ALLEGATIONS OF NEGLIGENCE
(2009)
7 SCC 330 : JT 2009 (7) SC 527 : (2009) 8 SCALE 601 : (2009) 9 SCR 889
(SUPREME
COURT OF INDIA)
Post
Graduate Institute of Medical Education and Research,
Chandigarh —Appellant
Versus
Jaspal Singh and others —Respondent
Versus
Jaspal Singh and others —Respondent
D.
K. Jain and R. M. Lodha, JJ.
Civil
Appeal No. 7950 of 2002; Decided on : 29-05-2009
Consumer
Protection Act, 1986 — Section — 21 — negligence in the discharge of service — The
term negligence is often used in the
sense of careless conduct — In civil proceedings, a mere preponderance of
probability is sufficient, and the defendant is not necessarily entitled to the
benefit of every reasonable doubt; but in criminal proceedings, the persuasion
of guilt must amount to such a moral certainty as convinces the mind of the
Court, as a reasonable man, beyond all reasonable doubt — It needs no emphasis
that in the medical negligence actions, the burden is on the claimant to prove
breach of duty, injury and causation. The injury must be sufficiently proximate
to the medical practitioner's breach of duty. In the absence of evidence to the
contrary adduced by the opposite party, an inference of causation may be drawn
even though positive or scientific proof is lacking — It is true that patient
hemoglobin was brought up in few days but her condition otherwise got
deteriorated. Although she survived for about 40 days after mismatched blood
transfusion but from that it cannot be said that there was no causal link
between the mismatched transfusion of blood and her death. Wrong blood
transfusion is an error which no hospital/doctor exercising ordinary care would
have made — Appeal dismissed.
Counsel
for Appearing Parties :
Yashraj
Singh Deora, T.S. Sabarish for K.L. Mehta & Co, for the Appellant
Rajat
Sharma, Dinesh Verma and A.P. Mohanty, Advs., for the Respondent
JUDGMENT
R.M.
Lodha, J.—In this appeal by special leave, the appellant, Post Graduate
Institute of Medical Education and Research, Chandigarh (for short, `PGI' ) has
challenged the order dated September 29, 2000 passed by the National Consumer
Disputes Redressal Commission (for short, "National Commission"). By its order,
the National Commission dismissed the appeal filed by PGI under Section 21 of
the Consumer Protection Act, 1986 (for short, `Act, 1986' ) and affirmed the
order passed by the State Consumer Disputes Redressal Commission, Chandigarh
(for short, `State Commission' ) whereby it directed the PGI to pay compensation
in the sum of rupees two lacs to the respondents 1 and 2 herein (for short, `the
complainants') and cost of Rs. 5,000/-.
2.
The brief facts of the case are thus:
On
March 30, 1996, Smt. Harjit Kaur (wife of complainant No. 1 and mother of
complainant No. 2) received accidental burns while making tea on the stove. She
sustained 50% TBSA III burns involving both upper limbs, part of trunk and most
of both lower limbs. Smt. Harjit Kaur was taken to Daya Nand Medical College and
Hospital, Ludhiana immediately where she responded to the treatment well. She
remained admitted in Daya Nand Medical College and Hospital upto April 19, 1996.
Since the treatment at Daya Nand Medical College and Hospital was expensive, the
complainant No. 1 decided to shift his wife to PGI for further treatment. On
April 19, 1996, Smt. Harjit Kaur was admitted in PGI, Chandigarh. Dr. Varun
Kulshrestha, Senior Resident Doctor, Department of Plastic Surgery attended to
her. The condition of Smt. Harjit Kaur started improving at PGI. On May 15,
1995, she was transfused A+ blood which was her blood group. On May 20, 1996,
the patient was transfused B+ blood group in the afternoon although her blood
group was A+. On the night of May 20, 1996, the urine of the patient was reddish
like blood and the attendant nurse was informed accordingly. As to the bad luck
of Smt. Harjit Kaur, on the next day, i.e., May 21, 1996 again one bottle of B+
blood group was transfused although her blood group was A+. Because of
transfusion of mismatched blood, the condition of Smt. Harjit Kaur became
serious; her hemoglobin levels fell down to 5mg. and urea level went very high.
