Usashi Mukherjee And Anr. vs COAL INDIA LTD. And ORS.

THIS complaint has been filed by Smt. Usashi Mukherjee, Complainant No. l and Sri Madhumoy Mukherjee, Complainant No. 2, who are parents of Manujesh Mukherjee, against opposite parties 1 to 5 for deficiency in service and medical negligence.

THE facts of the case are: The complainants'' son Manujesh Mukherjee, who was 16 years old was a student of Class -IX of St. Patrick''s High School, Asansol nol. On 15.7.1996, he returned from school with high fever and body ache. He was rushed to Sanctoria Hospital, Eastern Coal Fields Ltd. for treatment and met the emergency doctor at 6.00 p.m. The emergency doctor refused to admit the boy as in -patient nor did he refer the patient to the concerned senior specialist for proper checkup. A casual prescription was given viz., Norbactin 400 mg tablet twice daily for 5 days, Siloderm Mixi ointment for application twice/thrice daily for 7 days, B -Complex tablet -1 for 5 days, Paracetamul -1 tablet Sos Voveran tablet without making any diagnosis of the ailment with which the boy was suffering. As per the directions of the emergency doctor, medicines as prescribed were administered, but even after 24 hours, there was no relief from his ailment. The complainants again contacted the emergency doctor on 16.7.1996 at 7.00 p.m., and the same doctor prescribed Amclox capsule -1 capsule 6 hours interval for two days. The complainants averred that the doctor showed no interest to admit the boy as in patient nor did he refer him to a specialist. He simply suggested that the patient should take medicines for two days.

THE condition of Manujesh Mukherjee worsened and he was brought on 18.7.1996 to attend O.P.D. and by that time he was having high fever associated with chill, rigor, vomiting, etc. Once again without checking up the patient properly, the duty medical officer advised some more medicines without discontinuing the previous one. The doctor also advised for blood test for total count and differential count and viral test urine for RE/ME. The said medical officer i.e., Dr. P.K. Mondal (OP No. 5) was careless in his treatment as he had not given any directions to the parents as to how the condition of the patient was. He gave no further directions to be observed by the parents. The condition of the patient became bad on 19.7.1996 and then the medical officer of Sanctoria Hospital advised him for admission. Investigation reports were collected and without consulting any specialist, the duty medical officer himself diagnosed and arrived at a decision that the cause of ailment of the patient was enteric gastroenteritis and without going through the viral report as it had not yet reached, he concluded as to how the boy should be treated. The patient was treated without receiving viral test report on 19.7.1996. On 20.7.1996 Dr. Arup Banerjee, who was an emergency duty doctor examined the patient and directed Fenergun injection to be administered. Each and every doctor who examined the patient only expressed their individual opinions from their own point of view and no concrete discussion was held between the doctors to arrive at a consultative decision as regards the condition of the patient. Without arriving at a decision regarding the cause of ailment of the patient, different antibiotics viz., Domstol -1 tablet thrice daily into 3 days, Gentamicin injection lm x 2, Sterptomagma -1 tablet thrice daily for 3 days including some prohibited and banned medicines were administered in a most haphazard manner almost on an experimental basis. It is due to the casual and negligent fashion of treating the young boy, which had resulted in serious consequences. On 21.7.1996, the duty medical officer asked the complainants to bring 30 kgs. of ice, which the complainants complied with. The said quantity of ice was placed beneath the body of the patient. The condition of the patient started deteriorating and he was collapsing. In spite of obvious serious condition of the patient, the doctors did not shift him to ICU or no precautionary measures were taken by the supervising doctor, and as a result of which, the patient died on the same night.

ON the death certificate, which was issued by the concerned doctor, the reason of death was noted as Hyper Pyrexia leading to collapse of respiratory failure. The complainants submitted that from 15.7.1996 to 21.7.1996, opposite parties avoided their responsibility and did not detect the cause of Hyper Pyrexia, under whom the patient was being treated.

