National Consumer Disputes Redressal Commission

Girishchandra V. Bhatt and Ors. Vs. Sterling Hospital

MANU/CF/0224/2018

19.03.2018

Consumer

Onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence

In facts of present case, the Complainants' (Nos. 1 & 2) son, met with bike accident. Immediately he was admitted in Sterling Hospital (OP) at Rajkot. He was normal on admission with the exception of fractures. He was fully conscious for first two days without any major problems. All the reports were normal but thereafter his condition worsened and he expired during treatment. Since, the death of deceased had taken place solely due to negligence and carelessness in providing the treatment, the OP is solely responsible for the death of deceased. Therefore, alleging case of medical negligence complaint was filed before the State Commission.

The OP filed a written version and denied all the allegations regarding negligence during the treatment. The injured had suffered multiple bone fractures. The treatment was proper with due care but the death was due to cardio respiratory arrest. The doctors at OP hospital tried every effort to save the injured. On the basis of pleadings and arguments the State Commission dismissed the complaint at admission stage under Section 12(3) read with Section 18 of the Consumer Protection Act, 1986. Being aggrieved the complainant filed the instant appeal before present Commission.

The x-rays showed that, the patient had suffered fracture in the right Knee joint, bilateral superior and inferior Pubic rami. Also, there was a fracture involving bilateral iliac posteriorly and left sacral ala, fracture of right lower margin of the sacrum with displaced fracture segment. The x-ray of Lumbo Sacral spine revealed fracture of right transverse process of L2-L3 vertebrae. As per USG abdomen and pelvis showed there was a clot and mild perivesical hematoma. Therefore, the gravity of injuries can be ascertained on the day of admission. Thus, the submission of the Appellants that, only one fracture injury was there is unsustainable. The OP hospital took reasonable care, which was a standard of care during the emergency. During hospitalisation the patient was administered higher antibiotics also but despite all efforts the patient's condition deteriorated and there was bleeding. The CPK and D-Diamer abnormal values clearly indicative of extensive muscle damage and DIC. Therefore, it was not the negligence on the part of the treating doctor.

The expert witness plays an essential role in determining medical negligence and the Courts by and large rely on expert witness testimony to establish the standards of care germane to a medical negligence case. Generally, the purpose of expert witness is to describe standards of care relevant to a given case, identify any breaches in those standards, and if so noted, render an opinion as to whether those breaches are the most likely cause of injury. The expert witness is given more latitude. The expert witness is allowed to compare the applicable standards of care with the facts of the case and interpret whether the evidence indicates a deviation from the standards of care. The medical expert also provides an opinion (within a reasonable degree of medical certainty) as to whether that breach in care is the most likely cause of the patient's injury. The expert opinion will not carry any value, if it is without the expert's explanation of the range of acceptable treatment modalities within the standard of care and interpretation of medical facts.

The expert opinion in the instant case has failed to explain the elements of medical negligence. It is just a vague. It appears that, the expert is trying to favour the complainant and repeatedly making recommendation to the State Commission "To admit the complaint and decide in the interest of justice"; which is not a duty of an expert. Therefore, the expert opinion is not acceptable one as it has no evidentiary value.

In view if sequence of events and on perusal of the medical record, it is clear that the deceased had suffered multiple fractures and was properly treated on emergency basis at OP hospital. The discharge summary clearly shows the details. The active bleeding and haematoma was treated by transfusion of blood and blood products as needed. The patient was monitored in the ICU during hospitalisation but unfortunately suffered respiratory arrest. The doctors immediately performed intubation and the patient was put on ventilator. The ionotropic drugs were also started but later on the patient suffered cardiac arrest and CPR was given as per ACLS protocol but the patient was dead.

It is settled law that the onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. The present the Consumer Complaint completely lacks facta probantia and ought to be dismissed on that ground alone. There is no illegality or perversity in the well-reasoned order of the State Commission. Hence, the appeal is dismissed.

Tags : Complaint Medical negligence Proof

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