Later on, it transpired that due to transfusion of mismatched blood, the kidney
and liver of the patient got deranged. The complainant No. 1 made a written
complaint to the Head of the Department of Plastic Surgery for mismatched
transfusion of blood to the patient whereupon an inquiry was conducted through
senior doctor and wrong transfusion of the blood to the patient was found. The
condition of Smt. Harjit Kaur started deteriorating day by day and she
ultimately died on July 1, 1996. In the complaint before the State Commission,
the complainants alleged that the death of Smt. Harjit Kaur was caused due to
the negligence of Dr. Varun Kulshrestha and the medical staff at PGI; that there
was negligence in the discharge of service by the PGI and its doctors and they claimed damages to the tune
of rupees nine lacs for the loss of life of Smt. Harjit Kaur.
3.
Dr. Varun Kulshrestha filed reply to the complaint. He principally set up the
plea that although the patient was transfused wrong blood but it was not due to
any negligence on his part. He stated that due to the care exercised by him and
the other nursing staff, the patient became alright and her hematological and
biochemical parameters became almost normal and she recovered from mismatched
blood transfusion. It was stated in his reply that Smt. Harjit Kaur died of
septicemia and not by mismatched blood transfusion and, therefore, the complaint
was liable to be dismissed.
4.
Insofar as PGI is concerned, no reply to the complaint was filed separately but
they adopted the reply filed by Dr. Varun Kulshrestha. The parties filed their
respective affidavits and also produced before the State Commission the summary
report and the documents concerning treatment of Smt. Harjit Kaur.
5.
The State Commission after hearing the parties and upon consideration of the
materials made available to it, came to the conclusion that there was serious
deficiency and negligence on the part of PGI and its attending doctor(s)/staff
in transfusion of wrong blood group to the patient which resulted in death of
Smt. Harjit Kaur. The State Commission in its order dated February 1, 2000 held
that PGI was liable to pay sum of rupees two lac to the complainants out of
which 3/4th was to be put in the fixed deposit in favour of the minor
son Amandeep Singh (complainant No. 2) and 1/4th amount to be paid to
the complainant No. 1. The State Commission also awarded the cost of Rs.
5000/-.
6.
PGI challenged the order of the State Commission in appeal before the National
Commission but without any success.
7.
The learned Counsel for PGI raised the same contentions before us which were
raised before the National Commission that the cause of death of Smt. Harjit
Kaur was Septicemia and not mismatched blood transfusion. He would submit that
Smt. Harjit Kaur recovered from mismatched blood transfusion given to her on
20th and 21st May, 1996; her hemoglobin level was brought
up and her vital organs started functioning normal. The learned Counsel would
submit that Smt. Harjit Kaur died due to burn injuries and the other connected
reasons arising out of said injury and not due to mismatched blood transfusion
and, therefore, no negligence can be attributed to the hospital and the
attending doctor/s. He relied upon two decisions of this Court namely (i) AIR
2005 SC 3180 and (ii) AIR 2009 SC 2049
8.
The term negligence is often used in the sense of careless conduct. Way back in
1866 in Grill v. General Iron Screw Collier Co. (1866) L.R. 1 C.P.
600 at 612, Wills J. referred to negligence as "...the absence of
such care as it was the duty of the defendant to use."
9.
Browen L.J. in Thomas v. Quatermaine (1887)18 Q.B.D.
685 at 694 stated, " ...idea of negligence and duty are strictly
correlative, and there is no such thing as negligence in the abstract;
negligence is simply neglect of some care which we are bound by law to exercise
towards somebody".
10.
