TMI Blog2022 (11) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. Counsel for the Appellants submitted that the nursing home/hospital where the patient was admitted for post-operative care, was not registered under the provisions of the Act 1994. With the assistance of the counsel for the parties, we have gone through the Scheme of the Act 1994 and the Rules made thereunder. The hospitals where the procedure of transplantation is undertaken are to be registered in terms of Section 14 of the Act 1994, but for postoperative care, particularly after the patient being discharged from the hospital where the procedure of transplantation has taken place, we have not come across any provision under the Act, 1994 where such hospitals are required to be registered under the Act 1994. There are no fault in the reasoning of the Commission, as a result, the appeal is without substance and deserves to be dismissed - appeal dismissed. - CIVIL APPEAL NO(s).6507 OF 2009 - - - Dated:- 20-4-2022 - MR. AJAY RASTOGI AND ABHAY S. OKA, JJ. Petitioner's Advocate : T. V. S. RAGHAVENDRA SREYAS Respondent's Advocate : VIKAS MEHTA JUDGMENT The sad demise of husband of Appellant No. 1 after his long illness on 3rd February, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their respective fields and after the medical condition of Naveen Kant was reviewed by OP No. 1, he was discharged from OP No. 6 hospital on 24th November, 1995. It may be relevant to note that the doctors who had conducted kidney transplant of the patient have conducted more than 900-1000 renal transplants with good results, but there are cases where patient died even after successful kidney transplant for various reasons which cannot be even under the control of the doctors. 4. It reveals from the record that despite all post operative medical treatment and follow up care of the patient under the supervision of medical experts, still the destiny could not save him and he finally died on 3rd February, 1996. 5. The complaint of the Appellants was that while Naveen Kant was discharged from OP No. 6 hospital on 24th November, 1995, he was asked to attend as an outdoor patient for dressing of the wound at the place of incision, but his complaint throughout was that while he was in ICU, he had a pain in his left forearm where intravenous drugs were injected and at the given time, he was assured that the pain would subside in due course of time and as and when OP No. 1 came for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , wherein it was stated that Respondent No. 1 who was a treating doctor(OP No. 1) is a Senior Nephrologist who did M.D. (General Medicines) at Stanley Medical College in 1968 and after doing his D.M. in 1977 from PGI Chandigarh, he exclusively worked and performed kidney transplantation in Government hospitals and also disclosed his professional skill which he has developed, particularly in the field of kidney transplantation and so also, the other doctors, OP No. 2 Dr. S. Shivakumar and OP No. 5 Dr. P.S. Venkateswaran were also the expert doctors in performing kidney transplantation and have a rich professional experience and as regards OP No. 6 hospital, where kidney transplantation was performed, it was duly registered hospital under the Act, 1994 and is a fully equipped hospital for transplantation and patient Naveen Kant after successful surgery of the kidney transplantation and after 12 days in ICU with all medical protocols followed and taking into consideration his overall health, discharged on 24th November, 1995. 9. It is further stated that the hospital records for the period 10th November to 24th November, 1995, the sequence of events relating to the immediate post T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bal Hospital at Andheri (West), Mumbai, admittedly passed out his MBBS examination in the year 1974 and only performed general surgery during his tenure in the Army and later left the Army and served as Surgeon in Bareilly and later became a Surgeon in BSES Hospital, Andheri (West), Mumbai, although stated in his affidavit obviously based on the case sheet of the patient that the Respondents have not taken post operative care of the patient and have failed to control and treat infection that has manifested itself in the form of persistent pain in the left forearm of the patient at the place where a needle had been inserted for injection of drugs in the OCU of OP No. 6. Timely and adequate medical intervention was absent in post operative medical treatment to the patient and also opinion was expressed by him regarding the drugs administered to the patient and also stated about the time the patient was discharged after 12 days of his surgery and rehospitalization of the patient in OP No. 4 hospital on 21st December, 1995 which was not a registered hospital under the Act, 1994 and the patient should have been admitted in OP No. 6 hospital which was registered where the kidney transpla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, increase in total count (leucocytes) is a common phenomenon in most of the renal transplant recipients, who have been administrated Corticosteroids. Sometimes, rise in total counts does not per se mean infection but there is no reason to conclude that the patient ought not to have been discharged after 12th day of surgery. It is also stated that leucocyte count will not rise in the post transplant period in absence of any infection that only proves lack of experience and medical knowledge of renal transplant. The witness has further stated that on 30th November 1995, when the patient was diagnosed cellulitis/abscess, injection