RAJINDER SINGH vs BATRA HOSPITAL AND MEDICAL RESEARCH CENTRE

SHRI Rajinder Singh, the complainant, has filed the present complaint, alleging deficiency in service (negligence) on the part of opposite party Nos. 1 and 2 and claiming damages of Rs. 15 lakhs. The case of the complainant, in brief, is that the complainant is a Civil Nazir in the District Courts at Narnaul (Haryana). He was suffering from pain in the neck and spinal cord, and for the above ailment, in December, 1992, he had undergone MRI Scan of the Spinal Cord at the GMR Institute of Imaging and Research MRI Scan Centre, 35 -B Pusa Road, New Delhi. Thereafter, the complainant was referred to Batra Hospital, New Delhi, for specialised consultation and treatment. It is stated that on 2nd December, 1993, the complainant visited Batra Hospital (opposite party No. 1), where he was examined by Dr. H.N. Aggarwal (opposite Party No. 2), who after examination, assured the complainant that the complainant would be alright after a minor operation in the neck. It is stated that on the above assurance and advise of Dr. H.N. Aggarwal (opposite party No. 2), the complainant got himself admitted in Batra Hospital (opposite party No. 1) on 3rd December, 1992, where he was subjected to several tests. The allegation of the complainant is that in Batra Hospital (opposite party No. 1), he was provided with very poor care and facilities although the complainant had availed of the services of opposite party No. 1 for consideration. It is stated that opposite party No. 2 had fixed the date of operation, but on 20th December, 1992, when opposite party No. 2 visited the complainant, and the complainant asked opposite party No. 2 about the operation and the disease, the said opposite party did not properly respond to the queries of the complainant. It is further stated that as the complainant was suffering from constant severe pain in the neck and spinal cord and opposite party No. 2 was not sure about the disease and the operation, the complainant decided to leave Batra Hospital (opposite party No. 1) and on 21st December, 1992 the complainant left the Batra Hospital (opposite party No. 1), after paying the hospital bills.

IT is stated that thereafter the complainant received a message from the Batra Hospital (opposite party No. 1, about the operation and opposite party No. 2 also sent a messenger to the complainant again assuring that after minor operation the complainant would be alright. The complainant then got himself admitted again in the Batra Hospital (opposite party No. 1) on 27th December, 1992, where he was operated upon on 30th December, 1992 by opposite party No. 2. It is alleged that the condition of the complainant deteriorated after the operation and the complainant and his family members, who were attending the complainant, complained about pain to opposite party No. 2, who again assured the attendants of the complainant that the pain was due to scultraction and would subside. It is alleged that on 8th January, 1993, the complainant was advised to put on Somai Brace on his neck and shoulder and on an enquiry opposite party No. 2 informed the complainant that the Somai Brace would be removed after one or two months. On 8th January, 1993, the complainant was discharged with the directions to visit the hospital (opposite party No. 1) after one month. It is alleged that even at the time of discharge, the complainant had severe constant pain in the neck and opposite party No. 2 assured the complainant that the pain would subside gradually. It is stated that even afterwards, the complainant had severe and constant pain in the neck, with the result that he had to rush to Delhi to consult opposite party No. 2 at the hospital (opposite party No. 1), and after examining the complainant, opposite party No. 2 advised the complainant that pain would subside within a few days. Opposite party No. 2, it is alleged, advised rest and also prescribed some medicines.

IT is further stated that even thereafter there was no improvement in the general condition of the complainant, and the complainant visited the hospital (opposite party No. 1) on 6th February, 1993 and 9th February, 1993. Thereafter on 9th February, 1993 opposite party No. 2 referred the complainant to Dr. S.J. Gupta, for specialised consultation. On the advise of opposite party No. 2, the complainant visited said Dr. S.J. Gupta, at Defence Colony, New Delhi. Thereafter also the complainant visited the hospital (opposite party No. 1) several times, but the pain in the neck and spinal cord continued. On 11th May, 1993 opposite party No. 2 advised the complainant to have an X -ray of the spinal cord. After examining the X -ray of the complainant, opposite party No. 2 in the OPD of the hospital (opposite party No. 1), told the complainant that the complainant had to put Somai -Brace on his neck. It is also stated that opposite party No. 2 further informed the complainant that the complainant was not going to be alright, which came as a shock to the complainant and when family members of the complainant asked opposite party No. 2 that before the operation opposite party No. 2 had assured the complainant that he would be alright, opposite party No. 2 refused to comment.

