ORDER B.K. Taimni, Member
1. Appellants were the opposite parties before the State Commission, where the respondent filed a complaint alleging a case of medical negligence on the part of the appellants.
2. Briefly stated the facts of the case are that the complainant had a congenital deformity which resulted in slight shortage of the length of his left leg. After reading an article in local vernacular Bi-weekly, the complainant approached the first appellant for his treatment by using 'Illizarov' surgery. The first appellant directed the complainant to the second appellant. Surgery was done which was said to be successful. It was the case of the complainant that the limping has not been cured and other ailments like oozing of blood and pain has been caused due to the negligence and want of expertise of the opposite parties in conducting the "ilizarov" surgery. It is in these circumstances that a complaint was filed before the State Commission, who after hearing the parties and perusal of material on record, while holding that there was no fault with the surgery, yet held the appellants medically negligent on account of 'ostomyelitis' caused to the complainant, for which they relied upon the report of the Kerette Medical Centre (P) Ltd., as a result of which the appellants were directed to pay a compensation of Rs. 1,00,000 along with refund of Rs. 38,957.43 being the amount spent by him along with cost of Rs. 1,500. Aggrieved by this order, opposite parties/ appellants have filed appeal before us.
3. We heard the learned Counsel for the parties at some length and also perused the material on record. Since the complainant has not filed any appeal, it will be presumed that he was satisfied with the order passed by the State Commission which held the appellants medically negligent on account of one point, i.e., causing 'ostomyelitis' due to post-operative services rendered by the opposite parties. In view of this, the only point which needs to be pressed is whether the appellants were negligent in rendering post-operative services?
4. We have perused the material on record and heard the learned Counsel for the parties. We have seen the discharge certificate. Admittedly, the complainant / respondent was discharged on 24.4.1996 at about 8.40 a.m. and the advice to the complainant was to buy a particular support (ortho). It is admitted position that the complainant never went to appellant any time after that date. As per material on record, the complainant went to Kerette Medical Centre on 1.8.1996, wherein at the time of admission, it was observed as follows:
Date Notes Investigation 1.8.96 Patient underwent for leg Illizarove ring 5.35 p.m. lengthening in 1994 fixation C/o. Pin tract infection in post OP day which subsequently healed
5. There is no explanation forthcoming from the respondent/complainant as to what was the status of the complainant between 24.4.1996 and 1.8.1996 with regard to alleged wound and alleged infection, ostomyelitis? The only inference we can draw from the report dated 1.8.1996 of Kerette Medical Centre is that there was perhaps some infection but as per the same report it had subsequently healed. This infection obviously was not fresh. If there was any infection after 24.4.1996, it could be on account of variety of reasons, including personal hygiene or otherwise. The complainant never seemed to have approached any physician or a doctor for treatment of alleged infection till after a lapse of period of over three months. In our view the State Commission misread this report and reached an incorrect conclusion that there was negligence on the part of the appellants resulting in infection especially as per entry on 1.8.96 clearly shows that the wound had healed.
6. We also see that no expert evidence has been led by the complainant in support of his contention that there was negligence on the part of the appellants or what care was expected from the appellants and which was not done. It is by now a settled proposition of law that in cases of medical negligence, onus to prove medical negligence lies on the complainant. The Hon'ble Supreme Court had occasion to deal with this issue in the case of Jacob Mathew v. State of Punjab and Anr. , wherein it was held that:
The subject of negligence in the context of the medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources can not be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.
7. The Hon'ble Supreme Court also put reliance on the following observations of House of Lords in the case of Bolam v. Friern Hospital Management Committee 1957 I WLR 582.
Where 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 art.
The 'Bolam' test envisages the duty of care in following terms:
(a) A duty of care in deciding whereto under the case;
(b) a duty of care in deciding what treatment to give;
(c) a duty of care in his administration of that treatment.
8. No material has been brought on record to state that the doctor was not qualified Surgeon or selection of treatment or its administration was not as per practice followed by large number of professional in such cases.
9. In the aforementioned circumstances, we find that the order passed by the State Commission cannot be sustained, hence the appeal is allowed and the complaint stands dismissed.