awarded by the District Forum cannot be said to be improper or unjust. Hence no interference is called for in that also.

FOR the reasons mentioned above, there is no merit in this appeal and the same deserves to be dismissed. Accordingly, in the result the appeal filed by the appellants is dismissed. Appeal dismissed.