IT is stated that it was found that opposite party No. 2 negligently had removed the collor bones C -1 and C -2 of the complainant which supported the neck in erection and controlled the movement, and with the removal of these two bones there was a downward fall in the neck with no movement. Somai -Brace collor was fixed on the neck of the complainant for support, which had to be put on for all the 24th hours, as a result of which the health of the complainant further deteriorated to the extent that the complainant could not raise his hand to pick up anything, and could not hold anything in his hands. It is stated that because of the negligent act, the complainant had become handicapped and the percentage of handicap in the case of the complainant was to the extent of 60%. It is alleged that before the operation, the complainant was a very strong young man, but after the operation the complainant became handicapped and needed two persons as his attendants for his daily needs. It is stated that the complainant cannot stand of his own, cannot sit, cannot eat without the help of attendants and the life of the complainant had become a hell. The complainant got served a notice on the opposite parties, demanding damages, but as no response was received from the opposite parties, the complainant has filed the present complaint, with the prayer that a sum of Rs. fifteen lakhs be awarded as damages to be paid by opposite party Nos. 1 and 2, together with interest @ 24% per annum from the date of filing the complaint till realisation. Notice of the complaint was given to the opposite party Nos. 1 and 2, who have entered appearance through their Advocates. On an application, filed by the Counsel for opposite party Nos. 1 and 2, the New India Assurance Co. Ltd. was also impleaded as one of the opposite parties (opposite party No. 3) in the present proceedings.

THE claim of the complainant has been resisted by the opposite parties. Opposite party Nos. 1 and 2 have filed a joint reply/version. In the version (reply), filed on behalf of opposite party Nos. 1 and 2, the abovesaid opposite parties have taken certain preliminary objections, stating therein that the complainant has deliberately concealed material facts, and the complaint filed by the complainant is vague, inconsistent, the allegations made therein are false, incorrect, distorted and concocted. It is stated that due care was taken in the treatment of the complainant to arrest the severe cranio -vertebral anomaly and other ailments, but the complainant failed to carry out the Isometric exercises and other follow -up treatment as was advised.

ON merits it is stated in the version filed on behalf of opposite party Nos. 1 and 2, that the complainant first visited the Orthopaedic Clinic of Batra Hospital (opposite party No. 1) on 30th November, 1992 and was examined by Dr. G.S. Tucker, as an out -patient, vide OPD No. 8059228. It is stated that said Dr. Tucker, an Orthopaedic Surgeon, on the basis of history and complainants previous medical records, diagnosed that the complainant was suffering from Ankylosing Spondylitis, involving mainly the cervical and dorsal spine regions and Basilar Invagination of C -1 and C -2. It is stated that the said Dr. Tucker advised the complainant semi soft cervical collar and MRI (Magnetic Resonance Imaging) of Cranio Vertebral Junction. It is stated that the complainant got the MRI Scan done on the same day, i.e. 30th November, 1992 at GMR Institute of Imaging and MRI Scan Centre, New Delhi. On 2nd December, 1992, the complainant was examined as an out -patient by Dr. Sameer Grover, an Orthopaedic Registrar of opposite party No. 1, and was referred to opposite party No. 2 (Dr. H.N. Aggarwal) for opinion and treatment. Said Dr. Grover advised the complainant to wear cervical collar (four post collar), and orally take medicines to relieve his symptoms. It is stated that opposite party No. 2 examined the complainant on the same day, i.e. 2nd December, 1992 and reviewed all the records brought by the complainant and on examination of the complainant, opposite party No. 2 made provisional OPD diagnosis of the disease with which the complainant was suffering. It is stated that since the complainant was very uncomfortable, opposite party No. 2 advised him admission in the hospital for investigation and treatment. The complainant, and his wife who was accompanying him, were explained that the complainant would require skull -traction to relive his pain and further treatment, medical and/or surgical would depend on the results of further investigations. It is stated that it was explained to the complainant and also to his wife, that in case the diagnosis of tuberculosis was confirmed, then there was a fair chance of recovery from the neck symptoms. It is stated that no assurance was given or could have been given of any improvement in the complainants other chronic diseases. It is denied that any surgery in the region of the neck was minor in nature.

