DEEPAK GOKARAN vs CHAIRMAN, MAHANT GURMUKH SINGH CHARITABLE HOSPITAL TRUST

SHRI Deepak Gokaran (for short ''the complainant'') has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act''), averring therein that the complainant''s minor son by name Master Ashutosh, aged nearly 3 years was admitted in Mahant Gurmukh Singh Charitable Hospital (for short ''O.P. No. 1'') on the night of 10.5.1994 at 10.55 p.m. as a case of acute tonsillitis. It is stated that the child patient was admitted in room No. 38 in the O.P. No. 1 hospital and was kept under the care of the team of Pediatricians (Dr. Anil Kalra and Dr. Sameer Gupta). It is stated that the child, after admission in the Hospital (O.P. No. 1), was advised by the attending doctors certain course of treatment which included ''Isolyte P Injectible drip'', which was supplied by the Hospital''s (O.P. No. 1) pharmacy. It is stated that within half-an-hour of the child being put on drip, the child experienced rigours and thereafter the drip was temporarily stopped. It is stated that when the child was again put on the same drip, again there was recurrence of rigours as a result of which the drip along with drip set was removed. It is stated that thereafter the same injectible drip was obtained by patient''s family from another chemist shop situated nearby Maharaja Agarsain Hospital and the child was again put on that drip. It is stated that for ascertaining the possibility of the existence of any contamination in the drip earlier injected, it was necessary for the Hospital (O.P. No. 1) to have forwarded the remaining fluid for chemical analysis but Hospital (O.P. No. 1) instead of following the above course of action, destroyed the bottle immediately as soon as the same was taken off obviously for the reason that its own pharmacy was involved in supplying defective stock.

IT is stated that on 13.5.1994 the consultant doctor prescribed medicine - ''Monocef - 1g'' twice daily. IT is alleged that the hospital pharmacist instead of supplying Monocef-1g supplied Inj. Omotex - 1g but issued the bill in the name of Inj. Monocef-1g. IT is alleged that the medicine as soon as received was administered to the patient by the staff of O.P. No. 1 without ensuring that the medicine supplied was the same as prescribed or the same was an exact equivalent under a different brand name. IT is stated that the family doctor of the complainant later on discovered on a call which was received from complainant''s regular Pediatrician that the medicine administered was not the same as prescribed and the quantity administered was also an adult dose, having been administered to a small child, aged only 3 years. IT is stated that on learning the above facts the complainant immediately contacted the consultant doctor at his residence and mentioned the above facts to him. IT is stated that on contacting, the consultant doctor reprimanded the complainant and the complainant was told by the consultant doctor to obtain the correct medicine for immediate administration to the patient. IT is stated that after about half an hour that consultant doctor also contacted the hospital and instructed the staff to defer administration of the medicine till he visited the patient in the following morning and in the meantime it was advised that the patient be given maximum quantity of water to flush out the incorrect medicine already injected. IT is stated that the resident doctor was also reprimanded for the lapse in the checking the correctness of the medicine and leaving administration of the same to the nursing staff. IT is stated that next morning the patient was prescribed medicine ''Monocef - 800 Mg'' twice daily. It is stated that the administration of medicine, other than the one prescribed which was issued by the hospital pharmacy on a bill in the name of ''Monocef-1g'' presumably was because of the reason that the hospital pharmacy did not have the correct medicine in stock. It is stated that the above act on the part of hospital pharmacy is against ethics more particularly when the patient''s relatives attending on him were not even informed or advised to obtain correct medicine from elsewhere. It is stated that correct medicine, as prescribed, was available in plenty at the chemist shop in the neighbouring area. It is stated that in fact the same was sheer callousness or greed on the part of hospital''s pharmacist not to lose chance of a few bucks as commission on the supply of costly medicine which the hospital (O.P. No. 1) might be earning on the sale of medicines.

