Bijoy Sinha Roy (D) By Lr. vs Biswanath Das .

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).4761 OF 2009

BIJOY SINHA ROY (D) BY LR. APPELLANT(S)

VERSUS

BISWANATH DAS & ORS. RESPONDENT(S)

WITH

C.A. Nos. 4762-4763 of 2009

O R D E R

1. These appeals arise out of order of the National

Consumer Disputes Redressal Commission (NCDRC) dated

12.09.2007 in First Appeal Nos.44 of 2006, 462 of 2005 and

463 of 2005 dismissing the complaint of the appellant (now

represented by legal heirs) by reversing the order of the

State Commission whereby compensation was awarded to him

for medical negligence, resulting in death of his wife

Bijoy Sinha Roy.('the deceased').

Signature Not Verified Digitally signed by

2. The deceased had some menstrual problem in June, 1993. SWETA DHYANI Date: 2017.09.01 10:31:19 IST Reason: She consulted Dr. Bishwanath Das, respondent No.1, a

Gynecologist on advise of her family physician, 2

Dr. Pransankar Shah. It was found that she had multiple

fibroids of varying sizes in uterus. She was advised to

undergo Hysterectomy. After about five months, she had

severe bleeding and was advised emergency Hysterectomy at

Ashutosh Nursing Home. She was also suffering from high

blood pressure and her hemoglobin was around 7 gm% which

indicated that she was anemic. The treatment was given for

the said problems but without much success. Finally,

operation was conducted on 01.12.1993 at about 8.45 A.M.

She did not regain consciousness and since the Nursing Home

did not have the ICU facility, she was shifted at 2.15 PM

to Repose Nursing Home and thereafter to SSKM Hospital

where she died on 17th January, 1994.

3. The appellant filed a complaint before the State

Commission on 16th June, 1994. The appellant’s case was two

fold. Firstly, the decision to perform surgery without

first controlling blood pressure and hemoglobin amounted to

medical negligence. The surgery was not an emergency but a

planned one and conducted six months after the disease

first surfaced. Secondly, having regard to the forceable

complications, the decision to perform surgery at a nursing

home which did not have the ICU for post operative needs

also amounted to medical negligence.

4. The opposite parties contested the complaint. Their

plea was that in the given situation, the surgeon was

entitled to make a choice and to take the risk. If it was 3

not possible to stop the bleeding without performing the

surgery, the surgeon rightly decided to do so. This

decision cannot be held to be medical negligence. As

regards the forcibility of risk in performing surgery at a

nursing home which did not have ICU even when better places

were available nearby, no specific reply was given.

5. Since the second aspect has been pressed more

seriously, it may be appropriate to quote the pleadings in

this regard :

“That Dr. Biswanath Das arranged and selected Ashutosh Nursing Home (Manimala Matri Mandir) as the place of operation of the complainant’s wife and thereby directed the complainant to make necessary arrangements at the Ashutosh Nursing Home for operating on the wife of the complainant, knowing fully well that the Ashutosh Nursing Home (Manimala Matri Mandir) did not have the proper facilities to cope with the post operative emergency situation of a patient. On 1st December, 1993, the condition of the wife of the complainant deteriorated to such an extent that there was urgent need to transfer her to the Intensive Unit and keep her under observation. But when the complainant requested Dr. P.K. Mukherjee, the proprietor of Ashutosh Nursing Home (Manimala Matri Mandir) to transfer the wife of the complainant to the Intensive Therapy Unit he was shocked to learn that there was no ITU facilities because at the time of admission Dr. Mukherjee had categorically stated to the complainant that all the best medical facilities would be provided which in fact was not so. Wherefore the aforesaid act on the part of Dr. Biswanath Das in insisting on land selecting Ashutosh Nursing Home (Manimala Matri Mandir) for operating on the complainant’s wife is a sheer act of professional and monetary greed in order to procure his commission from the Proprietor of the said Nursing Home in lieu of admitting patients. This fact also aggravates the willful, rash, negligence and deliberate act on the part 4

of Dr. Biswanath Das which is also one of the causes of the untimely death of the complainant’s wife inasmuch as if the said Nursing Home had an ITU the wife of the complainant could have been removed to the said Unit at the earliest possible opportunity and at least an attempt could have been made to save her life.