IT is stated that the complainant got himself admitted on 3rd December, 1992 and the admission record of the complainant, at the time of his admission in the hospital (opposite party No. 1), indicated - that the complainant was suffering from backache, etc. for the last 12 years and he was receiving anti -inflammatory drugs off and on; that he had severe anaemia, and had received four blood transfusions in the near past; that he had undergone endoscopic examination at Jaipur and was diagnosed to be suffering from peptic ulcer and for the same he had received some treatment; and that he was on anti -tubercular treatment for the last 9 months, which was considered to be of inadequate duration and poor compliance by the complainant.

IT is further stated that the complainant, at the time of his admission, complained of - (a) pain in the neck for the last six months; (b) progressive restriction of neck movements; (c) regurgitation of food and fluids for the last 3 -4 months; and (d) painful movements (spasm) of the neck, for the last 6 -7 days which were quite severe in nature. It is stated that the complainant, a thin built man, walking with the forward bending of trunk, the neck in hyper flexion, so much so that his chin was touching the upper portion of the chest due to severe spasm of steromastoid muscles (powerful muscles present on either side of the neck). A projection of C -2 vertebral spine was also noticed like a hump in sub -occipital region. It is stated that due to the acute flexion of the neck the status of the lower cranial nerves could not be established. However, there was definite weakness in the grip of both the hands, with wasting of hypothenar muscles of both the hands. The complainant further had fixed flexion deformity of the dorso lumberspine and pelvis. It is stated that the complainant was thoroughly investigated and his reports were as follow : Date Investigations Results 3.12.1992 Hb 8.4 gm% TLC

,400/CMM DLC N -85,E -2,L -13 Urea 21 mg% Sugar 109 mg% Creatinine 0.66 mg/dl Sodium 133 meq/L Potassium 4.8 meq/L 7.12.1992 ESR 122 mm 1st hour 9.12.1992 Rheumatoid Negative Factor 10.12.1992 Hb 8.1 gm% ESR 95 mm 1st hour 11.12.1992 Peripheral smear blood microcytic Hypochromic anaemia. Platelets 6.2 lacs/ CMM 12.12.1992 Bilirubin 0.45 mg/dl SGOT 31 IU/L SGPT 17.3 IU/L Bilirubin 0.45 mg/dl SGOT 31 IU/L Hb 10 gm%