Reflin was administered by OP No. 1 which was the best medicine for cellulitis and it is a common practice to use this drug in such a situation. It was further stated by him that medical science is not an exact science like mathematics and in medical science experience of doctor treating the patient is important. It has been further averred by him that most transplant patients having fever are treated with drugs like Amikacin and Ciprofloxacin to cover a broader spectrum of organisms in the absence of definitive evidence of organism causing fever. It h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotocols subsumed thereunder, including follow up care and that according to the Appellants is a medical negligence on the part of the Respondents in extending treatment to the patient Naveen Kant and being the case of post operative negligence, they have lost their patient on 3rd February, 1996. 19. Counsel for the Appellants further submitted that the patient was consistently complaining after he being successfully operated on 12th November, 1995 and shifted to the ICU for pain in the left forearm where intravenous drugs were injected to him and when the patient was attended by OP No. 1 for review, he reiterated his complaint of pain in the left forearm and still he was discharged from the hospital on 24th November, 1995. Later, the patient noticed the onset of cellulitis and recurrence of abscess being at other points, still the doctors have not taken his complaint seriously and conducted investigations into the cause of pain and later he developed severe headache, coupled with loss of proper vision in the right eye and started vomiting. These facts can be supported by the prescription chart of the patient and that was the reason for which the patient was again admitted in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce available at their command but merely because they could not save the patient, that could not be considered to be a case of post operative medical negligence despite the fact that medical protocol administered by them was duly supported by the two medical experts of the field who appeared on behalf of the Respondents, Dr. S. Sundar and Dr. Arun Kumar, and nothing elicits from the cross-examination made by the Appellants. In the given circumstances, the findings which has been returned by the Commission needs no further interference by this Court. 22. We have heard learned Counsel for both the parties and with their assistance perused the material placed on record. In order to appreciate the opinion of the Commission, it will be apposite to take note of the legal principles which would apply in the case of medical negligence. 23. In the case of medical negligence, this Court in Jacob Mathew v. State of Punjab and Anr. - (2005) 6 SCC 1 dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution but there could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. xxx xxx xxx (4) The test for determining medical negligence as laid down in Bolam case [(1957) 2 All ER 118 (QBD), WLR at p. 586] holds good in its applicability in India. xxx xxx xxx (8) Res ipsa loquitur is only a Rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the standards of a reasonably competent practitioner in his field. 28. The term negligence has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in the follow-up care, at any point of time by the treating doctors or anyone else, it is always open to be considered by the Courts/Commission taking note of the exposition of law laid down by this Court of which a detailed reference has been made and each case has to be examined on its own merits in accordance with law. 29. Adverting to the facts of the instant case, the treating doctors, OP Nos. 1, 2 and 5 all are academically sound and experts in the field of kidney transplantation. Respondent Nos. 1, 2 and 5 had disclosed their qualifications of which a detailed discussion is not required and their medical expertise in the field of nephrology and surgery in kidney transplantation has not been doubted by the Appellants. It is also not the case of the Appellants that the patient was not medically treated by the well-qualified doctors at the time when kidney transplant surgery was undertaken on 12th November, 1995 by the team of doctors including OP Nos. 1, 2 and 5 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants before the Commission. 33. After going through the findings which have been returned by the Commission in the order impugned, we see no reason to differ with the view expressed by the Commission keeping in mind the tests enunciated above. Taking note of the fact that treating doctors, OP Nos. 1, 2 and 5 are medical experts in the field of nephrology and so far as OP No. 6 hospital where the patient was admitted for transplantation was duly registered under the Act, 1994 and all post operative medical care protocol available at the command of the Respondents was administered to the patient, still his physical condition deteriorated and finally he could not be saved, which is really unfortunate, but there cannot be a legal recourse to what is being acceptable to the destiny. 34. In our opinion, the Commission has not committed any manifest error in arriving to a conclusion that in post operative medical negligence or follow up care, there was no negligence being committed by the Respondents which may be a foundation for entertaining the complaint filed by the Appellants. In consequence thereof, the judgment of the Commission does not call for any interference by this ..... 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