It is alleged that the hospital (O.P. No. 1) has charged the complainant at exorbitant rates when the services provided were not even minimal as compared to any nursing home or a hospital inasmuch as even the staff employed by the Hospital (O.P. No. 1) did not consist of a resident doctor who may be available when needed. It is alleged that the staff and attendants in the hospital (O.P. No. 1) did not bother to follow the minimal routine procedures, the room services, stated to have been provided were not in working order and the essentials required for indoor patients and attendants had not been started. It is stated that the sole aim of the hospital (O.P. No. 1) was to augment the resources and reduce its expenditure at the cost of proper patient care.

ALLEGING deficiency in service on the part of hospital (O.P. No. 1) the complainant has prayed that damages of Rs. 5,00,000/- for the discomfort of complainant''s small child and mental agony of the child''s attendants be awarded. Complainant has also claimed the cost of incorrect/defective medicines administered to the patient together with room charges, cost of attendant and inconvenience caused due to the non-maintenance of the proper facilities as detailed in para 8, Clause (e) of the complaint. In all the complainant has claimed a sum of Rs. 5,08,376/- to be paid by the hospital (O.P. No. 1) for the deficiency in service. Initially the complaint was filed against the hospital (O.P. No. 1) but later on, on a request made by the A/Representative of the complainant the National Insurance Company Limited has been impleaded in the present proceedings as O.P. No. 2 vide order dated 24.2.1997.

THE claim of the complainant in the present proceedings is being resisted by both the opposite parties. O.P. No. 1 in its reply/written version has taken certain preliminary objections to the effect that the complaint, filed by the complainant, is not maintainable because the subject matter of the complaint pertains to working of the doctors which question is pending adjudication before the Hon''ble Supreme Court of India; that the provisions of the Act are not applicable in the case of the O.P.; that there is no negligence on the part of the hospital at any stage or any kind whatsoever; that the complaint is bad for non-joinder of M/s. National Insurance Company Limited; that the chemist shop is a separate establishment from where the medicine in question had been purchased and that the hospital (O.P. No. 1) does not come into picture at all; that the entire complaint, filed by the complainant, is vague and hypothetical and that Dr. Anil Kalra and Dr. Sameer Gupta were also necessary parties and, therefore, the present complaint, filed by the complaint, is bad for non-joinder of proper and necessary parties. On merits, while denying each and every allegation it is stated that there is no deficiency in service on the part of the O.P. and the complainant is not entitled to a single penny and the complaint, filed by the complainant deserves to be dismissed. Opposite party No. 2 (National Insurance Company Limited), has filed a separate reply/written version. In the reply/written version, filed on behalf of O.P. No. 2 (the National Insurance Company Limited), certain preliminary objections have been taken by the above said O.P. with regard to the maintainability of the complaint, filed by the complainant. On merits, while admitting the issuance of a "Professional Indemnity Insurance Policy" in the name of the hospital it is stated that there was no negligence on the part of the doctors of the O.P. hospital in treating the patient as per averments made in the complaint. It is stated that the complaint, filed by the complainant, deserves to be dismissed.

THE parties have adduced evidence in support of their respective contentions/pleas by means of affidavits. THE complainant Shri Deepak Gokaran has filed his own affidavit by way of evidence whereas on behalf of O.P. No. 1 an affidavit of Dr. S.P. Gupta, Hony. Director of the hospital (O.P. No. 1) has been filed. On behalf of O.P. No. 2 an affidavit of Shri S.K. Dhadwal, Manager, National Insurance Company Ltd., Regional Office, Jhandewalan, New Delhi has been filed.

