JUGBIR SINGH vs Manoj Sharma

THE present appeal, filed by the appellant, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act"), is directed against order dated 1.2.2003, passed by District Forum (North-West), Shalimar Bagh, Delhi, in Complaint Case No. 4036/2001 - entitled Shri Jugbir Singh v. Dr. Manoj Sharma & Anr.

THE facts, relevant for the disposal of the present appeal, briefly stated, are that the appellant, Shri Jugbir Singh had filed a complaint under Section 12 of the Act before the District Forum alleging negligence on the part of the respondents. In the complaint, filed by the appellant, it was stated that the appellant was having pain in his left leg which used to increase as a result of continuous standing. It was stated that on 8.11.2000, the appellant contacted Dr. Manoj Sharma (respondent No. 1), who after examining him advised MRI Test which was got done by the appellant on 23.11.2000. It was stated that the appellant thereafter consulted respondent No. 1 who after examining the report of MRI advised operation and an assurance was given by the said respondent that after operation the appellant would be absolutely fit in a short duration of 7 days. It was stated that the appellant was operated upon by respondent No. 1 on 1.12.2000. It was stated that despite complying with all the directions and taking the prescribed medicines as per the advice of respondent No. 1, the condition of the appellant continued to deteriorate and there was severe pain in the spinal cord of the appellant as a result of which the appellant was not in a position even to sit and walk. It was stated that the appellant again consulted respondent No. 1 who gave two injections and some oral medicines. It was stated that the appellant on the advice of respondent No. 1, again got himself admitted where a second operation was performed on the appellant on 30.12.2000. It was stated that the appellant remained as an indoor patient in the hospital (respondent No. 2). It was stated that the appellant was discharged from the hospital (respondent No. 2) on 16.1.2001 and certain medicines were prescribed. Again the appellant was admitted in the Economy Ward of respondent No. 2 on the night falling between 13th and 14th February, 2001. It was stated that the appellant was advised a third operation and his family members were asked to deposit a sum of Rs. 25,000/-. It was stated that to save the appellant from the clutches of respondents, the father-in-law of the appellant got the appellant discharged from the hospital (respondent No. 2) on 15.2.2001. It was stated that thereafter the appellant was admitted in VIMHANS Hospital on 15.2.2001 itself. It was stated that the appellant remained as an indoor patient in Vimhans Hospital from 15.2.2001 to 21.2.2001 and as a result of treatment given by the doctors at VIMHANS Hospital, the condition of the appellant started improving without third operation. It was stated that due to deficiency in service on the part of respondent No. 1, the appellant developed severe pain in the vertebra disc and right leg. Alleging deficiency in service on the part of the respondents, the appellant in the complaint filed by him prayed that the respondents be directed to pay a total sum of Rs. 2,86,442/- towards the amount spent by him on consultation and treatment, cost of medicines, monetary loss due to leave without pay and compensation for (sic.) also claimed cost of litigation. The claim of the appellant in the District Forum was resisted by the respondents. In the detailed reply/written version, filed on behalf of the respondents, the respondents explained the details of diagnosis and the line of treatment adopted by them while treating the appellant. Specifically denying the allegation of negligence/deficiency in service, the respondents prayed for the dismissal of the complaint.

The learned District Forum vide impugned order has held that the appellant has failed to establish that there was any negligence or lack of due care, attention or caution on the part of the respondents in the operation, treatment and medicines prescribed by the respondents. On the basis of the above findings, the learned District Forum has dismissed the complaint, filed by the appellant, leaving the parties to bear their own costs.

FEELING aggrieved, the appellant has preferred the present appeal under Section 15 of the Act. We have heard the learned Counsel for the appellant at length on the question of admission of the present appeal and have also carefully gone through the documents/material on record. The case of the appellant in the complaint filed by him before the District Forum in nutshell related to the alleged deficiency/negligence on the part of the respondents. As per the case of the appellant due to the alleged negligence/deficiency in service on the part of respondent No. 1, the appellant alleged to have developed another disease, i.e., severe pain in the vertebra disc and right leg. As per settled law, the burden of proving the above fact was on the appellant. Their Lordships of the Hon''ble Supreme Court in case Achutrao Hari Bhavu Khodwa @ Ors. v. State of Maharashtra & Ors., 1996 (1) CLT 532=(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 v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC)=JT 1995 (8) SC 119, 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 defendant 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. If the above criterion is applied to the present case on the basis of material on record, it is apparent that while diagnosing and treating the appellant, the respondents have shown reasonable degree of skill and care and it cannot be stated that in doing so they had fallen short of the standard of reasonable medical care. The order being impugned in the present proceedings is a well-reasoned order which in the given facts, in our opinion, suffers from no infirmity so as to call for any interference by this Commission in exercise of its appellate powers. The present appeal, filed by the appellant is, therefore, devoid of substance. The same merits dismissal. Accordingly, the same is dismissed in limine with no order as to costs. Appeal dismissed in limine.