In Donoghue v. Stevenson (1932)A.C. 562 at 618-619,
Lord Macmillan with regard to negligence made the following classic
statement:
The
law takes no cognizance of carelessness in the abstract. It concerns itself with
carelessness only where there is a duty to take care and where failure in that
duty has caused damage. In such circumstances carelessness assumes the legal
quality of negligence and entails the consequences in law of negligence. The
cardinal principle of liability is that the party complained of should owe to
the party complaining a duty to take care, and that the party complaining should
be able to prove that he has suffered damage in consequence of a breach of that
duty.
11.
InAIR 2005 SC 3180 this Court while dealing with negligence as tort referred to
the Law of Torts, Ratanlal and Dhirajlal, (24th Edn., 2002 edited by
Justice G.P. Singh) and noticed thus:
Negligence
is the breach of a duty caused by the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs would do, or doing something which a prudent and
reasonable man would not do. Actionable negligence consists in the neglect of
the use of ordinary care or skill towards a person to whom the defendant owes
the duty of observing ordinary care and skill, by which neglect the plaintiff
has suffered injury to his person or property. ...the definition involves three
constituents of negligence: (1) A legal duty to exercise due care on the part of
the party complained of towards the party complaining the former's conduct
within the scope of the duty; (2) breach of the said duty; and (3) consequential
damage. Cause of action for negligence arises only when damage occurs; for,
damage is a necessary ingredient of this tort.
12.
Insofar as civil law is concerned, the term negligence is used for the purpose
of fastening the defendant with liability of the amount of damages. To fasten
liability in criminal law, the degree of negligence has to be higher than that
of negligence enough to fasten liability for damages in civil law.
13.
In Syad Akbar Vs. State of Karnataka, AIR 1979 SC 1848 , this Court dealt with
in details the distinction between negligence in civil law and in criminal law.
It has been held that there is a marked difference as to the effect of evidence,
namely, the proof, in civil and criminal proceedings. In civil proceedings, a
mere preponderance of probability is sufficient, and the defendant is not
necessarily entitled to the benefit of every reasonable doubt; but in criminal
proceedings, the persuasion of guilt must amount to such a moral certainty as
convinces the mind of the Court, as a reasonable man, beyond all reasonable
doubt.
14.
In Syad Akbar Vs. State of Karnataka, AIR 1979 SC 1848 , this Court held that
while negligence is an omission to do something which a reasonable man, guided
upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and reasonable man would
not do.
15.
With regard to the professional negligence, it is now well settled that a
professional may be held liable for negligence if he was not possessed of the
requisite skill which he professed to have possessed or, he did not exercise,
with reasonable competence in the given case the skill which he did possess. It
is equally well settled that the standard to be applied for judging, whether the
person charged has been negligent or not; would be that of an ordinary person
exercising skill in that profession. It is not necessary for every professional
to possess the highest level of expertise in that branch which he practises.
16.
In AIR 2005 SC 3180 as well as AIR 2009 SC 2049 , this Court quoted with the
approval the opinion of MacNair, J in Bolam v. Friern Hospital Management
Committee (1957) 2 All ER 118(QBD) :
[W]here
you get a situation which involves the use of some special skill or competence,
then the test as to whether there has been negligence or not is not the 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
Article
17.
In Hucks v. Cole (1968) 118 New LJ 469 , Lord Denning
stated that a medical practitioner would be liable only where his conduct fell
below that of the standards of a reasonably competent practitioner in his
field.
18.
Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213
observed that the true test for 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
ordinary care.
19.
In their classic work, `On Professional Negligence (fifth edition)', Jackson
& Powell state that mistakes made in the course of treatment may be purely
physical; purely intellectual or they may fall somewhere between the two.
Whichever form the mistake takes, there are two separate questions to consider :
(i) whether the defendant made a "mistake"; (ii) if so, whether the mistake was
one which a reasonably careful and skilful medical practitioner would not have
made. The claimant must, of course, succeed on both questions in order to
establish negligence.
20.
It needs no emphasis that in the medical negligence actions, the burden is on
the claimant to prove breach of duty, injury and causation. The injury must be
sufficiently proximate to the medical practitioner's breach of duty. In the
absence of evidence to the contrary adduced by the opposite party, an inference
of causation may be drawn even though positive or scientific proof is
lacking.