WE have heard the learned Counsels for the parties at length and have also carefully gone through the documents/material on record. On the basis of the pleas taken by the parties, the contentions advanced at the Bar and the material placed on record, the following questions arise for our consideration in the present complaint : (1) Whether the complainant in the present complaint, is a ''consumer'' within the meaning of Section 2(1)(d)(ii) of the Act ? (2) Whether the opposite party No. 1 was rendering any ''service'' to the complainant within the meaning of Section 2(1)(o) of the Act ? (3) Whether in the given facts was there any ''deficiency in service'' (negligence) on the part of opposite party No. 1 within the meaning of Section 2(1)(g) of the Act ? and (4) Whether the complainant is entitled to any relief ? If so, to what extent and from which of the opposite parties. Question Nos. 1 and 2 :

Since the above mentioned questions are inter-connected, we would be discussing the same jointly. The term ''consumer'' has been defined in Section 2(1)(d) of the Act, and the same reads as under : " ''consumer'' means any person who- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user or such goods other than the person who buys such goods for consideration paid or promised or partly paid of partly promised, or under any system of deferred payment when such use is made with the approval of person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires a avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; Explanation.-For the purposes of Sub-clauses (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment."

On a bare perusal of the above provisions of the Act, it is apparent that the definition of the word "consumer", as defined in Clause (d) of Sub-section (1) of Section 2 of the Act, is of a wide sweep which also includes a person who hires or avails of any service for a consideration which has been paid or promised or partly paid or partly promised or under any system of deferred payment and also includes any beneficiary of such service. The above provisions of the Act, as contained in Section 2(1)(d) of the Act, came up for consideration before the Hon''ble Supreme Court in case of Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=(1994) 1 SCC 243, and Their Lordships of the Supreme Court in the above said case have held : "To begin with the Preamble of the Act which can afford useful assistance to ascertain the legislative intention, it was enacted, to provide for the protection of the interest of consumers. Use of the word ''protection'' furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a Preamble cannot control otherwise plain meaning of a provision. In fact, the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory... The word ''consumer'' is a comprehensive expression. It extends from a person who buys any commodity to consume either as eatable or otherwise from a shop, business, house, corporation, store, fair price shop to use of private or public services. In Oxford Dictionary a consumer is defined as a ''purchaser of goods or services''. In Black''s Law Dictionary it is explained to mean, ''one who consumes. Individuals who purchase, use, maintain and dispose of products and services. A member of that broad class of people who are affected by pricing policies, financing practices, quality of goods and services, credit reporting, debt collection, and other trade practices for which State and Federal Consumer Protection laws are enacted''. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx The Legislature has taken precaution not only to define ''complaint'', ''complainant'', ''consumer'', but even to mention in detail what would amount to unfair trade practices by giving an elaborate definition in Clause (r) and even to define ''defect'' and ''deficiency'' by Clauses (f) and (g) for which a consumer can approach the Commission. The Act thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchase of goods and in the larger sense of user of services."

AS already stated, the opposite party No. 1 in the written version inter alia has taken a preliminary objection that in the given facts, the opposite party (O.P. No. 1) was not rendering any ''service'' to the complainants within the meaning of Section 2(1)(o) of the Act. This very question also came up for consideration before the Hon''ble Supreme Court in case of Indian Medical ASsociation v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC)=AIR 1996 SC 550. In the above said case, it was inter alia pleaded before the Hon''ble Supreme Court that the medical practitioners belonged to medical profession and were subject to the disciplinary control of the Medical Council of India and/or State Medical Councils, constituted under the provisions of the Indian Medical Council Act and, therefore, were excluded from the ambit of the Act and the service rendered to a patient by a medical practitioner did not fall within the ambit and scope of ''service'' as defined in Section 2(1)(o) of the Act. Their Lordships of the Supreme Court, in the above landmark decision, while rejecting the plea taken by the appellants, held : "On the basis of the above discussions we are at the following conclusions- (1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), but way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ''service'' as defined in Section 2(1)(o) of the Act. (2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils, constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act. (3) A contract of ''personal service'' has to be distinguished from a ''contract for personal service''. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a ''contract of personal service''. Such service is service rendered under a ''contract for personal services'' and is not covered by exclusionary clause of the definition of ''service'' contained in Section 2(1)(o) of the Act. (4) The expression ''contract of personal service'' in Section 2(1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical services to the employer. The services rendered by a medical officer to his employer under the contract of employment would be outside the purview of ''service'' as defined in Section 2(1)(o) of the Act. (5) Services rendered free of charge by a medical practitioner attached to a hospital/Nursing Home or a medical officer employed in a hospital/Nursing Home where such services are rendered free of charge to everybody, would not be ''service'' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing Home would not alter the position. (6) Service rendered at a non-Government hospital/Nursing Home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service is outside the purview of the expression ''service'' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing Home would not alter the position. (7) Service rendered at a non-Government hospital/Nursing Home where charges are required to be paid by the person availing such services falls within the purview of the expression ''service'' as defined in Section 2(1)(o) of the Act. (8) Services rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression ''service'' as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service would also be ''service'' and the recipient a ''consumer'' under the Act. (9) Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression ''service'' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing Home would not alter the position. (10) Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ''service'' as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be ''service'' and the recipient a ''consumer'' under the Act. (11) Service rendered by a medical practitioner or hospital/Nursing Home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the Insurance Company and such service would fall within the ambit of ''service'' as defined in Section 2(1)(o) of the Act. (12) Similarly, where, as apart of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing him would not be free of charge and would constitute ''service'' under Section 2(1)(o) of the Act."

