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REPORTABLEIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO.2641_ OF 2010(Arising out of SLP(C) No.15084/2009)V. Kishan Rao ..Appellant(s)VersusNikhil Super Speciality Hospital ..Respondent(s)& AnotherJ U D G M E N TGANGULY, J.1. Leave granted.2. This appeal has been filed challenging the judgmentand order dated 19.02.2009 of the National ConsumerDisputes Redressal Commission, New Delhi(hereinafter, ‘National Commission’) which upheld thefinding of the State Consumer Forum. The order of theNational Commission runs as follows:1
“Heard. The State Commission afterelaborate discussion has come to theconclusion that there was no negligenceon the part of the respondent doctor. Allpossible care was taken by the respondentin treating the petitioner. The StateCommission has also recorded a findingthat no expert opinion was produced bythe petitioner to prove that the line oftreatment adopted by the respondenthospital was wrong or was due tonegligence of respondent doctor.Dismissed”.3. The appellant, who happens to be the originalcomplainant, is an officer in the Malaria departmentand he got his wife admitted in the Respondent No. 1hospital on 20.07.02 as his wife was suffering fromfever which was intermittent in nature and wascomplaining of chill.4. In the complaint, the appellant further alleged thathis wife was subjected to certain tests by therespondent No.1 but the test did not show that shewas suffering from malaria. It was also alleged thathis wife was not responding to the medicine given bythe opposite party No.1 and on 22nd July, 2002 whileshe was kept admitted by respondent No.1. Saline wasgiven to her and the complainant had seen someparticles in the saline bottle. This was brought to2 V
the notice of the authorities of the respondent No.1but to no effect. Then on 23rd July 2002 complainant’swife was complaining of respiratory trouble and thecomplainant also brought it to the notice of theauthorities of the respondent No.1 who gaveartificial oxygen to the patient. According to thecomplainant at that stage artificial oxygen was notnecessary but without ascertaining the actualnecessity of the patient, the same was given.According to the complainant his wife was notresponding to the medicines and thus her conditionwas deteriorating day by day. The patient was finallyshifted to Yashoda Hospital from the respondent No.1.5. At the time of admission in Yashoda Hospital thefollowing conditions were noticed:“INVESTIGATIONSSmear for MP-Positive-ring forms &Gametocytes of P. Falciparam seenPositive index-2-3/100RBCSLFT-TB-1.5DB-1.0IB-0.5WIDAL test-NegativeHIV & HBsAG-NegativePT-TEST-22 secCONTROL-13 secAPTT-TEST-92 secCONTROL-38 secCBP-HB-3.8% gmsTLC-30.900/cumm3
RBC-1.2/cummHRP II-PositiveB urea-38 mg/dlS Creatinine-1.3 mb/dlS Electrolytes-NA/K/CL-148/5.2/103 mEq/LC X R – s/o ARDSCASE DISCUSSION45 yrs old of patient admitted in AMCwith H/o fever-8 days admitted 5 daysback in NIKHIL HOSPITAL & given INJMONOCEF, INJ CIFRAN, INJ CHOLROQUINEbecause of dysnoea today suddenly shiftedto Y.S.S.H. for further management. Uponarrival in AMC, patient unconscious, nopulse, no BP, pupils dilated. Immediatelypatient intubated & ambu bagging AMC &connected to ventilator. Inj. Atropine,inj. Adhenoline, inj. Sodabicarb given,DC shock also given. Rhyth restored at1.35 PM At 10.45 pm, patient developedbrady cardia & inspite of repeatedAltropine & Adhenolin. HR-‘O’ DC shockgiven. External Cardiac massage given. Inspite of all the resuscitative measurepatient could not be revived & declareddead at 11.30pm on 24.7.2002”.6. In the affidavit, which was filed by one Dr.Venkateswar Rao who is a Medical Practitioner and theManaging Director of the respondent No.1 before theDistrict Forum, it was admitted that patient wasremoved from respondent No.1 to the Yashoda Hospital
being accompanied by the doctor of the respondentNo.1. From the particulars noted at the time ofadmission of the patient in Yashoda Hospital it isclear that the patient was sent to Yashoda Hospital4
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in a very precarious condition and was virtually,clinically dead.7. On the complaint of the appellant that his wife wasnot given proper treatment and the respondent No.1was negligent in treating the patient the DistrictForum, on a detailed examination of the facts, cameto a finding that there was negligence on the part ofthe respondent No.1 and as such the District Forumordered that the complainant is entitled for refundof Rs.10,000/- and compensation of Rs.2 lakhs andalso entitled to costs of Rs.2,000/-.8. The District Forum relied on the evidence of Dr.Venkateswar Rao who was examined on behalf of therespondent No.1. Dr. Rao categorically deposed “Ihave not treated the case for malaria fever”. TheDistrict Forum found that the same is a clearadmission on the part of the respondent No.1 that thepatient was not treated for malaria. But the deathcertificate given by the Yashoda Hospital disclosedthat the patient died due to “cardio respiratoryarrest and malaria”. In view of the aforesaid findingthe District Forum came to the conclusion that the5 V