THE complainants contended that unfortunate death of their son was occurred only due to medical negligence and deficiency in service on the part of the opposite parties. The complainants hired the services of doctors attached to opposite party hospital, and hence, they are fully entitled to get the damages for the loss suffered due to the death of their son prematurely and claimed Rs. 35,70,000. The complainants'' son hails from a family having longevity on an average of 75 years. Since his grand -father is still alive at the age of 82 years, the life span of the boy has been estimated at 70 years. The doctors of the hospital were negligent in exercising reasonable skill and care, which a prudent doctor would exercise, causing enormous suffering to the complainants for life time. Prayer:

THE following is the prayer of the complainants. Deceased''s contribution for defraying family expenses including value of the estate might have been not less than Rs. 4,000 p.m. x 12 i.e. Rs. 48,000 p.a. which would be multiplied after 20 years i.e., Rs. 48,000 x 20 years. Rs. 9, 60,000 Own Savings: (1) P.F. Contribution @ Rs, 2,000 p.m. x 12 i.e., Rs. 24,000 p.a. and after 20 years the total sum would have come with accrual of interest Rs. 15,00,000 (2) Unit Trust Deposit @ Rs. 2,000 p.a. X 20 years plus interest Rs. 2,00,000 (3) National Savings Certificate Rs. 4,000 p.a. x 20 years Rs. 4,00,000 (4) Other Savings (Recurring) Rs. 6,000 per year x 29 years Rs. 3,60,000 (5) Gratuity Payment Rs. 1,50,000 Rs. 35, 70,000

THE opposite parties in their reply stated that the deceased was admitted in the hospital on 19.7.1996 at 5.00 p.m. although he was getting treatment for fever in OPD for 3 -4 days by different doctors. It is submitted that the deceased was not a normal person and was suffering from serious and peculiar disease of Hypothalamus and autonomic nervous system. The doctors at Sanctoria Hospital had referred him to CMCH, Vellore in February/March, 1994 because of the complicated nature of the ailment. The patient was advised for a check -up after one year and accordingly he had taken permission to visit CMCH, Vellore in December, 1995/January, 1996. There was an application again from the complainants for another visit to be made in February 1996. The complainants have totally suppressed the aforesaid facts before this Commission and did not disclose before the treating doctors, who were on duty during the four days of treatment before he was admitted to the hospital on 19.7.1996. The complainants for the reasons best known to them did not produce the reports/records of CMCH, Vellore during his treatment to the benefit of the duty doctors. The deceased was referred to CMCH, Vellore for the complaints of - (a) Recurrent fainting attacks; (b) Under developed secondary sexual characteristics; (c) Un -descended testis of left side (d) Obesity; (e) Warmness with no sweating on left side of the body.

THESE are the features of Hypothalamic Disorder (Disorder of the autonomic nervous system -Central regulator). In spite of repeated visits to CMCH, Vellore, his complaints were not relieved except the complaint of un -descended testis of left side. The symptoms of delayed secondary sexual characteristics and reduced sweating on the left side of the face and upper limb has been recorded in the report of CMCH, Vellore dated 18.3.1994 (Annexure -B).

THE LH level recorded in the same report was 0.4m IU/ml which was low as recorded in the report of Dr. Seshadri, Professor of Endocrinology in his report dated 16.2.1995. (Annexure -C).

THE complainant had reported to Dr. Seshadri, Professor of Endocrinology that the deceased suffered from repeated episodes of unconsciousness each time lasting for about five seconds. The doctor also recorded the fact of obesity and pointed out that the patient had bilateral Lipomastia. (Annexure -D).

THE deceased had not only a pre -existing serious disease of the brain (Hypothalamus and autonomic nervous system) but also repeated fainting attacks due to vasovagal attacks or postural hypotension. It is a feature of autonomic nervous system disorder. The patient was referred to CMCH, Vellore because of the limited facilities available in the Sanctoria Hospital. In spite of repeated visits to CMCH, Vellore the patient did not get any relief. The Medical Board met on 10.5.1996 which was chaired by Dr. G.B. Sahoo, Head of the Department, Medicine, Dy. CMO and many other doctors who have given the opinion as under: (1) Fainting attacks off and on for the last two years. (2) Warm and no sweating in left side of the body.

The Board approved the complainants'' application for a revisit to CMCH, Vellore for June, 1996. It is also submitted that disorder of the Hypothalamus gives rise due to Hypogonadism -which was present in this case in the form of under developed secondary sexual characteristics and un -descended/retractile testes of left side.