Dr. Biswanath Das did not bother to take initiative to get himself involved in transferring the case to the Repose Nursing Home when the patient’s (i.e. the wife of the Complainant) condition was critical. Dr. Biswanath Das also did not meet the relative of the wife of the complainant to inform the progress of the patient which is unethical to the Medical Profession.”

6. In reply to the above averments, the stand of OP No.1

was as follows :

“With reference to the allegations made in paragraph 27 of the said show cause notice I crave leave to make my submissions at the time of hearing.”

7. The State Commission, vide order dated 19 th September,

2005, held that there was medical negligence as surgery was

conducted without controlling the blood pressure and

hemoglobin. The State Commission held :-

“We fail to understand what prompted these two doctors the OP No.1 and 2 to be so doggedly persistent in holding the operation immediately and for that purpose to apply anaesthesia. We fail to understand what prevented them from stopping the drive for the time being and halting the operation for little time and pausing for a while, pondering over what was happening to the system of the patient and trying to restore her haemaglobin and reduce her blood pressure to the permissible limit. Heaven would not fall if they postponed the operation for some time. The Ops. Have not been able to make out any cause that the operation 5

was extra urgent and it did not brook any further delay. Their plea that operation was urgent in order to give a go-by to the source of bleeding has not been put in writing anywhere in the prescription or any other medical paper, nor it has been shown that the surgeon or the anaesthetist discussed this aspect with the patient party or made them aware of such an emergent need. Admittedly there was no malignancy in the Fibroid tumors in question (vide the Biopsy report). It is therefore not understood exactly what was driving these doctors to hold the operation then and there with all their vehemence. The patient had been admitted only on the previous date. They had the opportunity to watch the Blood Pressure and Haemoglobin chart only for few hours. What would have been the wrong if they deferred the operation for the time being to observe the condition of the patient for some time more.” xxxxxx “In the result it is, ordered, that the complaint be allowed on contest against O.P.No.1 and 2 with litigation cost of Rs. 10,000/- (rupees ten thousand) only to be paid by these two Ops. The O.P.No. 1 shall pay a sum of R s.3 (three) Lakhs and O.P. No.2 shall pay a sum of Rs. 2 (two) lakhs to the complainant as compensation. All the payments shall be made within 60(sixty) days from the date of service of copy of this order failing which the amount shall carry interest at the rate of 8% per annum for the period of default.” xxxxxx

8. The complainant as well as the opposite parties

preferred appeals. The National Commission reversed the

above finding as follows:-

“Aforementioned medical literature submitted by OP Nos. 1 and 2 which was also before the State Commission, would show that the surgical procedure could be done on a patient with diastolic blood pressure of not more than 110 mn Hg and hemoglobin concentration of even up to 6 g/dl. However, the opinion given in medical literature submitted on behalf of complainant 6

contradicts that statement. To be only noted that on 30.11.1993 and before start of procedure on 1.12.1993 the BP of the deceased was 180/100. In view of the statement made in Halsbury's Laws of England (para 21) and the decisions referred to in para No.23 in Jacob Mathew's case the OP Nos. 1 and 2 who acted in accordance with the practice accepted as proper by the authors of aforesaid books relief on their behalf cannot be held guilty of negligence. Judge's preference of the opinion expressed in the books cited on behalf of OP Nos. 1 and 2 would not be sufficient to establish negligence against OP Nos. 1 and 2. Obviously, the approach of the State Commission, extracted above, in discarding the said medical literature filed on behalf of the Ops and in declining to accept the evidence of Dr. S.M.Basu, Expert, is erroneous. In the criminal Case, the opposite parties have been acquitted and the opinion as to cause of death of Mrs. Bani Sinha Roy given by Dr. Apurba Nady was not accepted by the criminal Court. Both the Ops are highly qualified. It may be stated that according to OP No. 1, the procedure performed was not elective as the deceased was having severe bleeding. Finding returned by the State Commission holding OP Nos. 1 and 2 to be negligent cannot be legally sustained.”

