Judgment:
Per Justice Shri B.B. Vagyani, Honble President
1. Feeling dissatisfied with the dismissal order dated 25/11/1998 passed by District Consumer Forum, Raigad, original complainant in consumer complaint no.38/1994 has come up in appeal.
2. We heard Ld.Advocate Mr.S.B.Sharma for the appellant and Mr.A.V.Patwardhan-Advocate for the respondent.
3. Complainant levelled serious allegations of medical negligence against Ayurvedic doctor, who is respondent herein. Respondent has completed Ayurvedic Diploma from Ashtang Ayurvedic Mahavidyalaya, Pune. He is therefore competent to practice Ayurved. He has gained proficiency in the treatment of jaundice.
4. Prabhavati wife of present appellant fell sick in January 1993. Appellant took her to his Family doctor Dr.T.D.Mehata. He examined her and diagnosed that she was suffering from jaundice. He therefore, asked the appellant to take his wife to the respondent, who is well known in the treatment of jaundice. Respondent examined Prabhavati and at the initial stage did not suspect jaundice. He started his treatment. Later on he told appellant that jaundice was brought under control. However, disease was not brought under control. Respondent at the last stage advised the appellant to take Prabhavati to KEM Hospital, Pune. Prabhavati was therefore taken to KEM hospital for treatment. She was admitted in KEM Hospital on 11/3/1993. She expired on 21/3/1993. According to complainant there was no proper diagnosis by the respondent. The respondent did not advise to shift patient to KEM hospital well in time. It is also case of the appellant that the respondent had assured him that he would cure disease.
5. The respondent filed written statement and resisted the consumer complaint. The appellant did not place on record any expert opinion. District Consumer Forum therefore by impugned order, dismissed the complaint. It is material to note that Family doctor of the appellant did not give any treatment to Prabhavati, instead he advised appellant to take Prabhavati to the respondent for Ayurvedic treatment. It is a fact that respondent had given Ayurvedic medical treatment to Prabhavati. He did not prescribe any allopathic drug. He prescribed Ayurvedic medicine. It is also found from the material placed on record that the respondent advised appellant to shift Prabhavati to KEM Hospital, Pune when there was no improvement. Prima facie, respondent gave proper treatment and prescribed proper Ayurvedic medicines. He did all possible things at his command. It is material to note that the appellant did not place on record expert opinion. In absence of experts opinion, it is rather difficult to hold that the medical treatment administered by the respondent was faulty.
6. A reference with profit can be made to recent decision of Honble Supreme Court in the case of Martin F. DSouza V/s. Mohd. Ishfaq (II) (2009) SLT 20. The Supreme Court in para 35 of the judgement has observed that two principle things are required to be kept in mind before dealing with the issue with regard to medical negligence. These two principle things are as under:-
â1. 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 there 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 judgement, but if they are punished for this, no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhabit the free exercise of judgement by a professional in a particular situation.â
7. A reference with profit can be made to a decision in Bolams case i.e. Bolam V/s. Friern Hospital Management Committee (1957) 1 WLR 582 âwhere you get a situation which involves the use of some special skill or competence, then the test has to whether there has been negligence or not is not a 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. The Bolams test has been approved by the Supreme Court in Jacob Mathews case (Jacob Mathew V/s State of Punjab and another III (2005) CCR 9 (SC).
8. The Supreme Court has also observed in para 41 of the judgement that a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference to another. He would be liable only whether his conduct fell below that of the standards of a reasonably competent practitioner in his field.
9. Supreme Court further observed that there is a tendency to confuse a reasonable person with an error free person. An error of judgement may or may not be negligent. It depends on the nature of error. The true test of 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 an ordinary care. Standard of care has to be judged in the light of knowledge available at the time of incident and not at the date of the trial.
10. In para 49 of the judgement, Supreme Court further observed that when a patient dies or suffers from mishap, there is a tendency to blame a doctor for this. Things have gone wrong and therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures.
11. The appellant miserably failed to establish the correctness of his allegations. It is very easy to level serious allegations of medical negligence against a doctor. However, it is very difficult to prove medical negligence. The appellant has not made any attempt to prove medical negligence by placing on record expert opinion. In the appeal memo, it is stated that experts opinion is not necessary. This proposition is not correct. For want of expert evidence the District Consumer Forum dismissed the complaint. Dismissal order is perfectly legal and correct. Appeal filed by the appellant is without any merits. In the result, we pass following order:-
Order:
Appeal stands dismissed with cost of Rs.1000/-.
Copies of the order be furnished to the parties.