On the basis of material on record it is not in dispute that the Hospital (O.P. No. 1) is a non-governmental hospital where patients are treated on payment of fees. It is also not in dispute that the minor son of the complainant by name Ashutosh, aged only 3 years was admitted in the hospital (O.P. No. 1) as a case of acute tonsillitis on the night of 10.5.1994. It is also not in dispute that the above said minor son of the complainant was under the care and treatment of the pediatricians of O.P. No. 1. The receipt of consideration (fees) for the treatment of the son of the complainant is also not denied by O.P. No. 1. It is only stated in the reply/written version that the hospital (O.P. No. 1) has charged reasonable and prevailing charges for the treatment of the patient (son of the complainant).

THE contention advanced by the Indian Medical Association before the Hon''ble Supreme Court in case of Indian Medical Association (supra), to the effect that service rendered by a person belonging to medical profession did not fall within the ambit of the provisions of the Act and that the medical practitioners, who belonged to medical profession, were not covered by the provisions of the Act, was rejected by the Hon''ble Supreme Court in the said case and THEir Lordships in the above said decision of Indian Medical Association v. V.P. Shanta, while finally setting the above controversy at rest, have held : "It would thus appear that medical practitioners, though belonging to the medical profession, are not immune from a claim for damages on the ground of negligence. THE fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of Medical Council of India and/or State Medical Councils is no solace to the person who has suffered due to their negligence and the right of such person to seek redress is not affected."

During the course of arguments, one of the contentions advanced by the learned Counsel for O.P. No. 1 was that it was not the complainant who had availed of the services of O.P. No. 1 but it was his son and, therefore, the complainant cannot be treated as a ''complainant'' within the meaning of Section 2(1)(b) of the Act and that the present complaint, filed by the complainant, deserves to be dismissed on the above ground alone. In our opinion, the above contention advanced by the learned Counsel for O.P. No. 1 is also devoid of merit in view of the decision of Hon''ble Supreme Court in case of M/s. Spring Meadows Hospital & Anr. v. Harjol Ahluwalia & Anr., reported as I (1998) CPJ 1 (SC)=III (1998) SLT 684=AIR 1998 SC 1801. In the above said decision it has been held by Their Lordships of Hon''ble Supreme Court that the definition of the term ''consumer'' as contained in Section 2(1)(d)(ii) of the Act is wide enough and includes not only the person who actually hires or avails of services but also the ''beneficiary'' of such services other than the person who hires or avails of service. In the above said decision it has been held by Their Lordships of the Hon''ble Supreme Court that the child as well as both the parents of the child would be ''consumer'' within the meaning of Section 2(1)(d)(ii) of the Act and as such can claim compensation under the Act. From the narration of the above facts it is apparent that the complainant had availed of the services of O.P. No. 1 on payment of fees (consideration) for the treatment of his minor son Ashutosh aged only 3 years. The complainant being the father of said minor Ashutosh, in the given facts, decidedly is a ''beneficiary''. In the light of the provisions contained in the Act, law laid down by the Hon''ble Supreme Court in the above noted decisions and in the presence of the above facts, the correctness of which is not disputed by any of the parties, we have no hesitation in holding that the complainant is a ''consumer'' within the meaning of Section 2(1)(d)(ii) of the Act and the Hospital (O.P. No. 1) in the given facts was rendering service within the meaning of Section 2(1)(o) of the Act. Question No. 3 :