12.1992 HB 10 gm% 1992 HB 8.7 gm%

12.1992 HB 9.6 gm% TLC 10.600/cmm DLC N -83%, L -12% E -3%, M0 -2% X -ray : spine (Cervical, Dorso lumbar) showed Basilar Invagination Fusion of C -5 vertebra, mild collapse of D -11, vertebral body and kypho -scoliosis of dorsolumber Region (i.e. spine having abnormal backward curve, as well as , side to side curve). MRI : Detailed report of the MRI Scan, which was earlier got done by the complainant on 30.11.1992 is reproduced hereunder : MR Imaging of the cervical spine was performed using spine -echo and gradient -echo (GRASS) pulses sequences. Serial sections were obtained in the sagitatal and axial planes using a dedicated cervical spine coil and special flow compensation techniques. 13. It is further stated in the written version filed on behalf of the opposite party Nos. 1 and 2 that the above reports and studies conducted by the opposite parties revealed the evidence of hyper extension of the cervical spine and there was evidence of basilar invagination and the tip of the dens of C -2 was causing focal compression of spinomedullary junction. It is stated that in laymans language, Basilar Invagination means jetting in of upper vertebrae of cervical spine (i.e. neck) into the foramen magnum (hole in the base of the skull) in the back part of the skull. 14. It is stated that on 7th December, 1992, the complainant was put on skull traction and an X -ray of cervical spine was done, as a result of which there was considerable relief to the complainant, and he was able to lie down straight with the support under the pelvis. It is stated that the hump of C -2 vertebra as well as the spasm of the sterno -mastoid muscle also improved. On 9th December, 1992, a portable X -ray of the cervical spine was also taken, which revealed little or no basilar invagination. The position of C -2 vertebra also considerably improved as compared to earlier X -rays, which showed C -2 vertebral spine and occiput in almost the same plane. On the same day, one unit of blood was transfused due to severe anaemic condition of the complainant. On 10th December, 1992, Dr. R.K. Mathur of opposite party No. 1 submitted report regarding CT Scan of the CV junction, which revealed that appearance was highly suggestive of tuberculosis of the C -2 vertebral body with paraspinal extension. It is further stated that to confirm and differentiate the diagnosis, additional investigations were carried out and ESR was repeated, which was again very high and Elisa Test for tuberculosis was conducted which showed positive results. On 11th December, 1992, another unit of blood was transfused as the haemoglobin of the complainant was very low. On 12th December, 1992, the complainant was referred to Dr. Arun Dewan, a consultant physician for anaemia, who after examination, observed that in view of the chest lesion, raised ESR, and CT finding of C -2 vertebra, Kochs (tubercular) etiology was most likely. Dr. Dewan recommended gastrointestinal consultation. Accordingly, Dr. R.K. Himthani, a gastroenterologist, conducted endoscopy and the examination revealed erosion/ulcer/edema of duodenum. 15. It is further stated that in view of the above findings and previous history, anti -tubercular treatment was re -started. It is stated that the complainant, his wife and the relatives, were explained the above findings, their implications and the methods of treatment, and the complainant at that stage was exposed to six doctors, as detailed below : Dr. H.N. Agarwal (MS, MCh -Neuro Surgeon), Dr. R.K. Mathur (Radiologist and CT Scanner), Dr. Harsh Mahajan (Radiologist and MRI Scanner), Dr. Arun Dewan (Medical Specialist), Dr. R.K. Himthani (Medical Specialist and Gastroenterologist), and Dr. G.S. Tucker (Orthopaedic Surgeon) 16. The complainant, his wife and the relatives were also informed that the complainant would be benefited by decompressing the C -2 area of the cervical spine, and the proposed operation would provide an opportunity to exclude malignancy by taking a biopsy of that area. The complainant, as per the case of the abovesaid opposite parties, was categorically explained that the contemplated surgery would not affect or improve his other ailments that had developed in the dorsal spine earlier. On completion of MRI scan, reapplication of traction was advised, but the complainant refused and on 21st December, 1992, the complainant got himself discharged against medical advice and at personal risk and responsibility. The complainants action in interrupting his treatment, at personal risk and responsibility, indicates his callous attitude in taking the treatment, thus directly affecting his well being.

IT is stated that on 27th December, 1992, the complainant again got himself re -admitted and on 30th December, 1992, opposite party No. 2 operated upon the complainant and it was noticed that left side laminectomy of C -2 vertebra was eroded. Biopsy from the lower boarder of C -1 and surrounding pathological area and muscles was taken with a view to exclude the possibility of malignancy. It is stated that on the seventh post -operative day the stitches were removed and on the ninth post -operative day, after the operation, the complainant was discharged. He was advised to continue the anti -tubercular treatment for fifteen months and was also advised to religiously perform Isometric Exercises of the neck in addition to wearing of Sommai Brace while sitting, standing or walking. The complainant was also advised to visit the hospital and to have his progress reviewed after an interval of three weeks, but the complainants severe anaemic condition and non -compliance of medical instructions in carrying out Isometric Exercises ultimately lead to poor healing. It is stated that the complainant was uncooperative, and completely ignored the medical advice. The stand taken by the opposite parties in the written version in nutshell is that there was no deficiency of service on the part of the opposite parties insofar as the treatment of the ailments of the complainant was concerned. It is stated that the complainant had been suffering from several ailments for over twelve years and the treatment provided by the abovesaid opposite parties was limited to the diagnosis and treatment of tuberculosis of the C -2 vertebra. It is stated that the complainant wanted a total guarantee for all his diseases, which can never be given for a progressive and incurable disease with which the complainant was suffering. It is stated that there was no deficiency in service on the part of the opposite parties and the present complaint, filed by the complainant, deserved to be dismissed with exemplary costs.

