Jagnarayan Lal vs Dr. Girija Tewari

PETITIONER herein, who was the complainant before the District Consumer Disputes Redressal Forum, Buxar, Bihar (hereinafter referred to as the District Forum'' for short), has filed the present Reivion Petition against order dated 7.12.2005 in Appeal No. 662 of 2004 passed by the State Consumer Disputes Redressal Commission, Patna, Bihar (hereinafter referred to as the State Commission'' for short) whereby the State Commission has allowed the Appeal and set aside the Order of the District Forum. The District Forum, in its Order, had held the respondent to be guilty of medical negligence and deficient in service and has awarded compensation of Rs. 5,00,000.

BRIEFLY stated, the facts of the case are:

CASE of the complainant is that wife of his younger brother, viz., Kiran Srivastava, was 4 months pregnant. She was taken to the clinic of the respondent for treatment on 21.12.2001 and the respondent prescribed medicines to her since 22.12.2001. It was alleged that on 13.2.2002, the patient started bleeding and, on 14.2.2002, she was taken to the clinic of the respondent, who after examination, advised ultrasound which was done. Petitioner showed ultrasound report to the respondent, who, after examining the same, prescribed some medicines but without any relief and, thereafter, the patient was moved to Patna where she was examined by Dr. (Smt.) Nilam Jha, who admitted the patient in her clinic and, after examination, declared that the child in the womb has died 10 days ago and the life of the patient was in danger. Dr. Jha advised for immediate operation, which was done by her to save the life of the patient. The dead foetus was removed. It was alleged in the complaint that there was negligence and deficiency on the part of the respondent in giving treatment to the patient. That after examining ultrasound report, the Doctor prescribed medicines, although, from the ultrasound, it was clear that the child had already died in the womb. That either she could not understand the ultrasound report or in a negligent way, she did not care to give immediate treatment to the patient which was urgent in such cases and only prescribed medicines which were of no use and condition of patient further deteriorated. That when she was taken to Patna, the lady Doctor at Patna, after examining the ultrasound report, declared that the child had died 10 days back and, to save the life of the patient, it was essential to terminate the pregnancy immediately. Under the above circumstances, being aggrieved, the complainant filed the complaint before District Forum. After service of notice, respondent appeared and filed its Written Objections stating that she had not charged any fees from the complainant as the patient was known to her and, because she had not charged any fees, the patient was not a consumer'' under Section 2(1)(d) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act'' for short). That she is a qualified lady Doctor having long experience and she had examined the patient and prescribed medicines like iron, calcium and protein, which is usually prescribed to a pregnant patient to supplement her diet. On 14.2.2002, the patient had complained about bleeding for the first time and, therefore, she advised her for ultrasound and also prescribed some medicines for safety of foetus and also of the patient. That in the ultrasound report, there was no clear sign about the miscarriage of the foetus in the womb and so she suggested the patient to wait for 2 days but thereafter the patient did not come to her. That the patient was taken to Patna where she was operated upon by Dr. Jha. That the patient did not follow her advice. That she had prescribed only those medicines which are advised to the pregnant ladies. According to the medical jurisprudence, if a child dies and remains in the womb even for a month, there is no adverse effect to the health of the mother. That the allegation of negligence on the part of the respondent was without substance. That she advised the medicines on the basis of the ultrasound report and on her clinical examination. That in the ultrasound report there was no clear indication that the child had died in the womb or any immediate operation was needed. She adopted the line of treatment which is prescribed treatment under the medical science. That it is a different matter that some other Doctor adopted some other line of treatment but that does not prove her negligence in giving treatment to the patient.

DISTRICT Forum, after hearing both the parties, held that the respondent was negligent in the discharge of her duties and awarded compensation of Rs. 5,00,000 to the complainant against which an Appeal was filed by the respondent in the State Commission. The State Commission, after detailed examination, reversed the Order passed by the District Forum.

COUNSEL for the petitioner has been heard at length. Counsel, who all along appeared for the respondent, has not appeared and, therefore, respondent is ordered to be proceeded ex parte.

ONUS to prove medical negligence is on the complainant. It is well established by now by various judgments of Hon''ble the Supreme Court of India that to prove a case of deficiency in service or negligence on the part of the treating Doctor within the meaning of Section 2(l)(g) of the Act, a heavy duty is cast on the complainant who alleges such negligence to prove it by adducing expert medical evidence because a charge of professional negligence against a medical man stood on a different footing to a charge of negligence against the driver of a motor car. In the present case, admittedly, no expert evidence has been produced.