THE case of the complainant in the present complaint, in brief is that there was negligence on the part of the hospital (O.P. No. 1) and the doctors and the staff of O.P. No. 1 in giving treatment to his minor son Ashutosh who was admitted in the hospital (O.P. No. 1) on the night of 10.5.1994 as a case of acute tonsillitis were negligent in discharge of their obligations inasmuch as administering medicine other than the one prescribed which was issued by the pharmacy of the hospital (O.P. No. 1) and the other deficient services as detailed in para 7 of the complaint. On the other hand the case of O.P. No. 1 is that proper treatment was provided to the son of the complainant on reasonable charges and there was no deficiency in service/negligence on the part of the O.P. No. 1 in treating the son of the complainant.

BEFORE discussing the merits of the above aspect, we would like to first examine the legal position with regard to duties and obligations of a medical practitioner towards his patients. The civil liability of medical men towards their patients is, perhaps, compendiously stated in R.V. Bateman, (1925) 94 LJ KB 791, as follows : "If a person holds himself out as possessing special skill and knowledge and is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patients submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward.... The law requires a fair and reasonable standard of care and competence. This standard must be reached in all the matters above mentioned. If the patient''s death has been caused by the defendant''s indolence or carelessness, it will not avail to show that he had sufficient knowledge; nor will it avail to prove that he was diligent in attendance. If the patient has been killed by his gross ignorance and unskilfulness... As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man. As regards cases of alleged recklessness, juries are likely to distinguish between the qualified and the unqualified man. There may be recklessness in undertaking the treatment and recklessness in the conduct of it. It is, no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he knew, or should have known, to be beyond his powers, or for making his patient the subject of reckless experiment. Such cases are likely rare... (See Charlesworth on Negligence, Fifty Edn., Pages 181 and 182, para 272)."

(Underlioned by us)

Lord Denning M.R. rightly pointed out in Hucks v. Cole, (1968) 118 New Law Journal, 469, as follows: "A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of motor car. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best skill in the world, things sometimes went amiss in surgical operations or medical treatment. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure; or for an error of judgment. He was not liable for taking one choice out of two or for favouring one school rather than another. He was only liable when he fell below the standard of a reasonably competent practitioner in his field so much so that his conduct might be deserting of censure or inexcusable."

(Emphasis supplied)

IN Halsbury''s Laws of England, Volume 26, at page 17, the law is stated as under : "Negligence : duties owed to patient.-A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."

"Degree of skill and care required.-The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competent judged in the light of the particular circumstances of each case, is what the law requires; a person is not liable in negligence because someone else of better skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art although a body of adverse opinion also existed among medical men."

The principles so stated by Halsbury were affirmed by the Supreme Court in Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128 at p. 131. Taylor''s Medical Jurisprudence, 12th Edition, at page 55, states : "Doctors must be profoundly indebted to Lord Justice Denning for his summing up in the case of Hatcher v. Black. The details of the negligence alleged are of no importance to the principles involved, but the generalization made in the Judge''s summing up speech was vital to a fair and just appraisal of doctors'' responsibilities. He said, ''in a hospital, when a person was ill and came in for treatment, no matter what care was used, there was always a risk; and it would be wrong and bad law to say that simply because a mishap occurred the hospital and doctors were liable''.... ''The jury must not, therefore, find him negligent simply because one of the risks inherent in an operation actually took place, or because in a matter of opinion he made an error of judgment. They should find him guilty when he had fallen short of the standard of reasonable medical care, when he was deserving of censure''."