9. We have heard learned counsel for the parties.

10. Question for consideration is whether the National

Commission applied the right test for holding that there

was no medical negligence in the decision of the surgeon to

perform surgery. Further question is whether the choice of

nursing home to perform surgery amounted to negligence as

requirement of ICU was a clear forcibility and centres with

ICU were available nearby.

Test to determine medical negligence

11. Negligence is breach of duty caused by omission to do 7

something which a reasonable man would do or doing

something which a prudent and reasonable man would not do.

Negligence in the context of medical profession calls for a

treatment with a difference. Error of judgment or an

accident is not proof of negligence. So long as doctor

follows a practice acceptable to the medical profession of

the day, he cannot be held liable for negligence merely

because a better alternative course was available. A

professional may be held liable for negligence if he does

not possess the requisite skill which he claims or if he

fails to exercise reasonable competence. Every professional

may not have highest skill. The test of skill expected is

not of the highest skilled person. Concept of negligence

differs in civil and criminal law. What may be negligence

in civil law may not be so in criminal. In criminal law,

element of mens rea may be required. Degree of negligence

has to be much higher. Res ipsa loquitur operates in domain

of civil law but has limited application on a charge of

criminal negligence1.

12. These principles have been laid down by a Bench of

three-Judges and continue to hold the field. This Court has

also held that safeguards were necessary against initiation

of criminal proceedings against medical professionals and

till such safeguards are incorporated by the State,

direction of this Court will operate to the effect that the

1 Jacob Mathew versus State of Punjab (2005) 6 SCC 1, para 48 8

private complaint will not be entertained unless credible

opinion of another competent doctor in support of the

charge of rashness was produced. The Investigating Officer

must obtain independent and competent medical opinion

preferably from a doctor in Government service, qualified

in the concerned field in the light of judgment in Jacob

Mathew (supra). A medical professional may not be arrested

in a routine manner2.

13. In Martin F.D’Souza versus Mohd. Ishfaq3, this Court

observed that uncalled for proceedings for medical

negligence can have adverse impact on access to health.

While action for negligence can certainly be maintained,

there should be no harassment of doctors merely because

their treatment was unsuccessful. This Court directed that

the consumer fora must proceed with any complaint only

after another competent doctor or Committee of doctors

refers that there was a prima facie case. In V. Krishan

Rao versus Nikhil Super Speciality Hospital4, this

direction was however, held to be inconsistent with the

binding judgment in Jacob Mathew (supra). It was held that

there was obvious jurisprudential and conceptual

differences between the cases of negligence of civil and

criminal matters. Protection of the medical professionals

on the one hand and protection of the consumer on the other

are required to be balanced.

2 Para 50 ibid 3 (2009) 3 SCC 1 4 (2010) 5 SCC 513, para 33 9

14. In view of the legal position discussed above, we are

of the view that the National Commission was justified in

holding that decision to perform surgery may not by itself

be held to be medical negligence.

15. We however, find that neither the State Commission nor

the National Commission have examined the plea of the

appellant that the operation should not have been performed

at a nursing home which did not have the ICU when it could

be reasonably foreseen that without ICU there was post

operative risk to the life of the patient. There was no

serious contest to this claim by the opposite parties.

Having regard to the fact that the matter has been pending

for the last 23 years, instead of remanding the matter for

fresh adjudication on this issue, we consider it

appropriate in the interests of justice to direct the

opposite party No.1 to pay a sum of Rs.5 lakh to the heirs

of the appellant without any interest. The amount be

deposited with the State Commission within 3 months for

being disbursed to the appellants. If deposit is beyond 3

months, the amount will carry interest @ 12% p.a.

16. Before parting with this order, it is necessary to

refer to another important aspect relating to

administration of justice by the Consumer Fora. A person

coming to a consumer Court with a grievance of deficiency

in service needs immediate relief. The very object of

setting up Consumer Fora was to provide speedy remedy to a 10

consumer. The Consumer Protection Act, 1986 (the Act) was

brought about in the background of world wide movement for

consumer protection. Framework of the Act is based on

Resolution dated 9th April, 1985 of the General Assembly of

the UN to which India was a signatory5. The Act provided

for protection of interests of consumers in the form of

quick and speedy redressal of grievances. The provisions

of the Act are in addition to and not in derogation of any

other law. Thus, the Act provides for additional remedies.