THERMOREGU LATORY Disorder: This rare disorder includes central disturbances in temperature control with central nervous system dysfunction caused by unusual congenital defects affecting the Hypothalamus. Such patients may have exaggerated responses in temperature during the course of other fever producing diseases vide Harrison''s Principles of Internal Medicine, 12th Edition, Page 131.

THE doctors had given the treatment according to the symptoms on the relevant dates as different doctors had treated on different days. The patient was not treated on experimental basis as alleged but on the basis of symptoms and the case history given by the parents. The parents did not make previous record of the patient available to the duty doctors to enable them to understand the case in their entirety over the years. The doctors were not put to notice regarding genetic disorders the patient was suffering from. Ice was used for cold sponging to reduce the temperature, which is a common practice in cases of high temperature and which cannot be held as negligence or deficiency in service. It is further submitted that the opposite party hospital does not have ICU facility and hence the question of shifting the patient to ICU does not arise. The patient was planned to be shifted to a cabin, which was having air conditioning facility to control the temperature, but the complainants did not allow the patient to be shifted there. The cause of death was Hyper Pyrexia leading to cardio vascular collapse and respiratory failure and this situation arose because previous record of the patient was unknown to the doctors and even in the complaint the complainants have not made a whisper of the same which itself shows the conduct of the complainants. It is contended that the concerned doctors acted in a prudent manner and discharged their duties as per the normal medical terms. They prayed that the complaint to be (dismissed as there are no merits in this case.

DR . Swarup Kumar Bhanja (Opposite Party No. 4), who is the Medical Superintendent of Central Hospital, Kalla, and Asansol in his reply affidavit, submitted that the complaint does not disclose any cause of action to show medical negligence except vague allegations. It is stated that opposite party No. 4 obtained Post -Graduate Degree in General Medicine (M.D.) and that he worked in opposite party hospital from April, 1990 to August, 1996 and at present he is working as Head of the Department of Medicine, Central Hospital, Asansol. Opposite Party No. 4 made the following submissions:

ON 20.7.1996 at 10.10 p.m. opposite party No. 4 examined the deceased after getting a telephone call from complainant No. 2 at 10.00 p.m. stating that his son was in serious condition and requested to attend the case until Dr. G.B. Sahoo (HOD, Medicine) arrives. Considering the emergency and gravity of the situation, he rushed to the hospital and found that the patient was in a serious condition. The blood pressure was falling and the auxiliary temperature was 105 F. The patient was having convulsion and the duty nurses were giving sponging as advised. Opposite Party No. 4 tried to resuscitate the patient by advising inject -able steroids and antipyretics available in the hospital to restore the falling blood pressure and control the temperature. As the patient was having convulsions and unable to take oral drugs, injections were to be given. Hence, there was no deficiency in service or medical negligence in rendering treatment in such emergency situation by Opposite Party No. 4.

HE advised the complainants to move patient to Cabin No. 2 so that he could have air conditioning facility for better control of temperature and management of abnormal high fever. It is the complainants who did not allow shifting of the patient in spite of explaining the need to do so. The complainants are to be blamed for their own decision in not cooperating with the doctors in treating the patient.

THE patient''s condition improved by 10.40 p.m. on the same day i.e., on 20.7.1996, Blood Pressure was restored to normal. It came to 130/70 Hg. Pulse rate was 100/m. Lungs were clear. Heart sound was normal and convulsions stopped. Opposite Party No. 4 informed Dr. G.B. Sahoo about the measures taken and reviewed the treatment to further stabilize his condition.

AFTER discussing the case with Dr. G. B. Sahoo, with his permission, he had left the hospital but was again called for the second time at 1.45 a.m. on 21.7.1996 by Dr. Sahoo, which is exactly two hours after he had left the patient. Then he arrived at the hospital after discussing with Dr. Sahoo he started joint treatment. In spite of better drug administration, B.P. started falling by 12 midnight, became non -recordable by 1.30 a.m. At 1.45 a.m. feeble systolic B.P. was 50 mmHg, and non -recordable diastolic B.P. was observed. Various measures were taken to control the temperature, and raise B.P. The patient was having 104 F temperature at 1.45 a.m. The doctors and nurses gave cold sponging at 1.50 a.m. but despite of it, his condition did not improve and succumbed to his illness and died.