patient was subjected to wrong treatment and awardedcompensation of Rs.2 lakhs and other directions asmentioned above in favour of the appellant. TheDistrict Forum also noted when the patient wasadmitted in a very critical condition in YoshodaHospital the copy of the Haematology report dated24.7.2002 disclosed blood smear for malaria parasitewhereas Widal test showed negative. The DistrictForum also noted that the case sheet also does notshow that any treatment was given for Malaria. TheForum also noted that the respondent-authorities,despite the order of the Forum to file the casesheet, delayed its filing and there were overwritings on the case sheet. Under these circumstancesthe District Forum noted that case records go to showthat wrong treatment for Typhoid was given to thecomplainant’s wife. As a result of such treatment thecondition of the complainant’s wife became seriousand in a very precarious condition she was shifted toYashoda Hospital where the record shows that thepatient suffered from malaria but was not treated formalaria. Before the District Forum, on behalf of therespondent No.1, it was argued that the complaintsought to prove Yashoda Hospital record without6 V
following the provisions of Sections 61, 64, 74 and75 of Evidence Act. The Forum overruled theobjection, and in our view rightly, that complaintsbefore consumer are tried summarily and Evidence Actin terms does not apply. This Court held in the caseof Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee andothers reported in (2009) 9 SCC 221 that provisionsof Evidence Act are not applicable and the Fora underthe Act are to follow principles of natural justice(See paragraph 43, page 252 of the report).9. Aggrieved by the order of the District Forumrespondent No. 1 preferred an appeal to the StateConsumer Disputes Redressal Commission (FA No. 89 of2005) and the insurance company, which is respondentno. 2 before this Court, preferred another appeal (FAno. 1066 of 2005). The State Forum vide its orderdated 31.10.2008 allowed the appeals.10. In doing so the State Commission relied on a decisionin Tarun Thakore vs. Dr. Noshir M. Shroff (O.P. No.215/2000 dated 24.9.2002) wherein the NationalCommission made some observations about the duties ofdoctor towards his patient. From those observations7
it is clear that one of the duties of the doctortowards his patient is a duty of care in decidingwhat treatment is to be given and also a duty to takecare in the administration of the treatment. A breachof any of those duties may lead to an action fornegligence by the patient. The State Forum alsorelied on a decision of this Court in Indian MedicalAssociation vs. V.P. Shantha & others – (1995) 6 SCC651.11. Relying on the aforesaid two decisions, the StateForum found that in the facts and circumstances ofthe case, the complainant failed to establish anynegligence on the part of the hospital authoritiesand the findings of the District Forum wereoverturned by the State Commission. In the order ofthe State Commission there is a casual reference tothe effect that “there is also no expert opinion tostate that the line of treatment adopted by theappellant/opposite party No.1 Hospital is wrong or isnegligent”.12. In this case the State Forum has not held thatcomplicated issues relating to medical treatment have8
been raised. It is not a case of complicated surgeryor a case of transplant of limbs and organs in humanbody. It is a case of wrong treatment in as much asthe patient was not treated for malaria when thecomplaint is of intermittent fever and chill. Insteadthe respondent No.1 treated the patient for Typhoidand as a result of which the condition of the patientdeteriorated. When the condition became very verycritical the patient was removed to Yashoda Hospitalbut patient could not be revived.13. In the opinion of this Court, before forming anopinion that expert evidence is necessary, the Foraunder the Act must come to a conclusion that the caseis complicated enough to require the opinion of anexpert or that the facts of the case are such that itcannot be resolved by the members of the Fora withoutthe assistance of expert opinion. This Court makes itclear that in these matters no mechanical approachcan be followed by these Fora. Each case has to bejudged on its own facts. If a decision is taken thatin all cases medical negligence has to be proved onthe basis of expert evidence, in that event theefficacy of the remedy provided under this Act will9 V
be unnecessarily burdened and in many cases suchremedy would be illusory.14. In the instant case, RW-1 has admitted in hisevidence that the patient was not treated formalaria. Of course evidence shows that of theseveral injections given to the patient, only one wasof Lariago. Apart from Lariago, several otherinjections were also administered on the patient.Lariago may be one injection for treating malariabut the finding of Yashoda Hospital which has beenextracted above shows that smear for malarialparasite was positive. There is thus a definiteindication of malaria, but so far as Widal test wasconducted for Typhoid it was found negative. Even insuch a situation the patient was treated for Typhoidand not for malaria and when the condition of thepatient worsened critically, she was sent to YashodaHospital in a very critical condition with no pulse,no BP and in an unconscious state with pupilsdilated. As a result of which the patient had to beput on a ventilator.10 V