IT is also necessary to bear in mind the following warning given to Courts by Goddard L.J., as he then was, in C(1939) 2 KB 14 at p. 47 : "I would not for a moment attempt to define in vacuo the extent of a surgeon''s duty in an operation beyond saying that he must use reasonable care nor can I imagine anything more disastrous to the community than to leave it to a jury or to a Judge, if sitting alone, to lay down what it is proper to do in any particular case without the guidance of witnesses who are qualified to speak on the subject.

Moreover, it is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh to rule. In the law of negligence, the test whether the consequences were reasonably foreseeable is a criterion alike of culpability and of compensation, as held by he Privy Council in Overseas Taskship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd., (1961) 1 All. ER 404. In Lord Nathan''s Medical Negligence, 1957 Edition, the following observations of Lord President Clyde in Hunter v. Hanley, (1955) SLT 213, is relied upon at page 21 : "The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with reasonable care." At page 22 of the Book, it is stated : "The Medical man must, therefore, exercise reasonable skill and care, measured by the standard of what is reasonably to be expected from the ordinarily competent practitioner of his class. If he does so, he will have discharged his duty and cannot be held answerable even if the treatment has untoward results. For the medical man is not an insurer; he does not warrant that his treatment will succeed or that he will perform cure. Naturally he will not be liable if, by reason of some peculiarity in the frame or constitution of a patient which was not reasonably to be anticipated, a treatment which, in ordinary circumstances, would be sound has unforeseen results. But will not even be liable for every slip or accident. The standard of care which the law requires is not insurance against accidental slips. It is such a degree of care as a normally skilful member of the profession may reasonably be expected to exercise in the actual circumstances of the case in question. It is not every slip or mistake which imports negligence."

THEIR Lordships of the Hon''ble Supreme Court in case Achutrao Hari Bhavu Khodwa & Ors. v. State of Maharashtra & Ors., I (1996) CLT 532 (SC)=(1996) 2 SCC 634, while placing reliance on earlier decisions of the Hon''ble Supreme Court, including the decision in the case of Indian Medical Association (supra), have held: "The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."

(Emphasis supplied)

THUS, in order to decide whether negligence is established in any particular case, the alleged act or omission or course of conduct, complained of, must be judged not by ideal standards nor in the abstract but against the background of the circumstances in which the treatment in question was given and the true test for establishing negligence on the part of a doctor is as to whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with reasonable care. Merely because a medical procedure fails, it cannot be stated that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden of proving the same rests upon the person who asserts it. The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage unless it is not done with proper care and skill. There is no question of warranty, undertaking or perfection of a skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising the ordinary degree of professional skill. As per settled law a doctor charged with negligence, can clear himself if he shows that he acted in accordance with the general and approved practice. It is not required in discharge of his duty of care that he should use the highest degree of skill, since they may never be acquired. Even deviation from normal professional practice is not necessarily in all cases evidence of negligence. However, the fact remains that as per settled legal position, as explained above, a doctor while treating his patient is expected to take reasonable care/precaution and in doing so it is the test of a reasonable man in normal circumstances which has to be applied.

If the above criterion is applied to the present case, the position is that as regards the allegation of administering incorrect medicine, other than the one prescribed, the stand taken by O.P. No. 1 is that the medicine in question was purchased by the complainant himself from the pharmacy located in the hospital premises at his own will and that there was no compulsion for the complainant to have purchased the medicine from that very pharmacy. It is contended that the complainant could have purchased the medicine from any other chemist shop other than the pharmacy located in the premises of the hospital. It was further contended that O.P. No. 1 has no control over the pharmacy located in the premises of the hospital (O.P. No. 1).

