எவை எல்லாம் மருத்துவ சேவை குறைபாடுகள்?

Decided on 14.3.2012

NATIONAL CONSUMER DISPUTES

REDRESSAL COMMISSION, NEW DELHI

SURESHA NANDA  v. r. ANOOP KUMAR

First Appeal No. 56 of 2006 against Order dated 10.11.2005 in Original Complaint Case No. 51 of 2000 of Punjab State Consumer Disputes Redressal Commission, Chandigarh

What amounts to medical negligence on the part of a medical professional has been considered by the Hon’ble Supreme Court and Foreign Courts in number of its decisions. In this connection reference may be made to the celebrated and oftenly cited Queen’s Bench Division in Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582, (Queen’s Bench Division), Spring Meadows Hospital & Another v. Harjol Ahluwalia & Anr., I (1998) CPJ 1 (SC)=III (1998) SLT 684=(1998) 4 SCC 39, Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC)=I (1996) CLT 81 (SC)=(1995) 6 SCC 651, Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Another, AIR 1969 SC 128, Savita Garg (Smt.) v. Director, National Heart Institute, IV (2004) CPJ 40 (SC)=VI (2004) SLT 385=(2004) 8 SCC 56, Malay Kumar Ganguly v. Sukumar Mukherjee Doctors & Ors., III (2009) CPJ 17 (SC)=VI (2009) SLT 164=III (2009) CCR 558 (SC), Martin F. D’Souza v. Mohd. Ishfaq, I (2009) CPJ 32 (SC)=II (2009) SLT 20=157 (2009) DLT 391 (SC).

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We do not wish to burden this opinion by referring to all those decisions in detail. Certainly we would like to take into account the legal position which emerges from the said decisions. The Hon’ble Supreme Court on consideration of the above referred Foreign and Indian decisions in the case of Kusum Sharma & Others v. Batra Hospital, I (2010) CPJ 29 (SC)=II (2010) SLT 73, culled out the following principles:

“Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

(ii) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

(iii) The medical professional is expected to bring 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.

(iv) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

(v) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

(vi) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

(vii) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

(viii) It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

(ix) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

(x) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

(xi) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”