OPPOSITE Party No. 4 further submitted that there was no cardiac irregularity till 1.45 a.m. or respiratory distress till 1.50 a.m. It is submitted that Opposite Party No. 4 was not involved in the treatment of the patient from 15.7.1996 to 20.7.1996, and that he attended the patient for the first time at 10.10 p.m. on 20.7.1996. He issued death certificate at 2.10 a.m. on 21.7.1996 and recorded that the cause of death was Hyper Pyrexia. Although he was diagnosed to be P.U.O. (Pyrexia of unknown origin) with gastritis but developed Hyper Pyrexia only in the night of 20.7.1996 but it was not there from 15.7.1996. Opposite Party No. 4 submitted that there has been no negligence on his part as due care and caution was exercised according to his professional skill and to the best of his knowledge. The complaint should be dismissed as the complainants did not give the history of the patient to him while giving treatment.

DR . P. K. Mondal, Senior Medical Officer with Opposite Party No. 2 in his reply affidavit submitted that he started treatment of the patient only from 18.7.1996 at about 9.00 a.m. to 20.7.1996 up to 1.00 p.m along with other doctors. It is submitted that he was not involved in the treatment from 15.7.1996 to 17.7.1996. It is submitted that after examination of the patient he advised some investigations have to be done such as blood for TC, DC, MP, viral test, etc. and urine for RE, ME and also for culture and sensitivity on separate requisition paper. It is submitted that during the period of complete examination, the complainants did not disclose the patient''s previous illness and treatment given, in spite of the fact that he had complete history of it from CMCH, Vellore. On 18.7.1996 at about 3.30 p.m. he himself issued a medical certificate to the boy on his father''s request for informing the school about his illness. When the reports were seen in the afternoon on 18.7.1996 they were normal. On 19.7.1996 at about 4.20 a.m. the patient was brought to the hospital with a complaint of frequent vomiting. He was advised to be admitted in the hospital as there was no improvement in his condition in comparison with previous day''s findings. The patient did not show any alarming signs for which a specialist opinion is required. It was on 20.7.1996 at about 9.00 a.m. he reviewed the case along with Dr. Sahoo and that at 12.15 p.m. on 20.7.1996 he along with Dr. M. Roy (Specialist) and Dr. Azmi attended the patient and again jointly reviewed the case. It is submitted that the patient was examined by several doctors including some specialists at frequent intervals, at no point of time, previous history and ailment of the patient was disclosed to the doctors. It is submitted that group discussions with the colleagues were done at every stage while treating the patient and even in emergency before receiving results of viral test. It is a clinical diagnosis. Various antibiotics and drugs were prescribed so that the time is not lost. Hence there is no negligence or lack of professional skill or dereliction of duty on the part of Opposite Party No. 5 and others in the treatment of the patient. Hence, it is prayed that the complaint should be dismissed. Our Findings:

FROM the interrogatories that were exchanged between the complainants and the opposite parties, we find that the issues that were raised mainly regarding bill payment and the necessary charges as to what is chargeable under service conditions and due to non -raising of the bill chargeable on this count by the authorities of Sanctoria Hospital and the payment of the same by complainant No. 2 is still awaited. Second issue is regarding requirement of 30 kgs of ice by the doctors and that the ice has been supplied. The complainants pleaded that they had no idea as to why it was required to be brought in. In our view, these are not relevant to the actual claim of the complainants to decide the question of medical negligence or deficiency in service on the part of opposite parties. Hence, we find that there is no need to give any directions regarding the same.

THIS Commission formulated four points on 7. 2. 2007 which are as under: (i) What doctor/hospital were supposed to do and they had not done? (ii) What they were supposed not to do and they have done? (iii) What was the effect and injury caused to the patient? (iv) What damages have been caused to complainants and what is the compensation payable by the doctors/hospital?