HON ''ble Supreme Court in Jacob Mathew (Dr.) v. State of Punjab and Anr., reported in III (2005) CPJ 9 (SC)=III (2005) CCR 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=(2005) 6 SCC 1, after reviewing the entire case law, held that the burden of proof was correspondingly greater in the case of Doctors as it affects their professional status and reputation. A Doctor cannot be held negligent only because he had adopted one line of treatment than the one, which could have been adopted. A Doctor can be held liable only if his conduct fell below the standard of a reasonably competent practitioner in his field.

NEGLIGENCE in giving the treatment should have been proved by leading expert evidence. Failing to do so has to be held against the petitioner/complainant. Hon''ble the Supreme Court of India in paragraph 22 of its judgment in Jacob Mathew''s case, held as under: "In the opinion of Lord Denning, as expressed in Hucks v. Cole, [1968] 118 New LJ 469, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."

IN the absence of any expert evidence, it cannot be held that the respondent was guilty of medical negligence. The State Commission, in its order, has recorded the following findings of fact thereby holding that the respondent is not guilty of any medical negligence, with which we agree: "7. It was submitted on behalf of the appellant that she has perused the ultrasound report dated 14.2.2002 of the patient where under the clear impression it is mentioned that "cardiac activity could not be recorded at the time of scanning IUD - In the column advice rescan, if bleeding stops, after seven days. Therefore, from this report it was not clear both to the radiologist and to her whether the child was alive or dead. It happened in many cases that at the time of sonography cardiac activity may not be recorded for many reasons. Therefore, the doctor has put three signs of interrogation after seeing the sonography plate and he was not sure that the child is dead. Therefore, he advised another sonography after seven days if the bleeding stops. On this basis of this report or on clinical examination the appellant thought that for the present she should be provided medicine in order to check her bleeding and to save her life which she did and it is one of the accepted norms of treatment under the medical science. It is not always advisable to perform operation under such condition because that supposed to a last measure when no other measure is supposed to give relief. In the instant case on the basis of the report of sonography it was desirable to give her some medicine and to watch her for two days which has been void on behalf of the complainant. Therefore, no amount of deficiency or negligence is attributed against her line of treatment. It is altogether different matter that when she went to Patna the lady doctor thought it desirable to perform operation. That is another line of treatment which was adopted by the lady doctor at Patna. Under the medical science for the same problem there are more line of treatment and if a doctor adopts one line of treatment under the bona fide believe and if the result is not good even then he or she will not be held responsible or will be held negligence or deficient in his/her line of treatment or in his/her duty. From the complaint it is clear that the complainant has alleged that after seeing the report of the ultrasound the medicine prescribed by the doctor was a negligent act. This is altogether a personal view of the complainant and not substantiated from any expert medical report or expert evidence. There is no evidence on record much the less expert evidence to show or to prove that line adopted by the appellant after seeing the ultrasound report was not approved under the medical norms and she treated negligently. This is altogether own imagination of the complainant in order to put pressure on appellant to extract money. In appeal the photocopy of the prescription of Dr. Nilam Jha of Patna has been annexed dated 17.2.2002 and 18.2.2002 in which it is mentioned that the pregnant lady when she was brought before her she was bleeding. She has advised some medicine and in the prescription dated 18.2.2002 also it is mentioned that the patient was bleeding, D/F done and she advised medicine. In both these prescriptions it is not mentioned that earlier line of treatment adopted by the appellant at Buxar was wrong or due to her wrong advice any harm was done to the patient or to the child in the womb. She had adopted the line of treatment which she thought proper under such circumstances after the examination of the patient and the report of the ultrasound."

IN the present case, respondent had adopted the line of treatment, which she thought proper under the circumstances after examining the report of ultrasound. Simply because the other Doctor, Dr. (Smt.) Nilam Jha adopted another line of treatment, does not prove that the respondent was guilty of medical negligence.

AS has been held in Jacob Mathew''s case (supra), the medical practitioner cannot be held liable simply because things went wrong because of an error in judgment in choosing a reasonable course of treatment in preference to another. The medical practitioner can be held liable only if his conduct fell below the standard of a reasonably competent practitioner in his field. No evidence has been produced to show that conduct of the respondent fell below to that of the standard of a reasonably competent practitioner in his field. For the reasons stated above, we do not find any merit in this Revision Petition and dismiss the same, leaving the parties to bear their own costs.