21.
`The Physiological Basis of Medical Practice (Eight Edition)' by Charles H. Best
and Norman B. Taylor in Chapter 26 deals with transfusion; blood groups. In
respect of incompatible transfusions, while dealing with its effects, it is
stated that if blood of the wrong (incompatible) ABO blood group is transfused,
a hemolytic transfusion reaction usually results red cells are destroyed and
there may be jaundice with hemoglobinemia and hemoglobinuria. Chills, fever and
shock may occur. Renal insufficiency may ensue believed by some to be due to a
reduced blood flow through the glomeruli.
22.
The patient, Harjit Kaur, got burn injuries to the extent of 50% on March 30,
1996. She was initially treated at Daya Nand Medical College and Hospital,
Ludhiana for about 20 days. Her condition improved satisfactorily at Daya Nand
Medical College and Hospital. She was admitted to PGI, Chandigarh on April 19,
1996. The available material placed before the State Commission shows that at
the time of her admission, Smt. Harjit Kaur was taking medicine orally and
passing urine; 75% of eschar was removed by May 1, 1996. Her condition had
substantially improved at PGI before May 20, 1996 and she had no signs of
septicemia. It was only after mismatched blood transfusion B+ on two consecutive
days, i.e., 20th and 21st May, 1996, that she became
anemic (her hemoglobin level was reduced to 5 per gram) and her kidney and liver
were deranged. It is true that her hemoglobin was brought up in few days but her
condition otherwise got deteriorated. Although she survived for about 40 days
after mismatched blood transfusion but from that it cannot be said that there
was no causal link between the mismatched transfusion of blood and her death.
Wrong blood transfusion is an error which no hospital/doctor exercising ordinary
care would have made. Such an error is not an error of professional judgment but
in the very nature of things a sure instance of medical negligence. The
hospital's breach of duty in mismatched blood transfusion contributed to her
death, if not wholly, but surely materially. Mismatched blood transfusion to a
patient having sustained 50% burns by itself speaks of negligence. Therefore, in
the facts and circumstances of the case, it cannot be said that the death of
Smt. Harjit Kaur was not caused by the breach of duty on the part of the
hospital and its attending staff.
23.
The State Commission observed:
...that
there has been serious deficiency and negligence on the part of the PGI and its
attending doctor(s)/staff for transfusing wrong blood group to the patient which
caused death of the wife of complainant No. 1. Mismatching of blood has been
confirmed by the Senior Resident in the Death Summary also (Annexure C/7). Once
the patient is brought to the PGI or any other Institute of Health Care, the
back-ground/History, if any, for example that the patient was maltreated by the
husband, does not absolve the Hospital from its professional obligation....
24.
Affirming the aforesaid view of the State Commission, the National Commission
held thus:
...It
is seen that the patient's kidney was damaged and the blood level reached to 100
gms. percentage, hemoglobin came down to 5 mg. after the mismatched blood
transfusion was given by the Doctor in the said Hospital. It was only after the
Complainant gave the written complaint to the hospital regarding the wrong
transfusion of blood given to the patient, an inquiry was made and it was found
correct. The damage control treatment started only after the written complaint
was given by the complainant. Though it is argued by the Counsel for the
Appellant that the percentage levels were brought down to normal, it is very
clear to us that the internal imbalances of liver and kidney functioning and
deteriorating hemoglobin levels started only after the mismatched blood
transfusion was given. Though septicemia has been written as the ultimate cause
of death, the patient's health took a nose dive only after wrong blood was given
to her and this is clearly negligence on the part of the doctors of the Hospital which the appellants
cannot disown or absolve themselves....
25.
We concur with the view of the National Commission as it does not suffer from
any error of law.
26.
In the result, the appeal fails and is dismissed with costs which we quantify at
Rs. 20,000/-.
No comments:
Post a Comment