DESPITE all the arguments made by the learned Counsel for the complainants, in our view, we do not find any medical negligence or deficiency in service on the part of the doctors. The allegation made by the complainants that the emergency doctor on duty refused to admit the patient and did not refer him to a senior specialist keeping in view the seriousness of the patient, we find that there is no evidence on record to that effect. The complainants are eligible to use the facilities of the hospital under the terms of appointment. Free medical services have been given so far to the complainants for the treatment of their son and adequate facilities were provided at free of cost to the employee of the company M/s. Coal India Ltd. Even when the patient was shifted to the cabin no charges were paid by the complainants. The deceased was not a normal patient and was suffering from a serious and peculiar disease of Hypothalamus and nervous system. He was repeatedly referred to CMCH, Vellore by the opposite parties for treatment because they did not have know -how to treat this extraordinary and unusual medical problems the patient was suffering from. Considering the question of payment of charges does not arise, the emergency doctor prescribed medicines from 15.7.1996 onwards till 18.7.1996 oh the basis of clinical examination. It is not the case of the complainants that the medication that was prescribed to the deceased was wrong, which ought not to have been given and it is also not the case of the complainants that they ought to have given certain medication. There is no such averment as to what was the negligence regarding the treatment, and hence, we do not find that the above 1 and 2 points are justified. What was the effect and injury caused to the patient?

THE allegation that the patient was not shifted to ICU is absolutely baseless because the hospital in question did not have ICU facility. The patient was examined by several doctors including the specialists at frequent intervals from 19.7.1996 from 5.00 p.m. onwards till the death of the patient as is evident from BHT. Dr. G. B. Sahoo, Head of the Department, Medicine, visited the patient on 20.7.1996 several times and provided best treatment that was available with them. The patient came with history of high fever with 3 days duration, and hence viral test was advised that could not be dereliction of duty on the part of opposite parties. Although the complainants alleged that some prohibited/banned drugs were administered but the record does not show any such evidence. Mere entry in small letters "PUO" (Pyrexia of Unknown Origin) cannot be held against the doctor. It only indicated that the cause of PUO may be enteric'' which is not provisional diagnosis. It was only a suspicion as per the affidavit of Dr. P. K. Mondal. Till final diagnosis was reached, several investigations and laboratory tests were done step by step. Actual provisional diagnosis from BHT was PUO + Gastritis. Dr. M. Roy, Dr. Azmi, Dr. Arup, Dr. Lala, Dr. Benerjee, Dr. G.B. Sahoo along with Opposite Parties 4 and 5 have continuously attended on the patient. It is not anybody''s case that the patient was left without seeing by doctors. Most important aspect of the case has been ignored by the complainants in the complaint and just the same way they have also ignored to inform the duty doctors/emergency duty doctors about the past history of the patient from 15.7.1996 onwards, which we feel very strange. When the complainants have been taking their son repeatedly to CMCH, Vellore for the various diseases he was suffering from and especially it is within their knowledge that these diseases have also implications regarding body temperature control, fluctuations which are not common ailments, such vital information has been withheld for the reasons only known to the complainants.

IF this previous history of the patient was not concealed, the doctors could have definitely addressed to the case and would have treated the patient accordingly. Different doctors were attending to the patient and the complainants did not disclose the pre -existing disease of nervous system of their son. The doctors did their best because they were under the impression that the deceased only had high fever but did not consider the various complications that could be attracted due to his pre -existing disease. The condition of the patient deteriorated despite the best medicines, which were administered to give relief. Opposite parties have provided the medical record and having given enough consideration to the record, we find that doctors have considered all the clinical aspects which they had seen at the time of diagnosing the disease of the patient. They have treated the patient for PUO with gastritis, and accordingly medication has been given in line with standards of medical texts at the relevant time. The complainants have not brought in any expert evidence to justify the complaint.

THE patient was suffering from prolonged illness and availed of the services of opposite parties for taking treatment at CMCH, Vellore. Disorders of temperature regulation and autonomic dysfunction, Hypothalamus is the thermostat of the body. Absence of sweating and warmness in left side of body was the evidence of the above disorder.

ANTERIOR hypothalamus contains warm and cold sensitive neurons that respond to local and environmental thermal gradients. Posterior hyposalamus generates the signals necessary for heat dissipation. Harrison''s Principles of Internal Medicine 13th Edition, Page 1907. A disorder of the thermostat (Hypothalamus) cannot regulate the body temperature properly. Thermoregulatory Disorder:

THIS rare disorder includes central disturbances in temperature control with central nervous system dysfunction caused by unusual congenital defects affecting the Hypothalamus. Such patients may have exaggerated responses in temperature during the course of other fever producing diseases vide Harrison''s Principles of Internal Medicine, 12th Edition, Page 131.