OPPOSITE party No. 3, the New India Assurance Co. Ltd., filed a separate reply/version. In its written version, filed on 10th October, 1997, the abovesaid opposite party, while adopting the pleas taken by opposite party Nos. 1 and 2, stated that the maximum liability of opposite party No. 3, in terms of the package insurance policy taken in favour of opposite party No. 2, was limited to the extent of Rs. 5 lakhs. It is stated, in the written version filed on behalf of the abovesaid opposite party, that there is no cause for filing the present complaint against the abovesaid opposite party and the complaint filed by the complainant deserved to be dismissed with exemplary costs.

THE complainant filed rejoinder/replication to the reply/written version filed on behalf of the opposite parties, controverting the pleas taken in the written version by the opposite parties and reiterating the averments made in the complaint. The complainant, in support of his case, has filed his own affidavit, affidavit of Smt. Omwathi, his wife, Shri Madan Lal, his brother and Smt. Bimla, an attendant, who attended the complainant. However, the learned Counsel for opposite party Nos. 1 and 2 has made a statement on 17th April, 1998 that the abovesaid opposite parties do not propose to file any affidavit by way of evidence. The learned Counsel for opposite party No. 3, though initially sought time for filing affidavit by way of evidence, but on 13th August, 1998 he too has made a statement that opposite party No. 3 also does not propose to file any affidavit by way of evidence. The complainant and opposite party Nos. 1 and 2 have filed written submission.

WE have heard the learned Counsel for the complainant and the learned Counsel for opposite party Nos. 1 and 2 at length and have also carefully gone through the documents/material on record. We could not have the benefit of the arguments of the learned Counsel for opposite party No. 3 as none appeared on behalf of opposite party No. 3 on 11th August, 1999 and 3rd July, 2000. On the basis of material on record, contentions advanced at the Bar and the pleas taken by the parties, the only question that arises for consideration in the present complaint is as to whether there was any deficiency in service (negligence) on the part of the opposite party Nos. 1 and 2 within the meaning of Section 2(1)(g) of the Act, and if so, to what relief the complainant is entitled to the facts and circumstances of the present case ?

THE grievance of the complainant in the present complaint, as already stated by us, in brief, is that due to deficiency in service (negligence) on the part of opposite party Nos. 1 and 2, the complainant was subject to extreme suffering, as a result of which he has become permanently handicapped to the extent of 60%. It is alleged that as a result of negligence on the part of opposite party Nos. 1 and 2, the complainant, who, before the operation, was a very strong young man, after the operation, has become handicapped and requires two persons as his attendants for his daily needs and the life of the complainant has become a virtual hell as he could not stand, sit, eat by himself. On the other hand, the case of the opposite parties (opposite party Nos. 1 and 2) is that there was no negligence on the part of the abovesaid opposite parties and the complainant was provided with all medical assistance and the treatment provided to the complainant was provided with proper and full care and attention, and also as per the prescribed standard and practice. Before discussing the merits of the above aspect, we would first like to examine the legal position with regard to the 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 patient 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 patients death has been caused by the defendants indolence or carelessness, it will not avail to show that he had sufficient knowledge; nor will it avail to prove that he was diligence in attendance. If the patient has been killed by his gross ignorance and unskillfulness... 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).'' (underlined 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 a 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 deserving of censure or inexcusable.''(Emphasis supplied) In Halsburys 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 competence 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. Talors 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 Judges 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 Mahon v. Osborne, (1939) 2 KB 14 at pat. 47 : ''I would not for a moment attempt to define in vacuo the extent of a surgeons 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 the Privy Council in Overseas Tanskship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd., (1961) 1 All.ER 404.

