MUNISHWAR PRASAD SHUKLA Vs. P K AGARWAL & ANR

JUDGEMENT

(1.) THE complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. 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. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew v. State of Punjab, 2005 AIR(SC) 3180, that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per -se by applying the doctrine of res ipsa loquitur. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association v. V.P. Santha, 1995 3 CPJ 1, at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, ithasbeen observed in Malay Kumar Ganguli's case, III (2009) CPJ 17 (SC)=VI (2009) SLT 164=111 (2009) CCR 558 (SC)=AIR 2010 SC 1162, that "charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such, the burden of proof would be more onerous. A doctor cannot be heldnegligent only because somethinghas gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the right eye and not properly attending the left eye of the complainant and consequently, liable to pay damages for pre -mature permanent loss of right eye sight due to failure in surgery and deteriorating condition of the left eye.

(2.) IN the backdrop of the aforesaid observations and principles for determination of the facts in issue, we now propose to proceed with the factual matrix of the case.

(3.) THE complainant Munishwar Prasad Shukla aged about 54 years, s/o late Sri G.P. Shukla, r/o House No. 64, MIG, Sector -E, Aliganj, Lucknow has filed the instant case under Section 17 of the Consumer Protection Act (Act No. 68 of 1986) on 29.8.2007 against the OP No. 1 Dr. P.K. Agarwal, Eye Surgeon, r/o B - | 39, Sector B, Aliganj, Lucknow having Clinic at No. 9, New Corporation Flats, Near IT College Crossing, Nirala Nagar, Lucknow and OP No.2 Dr. Saurabh Baiswar, Eye Surgeon, Saurabh Eye Centre, "Satya Shiv Hospital", B -l, H Road, Near HanumanMandir, Maha Nagar Extension, Lucknow alleging medical negligence, concealment of facts and lack of reasonable care, caution and proper attention in conducting ECCE with PCIOL in the right eye of the complainant which ultimately resulted in failure, causing total permanent loss of right eye sight and also for causing damage to the left eye due to lack of attention for which a sum of Rs. 20 lakh has been claimed, apart from Rs. 2 lakh for physical pain, agonies, discomfort, trauma and permanent disability and Rs. 11,000.00 towards cost of litigation, totalling to Rs. 22,11,000.00 (Rs. twenty two lakh eleven thousands only).