Dr KK Aggarwal
& Advocate Ira Gupta
In the
matter titled as “Dr. S. K.
Jhunjhunwala versus Mrs. Dhanwanti Kumar & Anr., the Hon’ble Supreme Court
of India vide judgement dated 01.10.2018 has held that simply
proving the suffering of ailment by the patient after the surgery does not
amount to medical negligence. The doctor can be held for medical negligence
only if the suffering of any such ailment is because of improper performance of
the surgery and that too with the degree of negligence on the part of the
doctor.
Facts of the case: Mrs. Dhanwanti Kumar
(patient) had filed the consumer complaint case claiming compensation for the
loss, mental suffering and pain suffered by her throughout after the surgery on
account of negligence of the appellant in performing the surgery of her Gall
Bladder on 08.08.1996.
She complained that firstly she had never given her
consent for performing general Surgery of her Gall Bladder rather she had given
consent for performing laparoscopy Surgery only but the doctor performed
general surgery of her Gall Bladder which resulted in putting several stitches
and scars on her body.
Secondly, even the surgery performed was not
successful inasmuch as the patient thereafter suffered for several days with
various ailments, such as dysentery, loss of appetite, reduction of weight,
jaundice etc.,
Thirdly, in June 1997, she was, therefore, required
to undergo another Surgery in Ganga Ram Hospital, Delhi for removal of stones
which had slipped in CBD. It was alleged that all these ailments were incurred
due to the negligence of the doctor, who did not perform the surgery properly
and rather performed the surgery carelessly leaving behind for the patient only
mental agony, pain, harassment and money loss and hence she filed a complaint
to claim the reasonable amount of compensation under various heads as mentioned
above.
Doctor filed his reply and stated in his reply that
he, after examining the patient No.1, advised her to go for surgery of Gall
Bladder, which may even include removal of Gall Bladder. It was stated that
consent of patient for performing the laparoscopic cholecystectomy was duly
obtained before performing the surgery.
Doctor stated that after starting laparoscopic
surgery, he noticed swelling, inflammation and adhesion on her Gall Bladder
and, therefore, he came out of the Operation Theater and disclosed these facts
to patient's husband and told him that in such a situation it would not be
possible to perform laparoscopic surgery and only conventional procedure of
surgery is the option to remove the malady. The husband of patient agreed for
the option suggested by the doctor and the doctor accordingly performed
conventional surgery. The patient was discharged after spending few days in the
Hospital for postoperative care.
Doctor, therefore, denied any kind of negligence or
carelessness or inefficiency on his part in performing the surgery on the
patient and stated that all kinds of precautions to the best of his ability and
capacity, which were necessary to perform the surgery were taken by him and by
the team of doctors that worked with him in all such operational cases.
Judgment of the Court
44. In our opinion, there
has to be a direct nexus with these
two factors to sue a doctor for his negligence.
Suffering of ailment by the patient after surgery
is one thing. It may be due to myriad reasons
known in medical jurisprudence. Whereas suffering
of any such ailment as a result of improper
performance of the surgery and that too with the
degree of negligence on the part of Doctor is
another thing. To prove the case of negligence of a doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient.
45. In our considered
opinion, respondent No. 1 was not
able to prove that the ailments which she suffered
after she returned home from the Hospital on
08.08.1996 were as a result of faulty surgery performed by the appellant.
48. In the light of the
detailed discussion made above on
the issues arising in the case including the issue of grant of consent, we are unable to accept the aforesaid submissions of learned counsel for respondent No.1.
49. It is apt to remember
the words of the then Chief Justice
of India when he said in Jacob Mathew’s case (supra)
which reads as under:
“The
subject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to
punish. Things
have gone wrong and therefore somebody must be found to answer for it. An empirical study reveals that background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The
inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor’s contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with
the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against eh operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical
practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission,
if negligent,
is to make life safer and to eliminate the possibility of recurrence of
negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.”
Dr KK Aggarwal
Padma
Shri Awardee
President Elect Confederation of Medical Associations in Asia and Oceania (CMAAO)
Group
Editor-in-Chief IJCP Publications
President
Heart Care Foundation of India
Immediate Past National President IMA
No comments:
Post a Comment