ON the basis of material on record it is also not in dispute that the doctor on duty at the hospital (O.P. No. 1) had prescribed ''Monocef-1g'' injection to be given to the patient child where as the injection supplied by the pharmacy of O.P. No. 1 on payment to the complainant was not ''Monocef-1g'' but ''Omatex-1g'', which was administered to the patient by the doctors on duty at the Hospital (O.P. No. 1). Thus, the fact remains that admittedly the medicine administered was not the same as prescribed. It is stated in the complaint that on being brought the above facts to the notice of the consultant doctor by the complainant the consultant doctor reprimanded the complainant and the complainant was told to obtain the correct medicine immediately for being administered to the patient. It was also stated that the consultant doctor not only reprimanded the complainant but also reprimanded the resident doctor of O.P. No. 1 on duty for the lapse in not checking the correctness of the medicine and leaving the administration of the same to the nursing staff. Though in the reply filed on behalf of O.P. No. 1 that above allegation has been denied but no affidavit of that resident doctor of O.P. No. 1 stated to be on duty on that date has been filed denying the above specific allegation of the complainant. In the presence of the above facts, it cannot be stated that there was no negligence on the part of the staff of O.P. No. 1 in treating the son of the complainant, admitted in the hospital of O.P. No. 1. As regards the contention advanced by the learned Counsel for O.P. 1 that for the supply of medicine, other than the one prescribed, by the pharmacy located in the premises of O.P. No. 1, O.P. No. 1 cannot be held responsible, the same, in our opinion, is also devoid of merit because of the fact that the pharmacy which has supplied the medicine other than the one prescribed, is located in the premises of the hospital and it is a matter of common knowledge that in the hope of having genuine medicine the patient or the persons looking after the patient usually approach the pharmacy which is located in the hospital premises itself because they have a belief that the medicine supplied to them from that pharmacy would be correct and genuine. Secondly, the chemist in the pharmacy should have explained to the complainant that the prescribed medicine was not available with him and that the medicine being given in place of the prescribed medicine was a proper substitute belonging to the same pharmacological group. Moreover, even if the pharmacy had supplied the medicine other than the prescribed one, it was the bounden duty of the doctor on duty at O.P. No. 1 to have ensured that the medicine being administered to the patient was the one prescribed and if any alternative was being given the same was proper and safe alternative which unfortunately does not appear to have been followed in the present case and for the above lapse on the part of its staff, O.P. No. 1 cannot escape liability. In view of the above discussion we have no hesitation in holding that, in the given facts, there was decidedly deficiency in service (negligence) on the part of O.P. No. 1 in treating the son of the complaint. Question No. 4

THE complainant, in the complaint, filed by him, has claimed a compensation of Rs. 5,08,376/- as detailed in para 8 of the complaint. On a perusal of the contents of this para it is apparent that the cost of incorrect/defective medicines stated to have been administered to the patient has been shown at Rs. 376/- only. Room charges for the prolongation of the period of stay have been claimed to the extent of Rs. 1,500/- @ Rs. 500/- per day. Rest of the amount has been claimed by the complainant on account of compensation but no details thereof have been given. Though the complainant has not given any details in respect of the amount claimed on account of compensation/damages yet the fact remains that on account of negligence on the part of O.P. No. 1 decidedly some harassment/inconvenience must have been caused to the complainant for which the complainant deserves to be compensated suitably. In our opinion, in all an amount of Rs. 10,000/-, on account of compensation including the costs of medicines and room charges to the complainant would meet the ends of justice. In view of the position explained above, it is directed that O.P. No. 1 shall pay a sum of Rs. 10,000/- only to the complainant as compensation, cost of medicines, room charges, etc., together with Rs. 5,000/- by way of costs. As regards O.P. No. 2, we are not saddling O.P. No. 2 with any liability in the present proceedings but it would be open to O.P. No. 1 to claim the above amount from O.P. No. 2 in terms of the insurance policy as O.P. No. 1 may be advised. The above amount of compensation and costs, awarded by us be paid by O.P. No. 1 to the complainant within 30 days from the date of receipt of this order failing which the same shall carry interest @ 12% per annum from the date of the order till actual payment. The complaint, filed by the complainant, stands disposed of in above terms. Complaint allowed.