The authorities under the Act exercise quasi-judicial

powers. The award of damages is aimed at bringing about

qualitative change in the attitude of service provider6.

17. In the light of above scheme and object of the Act,

following issues have emerged during the hearing with

regard to functioning of Consumer Fora :

(i) Need to monitor speedy resolution of disputes;

(ii) Need to avail of ADR mechanism which is now

regarded as part of access to justice.

18. To achieve the object of providing speedy remedy to a

consumer steps can be taken under Section 24B of the Act.

The National Commission has administrative control over all

the State Commissions. Thus, the National Commission is

competent to introduce monitoring mechanism for speedy

disposal. It is well known that matters are pending at 5 V. Krishna Rao (supra) Para 43 6 Nivedita Sharma versus Cellular Operators Assn. of India (2011) 14 SCC 337, paras 18 to 21 11

different levels for sufficiently long period which defeats

the very object and purpose of the Act. We request the

National Commission to consider this aspect and formulate

an appropriate action plan. In this regard, we may refer

to a recent decision in Hussain versus State of U.P.7 by

which directions for action plans have been issued. The

National Commission may also consider use of video

conferencing facility for examining expert witnesses

wherever necessary8.

19. The other aspect relates to use of ADR. By Act 46 of

1999, Section 89 has been added to CPC laying down

mechanism for settlement of disputes outside the Court.

Even though strictly speaking, the said provision is

applicable only to civil courts, there is no reason to

exclude its applicability to Consumer Fora having regard to

the object of the said provision and the object of the

consumer protection law. Accordingly, we are of the view

that the said provision ought to be duly invoked by the

Consumer Fora. We request the National Commission to issue

appropriate directions in this regard9.

20. It will be open to the National Commission and the

State Commission to coordinate with the National Legal

Services Authority and the State Legal Services Authorities 7 (2017) 5 SCC 702, para 22 8 See observations in Krishna Veni (2017) 4 SCC 150, para 14 9 See observations of this Court on the issue of remedy of mediation in Salem Advocate Bar Association, T.N. versus UOI (2003) 1 SCC 49, para 9-10; Salem Advocate Bar Association, T.N. versus UOI (2005) 6 SCC 344, para 53; Afcons Infrastructure Ltd. v. Cherian Varkey Construction Company Pvt. Ltd. (2010) 8 SCC 23, para 28, 43-45; Moti Ram (dead) through Lrs. vs. Ashok Kumar (2011) 1 SCC 466; Vikram Bakshi & Ors. versus Sonia Khosla (Dead) by Legal Representatives (2014) 15 SCC 80, para 16-20 12

under the Legal Services Authority Act, 1987.

21. The appeals are disposed of accordingly.

..........................J. [ADARSH KUMAR GOEL]

..........................J. [UDAY UMESH LALIT]

NEW DELHI 30TH AUGUST, 2017 13

ITEM NO.101 COURT NO.11 SECTION XVII

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 4761/2009

BIJOY SINHA ROY (D) BY LR. Appellant(s)

VERSUS

BISWANATH DAS . & ORS. Respondent(s)

WITH C.A. Nos. 4762-4763/2009 (XVII) Date : 30-08-2017 These appeals were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE UDAY UMESH LALIT

For Appellant(s) Mr. P.N. Mishra, Sr. Adv.

Mr. Suchit Mohanty, Adv.

Mr. Anupam Lal Das, AOR

For Respondent(s) Mr. Vikram Jeet Banerjee, Sr. Adv.

Mr. Senthil Jagadeesan, AOR

Ms. Madhumita Bhattacharjee, AOR

Mr. Sanjay K. Ghosh, Adv.

Ms. Rupali S. Ghosh, Adv.

Mr. Avijit Bhattacharjee, AOR

UPON hearing the counsel the Court made the following O R D E R

The appeals are disposed of in terms of signed reportable order.

Pending applications, if any, shall also stand disposed of.

(SWETA DHYANI) (PARVEEN KUMARI PASRICHA) SENIOR PERSONAL ASSISTANT BRANCH OFFICER

(Signed reportable order is placed on the file)