WE have carefully gone through the records and heard the arguments of the learned Counsel for both the parties. In our opinion, the complaint of medical negligence is merely based on surmises and there is no prima facie evidence to establish any case of negligence on the part of the opposite parties.

COMPLAINT is liable to be dismissed on the ground of suppression of material facts. Further the complainants have falsely submitted the complaint that they had availed the services of doctors on payment of consideration.

AS already observed, in Jacob Mathew''s case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint, which is denied by the other side, can by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.

AT this juncture, it is important to note that recently the Supreme Court in Martin F. D''Souza v. Mohd. Ishfaq, I (2009) CPJ 32 (SC)=157 (2009) DLT 391 (SC)=II (2009) SLT 20, considered various aspects of medical negligence. We excerpt some of the passages from the said judgment for benefit: "(34) The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of many cases. It depends on the particular facts and circumstances of the case, and also the personal notions of the Judge concerned who is hearing the case. However, the broad and general legal principles relating to medical negligence need to be understood. (35) Before dealing with these principles two things have to be kept in mind - (1) Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge; and (2) A balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practise his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.

Keeping the above two notions in mind we may discuss the broad general principles relating to medical negligence. General Principles relating to Medical Negligence -

As already stated above, the broad general principles of medical negligence have been laid down in the Supreme Court judgment in Jacob Mathew v. State of Punjab and Anr. However, these principles can be indicated briefly here. 38. The basic principle relating to medical negligence is known as the Bolam Rule. This was laid down in the judgment of Justice McNair in Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 as follows - Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill It is well - established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.''

Bolam''s test has been approved by the Supreme Court in Jacob Mathew''s case. 39. In Halsbury''s Laws of England the degree of skill and care required by a medical practitioner is stated as follows - 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, and a person is not liable in negligence because someone else of greater 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 responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.''

A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade. 42. There is a tendency to confuse a reasonable person with an error free person. An error of judgment may or may not be negligent. It depends on the nature of the error. 43. It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. As Lord Clyde stated in Hunter v. Hanley, 1955 SLT 213 - "In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men.... 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 if acting with ordinary care...."

Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.

Judged by this standard, the professional may be held liable for negligence on the ground that he was not possessed of the requisite skill which he professes to have. Thus a doctor who has a qualification in Ayurvedic or Homeopathic medicine will be liable if he prescribes Allopathic treatment which causes some harm vide Poonam Verma v. Ashwin Patel and Ors., (1996) 4 SCC 332. In Dr. Shiv Kumar Gautam v. Alima, Revision Petition No. 586 of 1999 decided on 10.10.2006, the National Consumer Commission held a Homeopath liable for negligence for prescribing allopathic medicines and administering glucose drip and giving injections.

Finally it held, "Hence Courts/Consumer Fora should keep the above factors in mind when deciding cases related to medical negligence, and not take a view which would be in fact a disservice to the public. The decision of this Court in Indian Medical Association v. V.P. Shantha (supra) should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. In fact in the aforesaid decision it has been observed (vide para 22): In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man''s control.............. The Courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples. It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is."

WE place reliance on the aforementioned judgments of the Hon''ble Supreme Court and in view of the aforesaid discussion regarding this case, in our view, the complainants have faulted on their own throughout in getting correct treatment for their son by withholding the previous medical history. Doctors cannot be expected to know the medical history of the patient on their own, unless it is brought to their notice by the patient or their relatives. Withholding and suppressing the material facts of the case history of the patient to the Doctor is unpardonable conduct of the patient/relatives. Doctors are subjected to mental agony when their professional conduct is being questioned by unreasonable demands made by complainants only to extract exaggerated compensation through undue means. Previous medical history of the patient is a "MUST" to be produced before the Doctor while availing their services.

ALTHOUGH , we feel that this is a fit case to be dismissed with costs even if it is notional, considering the agony of the complainants, who must be suffering from loss of their child, we have refrained from taking such a drastic step. Patients/complainants should come to the consumer Fora only with clean hands for availing the mechanism available under the Consumer Protection Act. Non -disclosure of material facts to the doctors while seeking their medical service, in our view is atrocious. The doctors suffered in the hands of such insensitive, irresponsible and greedy complainants and we have scant regard for such citizens of this country. We dismiss the complaint and there shall be no order as to costs. Complaint dismissed.