GURBACHAN PAL SINGH Vs. DEVINDER SINGH

JUDGEMENT

(1.) Petitioners No.1 and 2 are running their respective Nursing Homes, namely Paul Nursing Home, at Main Bus Stand, Rajpura and Guru Nanak Hospital, (near LIC Building) Rajpura, District Patiala. They have been summoned as accused in a private complaint filed by respondent. The son of the complainant aged 18 yeas, on account to his illness was taken to petitioner No.1 in Paul Nursing Home for medication when the son of the complainant without any investigation was administered Glucose and some injections resulting in deterioration of the condition. Petitioner No.1 doctor without the consent of the complainant had taken the son of the complainant to the hospital of petitioner No.2 at Guru Nanak Hospital, Rajpura where the treatment of the son of the complainant was started without any investigation. The patient was administered Glucose besides some injections and he was kept for 7/8 hours in the hospital. Instead of referring the patient to better hospital in Chandigarh, they kept the complainant's son for around 7/8 hours and gave some medicines which, as per complainant was wrong treatment. Health condition of the son of the complainant deteriorated as such he was referred to INSCOL Hospital, Sector 34, Chandigarh in Ambulance, where also he was treated for some time but on account of no improvement having been seen, the son of the complainant was taken to PGI at about 5.45 p.m. The condition of the boy deteriorated on account of wrong medicines. The Doctors of Chandigarh Hospital watching the critical condition of the patient referred to PGI at about 5.45 p.m. in the evening. The complainant's claim that the petitioners had not given proper medicines and treatment and did not inform the complainant intentionally in time that he deserved to be treated in a better hospital and required better treatment in an institution.

(2.) THE petitioners have been summoned as accused. Through instant petition they have challenged the summoning order and launching of prosecution against them, inter -alia on the ground that in cases of medical negligence detailed guidelines have been laid down to protect the interest of doctors to save them from unwarranted malicious proceedings. In the case of Jacob Mathew Vs. State of Punjab and another, (2005) 6 SCC 1 and Martin F. D'souza Vs. Modh. Ishfaq, AIR 2009 SC 2049, it has been contended that without opinion of an expert, the prosecution of a Doctor on the ground of medical negligence is not warranted.

(3.) THERE is no dispute regarding the parameters laid down for trial of a professional for medical negligence. In the present case, the complainant has levelled two allegations i.e. without properly diagnosing the ailment, the son of the complainant had been, in routine administered glucose through drip and was administered injections and that inordinate delay was caused in referring the patient to PGI. No doubt, the simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When there are allegations of failure of having taken precautions what is required to be seen is whether these precautions are 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. The case of the complainant is not that the deceased was suffering from a diagnosed ailment for which a treatment which is not prescribed was adopted but it is a case where without any diagnosis a period of 8 to 10 hours was wasted in administering glucose or injections. The launching of prosecution by the complainant in the present case does not appear to be an abuse of the process of the Court but it is a case where the petitioners would be required to establish by producing their defence evidence if the ailment had been diagnosed and a treatment which could have been given by any other professional had been provided. It is not a case where the petitioners have been unnecessarily harassed by arresting them. In Bolam Vs. Friern Hospital Management Committee, (1957) 1 WLR 582, it was laid down that in case of medical negligence, the investigating officer should, before proceeding against the Doctor accused of rash or negligent act of omission, obtain an independent and competent medical opinion preferably from a Doctor in Government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion, applying the Bolam test. In para 51 of the judgment in Jacob Mathew's case (supra), the Court had observed as follows: -