IN Lord Nathans Medical Negligence, 1957 Edition, the following observations of Lord President Clyde in Hunter v. Hanley, 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 skillful 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 Honble Supreme Court in case Achutrao Hari Bhavu Khodwa & Ors. v. State of Maharashtra & Ors., (1996) 2 SCC 634, while placing reliance on earlier decisions of the Honble 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 profession 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 the 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.

IT is in the light of the above settled principles governing medical man that we have to decide as to whether the opposite parties 1 and 2, in the facts and circumstances of the present case, were in any way negligent, so as to saddle them with any liability.

ON the basis of material on record, it is an admitted fact that the complainant, who was suffering from pain in the neck and spinal cord, visited the Orthopaedic Clinic of opposite party No. 1 for the first time on 30th November, 1992 and was examined by Dr. G.S. Tucker in the O.P.D. as an outpatient (OPD No. 8059228). Dr. Tucker, after examination and also on the basis of previous history of the complainant, diagnosed that the complainant was suffering from Ankylosing Spondilitis, involving mainly the survival and dorsal spine. Dr. Tucker advised the complainant semi -soft survical collar and MRI, which was performed on that very day, i.e. 30th November, 1992 at GMR Institute of Imaging and MRI Scan Centre, New Delhi. On 2nd December, 1992, the complainant was examined again as an out -patient by Dr. Sameer Grover, an Orthopaedic Registrar of opposite party No. 1. Said Dr. Grover advised the complainant to wear cervical collar and orally take tablets of Corbutyl and Supradyn, to relieve his systems. The complainant was referred to by the Registrar of opposite party No. 1, to opposite party No. 2 on that very day, i.e. 2nd December, 1992, who examined the complainant, reviewed the records brought to him and made professional OPD diagnosis. Since the complainant was too uncomfortable, opposite party No. 2 advised the complainant for his admission in the hospital for investigations and treatment. The complainant got himself admitted on 3rd December, 1992 in the hospital (opposite party No. 1), where thorough investigations were carried out, treatment was given, and the complainant during the abovesaid period was treated as many as six doctors, each one of them being a specialist in his subject. The complainant on 21st December, 1992 got himself discharged against medical advice, at his personal risk and responsibility. As a result of complainant interrupting his treatment, the condition of the complainant deteriorated further and the complainant again got himself admitted in the hospital (opposite party No. 1), on 27th December, 1992. On 30th December, 1992, opposite party No. 2 operated upon the complainant, where left side laminectomy of C -2 vertebra, which was seen eroded in the CT Scan, done, and biopsy from the lower boarder of C -1 and surrounding pathological area and muscles was taken. The complainant was discharged on 8th January, 1993, with advice to complete anti -tubercular treatment (ATT) for fifteen months as per the standard practice in such like cases. He was also advised to religiously do Isometric Exercises of the neck, in addition to wearning Somai Brace during sitting/standing/walking. He was also advised to visit the hospital and get his progress reviewed after an interval of three weeks. From the above facts, it is clear that opposite party Nos. 1 and 2, while treating the patient, did not act negligently and had acted in accordance with the standard practice. There is nothing on record to indicate that in the hospital (opposite party No. 1), the complainant was not attended with due care and opposite party No. 2 while attending to the complainant, did not act with reasonable care or had acted in such a manner which had fallen short of the standard of reasonable medical care. On the basis of the above facts, and the settled legal position, culled out from various judicial decisions quoted above, it cannot be stated that there was any deficiency in service (negligence) on the part of the opposite party Nos. 1 and 2, so as to saddle any one of them with any liability in the present case. In view of our above finding in respect of opposite party Nos. 1 and 2, there is no question of saddling opposite party No. 3 with any liability in the facts and circumstances of the present case.

THOUGH we have all the sympathies so far as the sufferings of the complainant are concerned, yet we have our own limitations. In view of the legal position explained and the reasons already stated, the complainant, in the present complaint, is not entitled to any relief. Accordingly, the present complaint filed by the complainant, is dismissed. In the facts and circumstances of the case the parties are left to bear their own costs. Complaint dismissed. ===========================================================================