Sunita Kumar and Ors. Vs. St. Stephen's Hospital - (State Consumer Disputes Redressal Commission) (08 May 2019)

Onus of proving medical negligence and resultant deficiency in service is on complainant

MANU/QI/0004/2019

Consumer

Present complaint has been filed before this Commission under Section 17 of the Consumer Protection Act 1986 by Smt. Sunita Kumar and another, resident of Delhi, complainant, alleging deficiency of service in the matter of administering treatment to them. The Appellant prayed that, Respondent hospital be directed to pay the complainants Rs. 15 lacs for the treatment of the child and Rs. 72 lacs. for keeping two trained maids/nurses to take care of the child. Further, to direct the Respondents to pay the compensation to the tune of Rs. 10 lacs against their negligence unfair trade practice and deficiency which caused mental and physically harassment/agony/wastage of time/financial loss.

Short question for adjudication in this complaint is whether the allegation of negligence as against the OPs in the matter of treating the patient during the delivery, made out as argued by the ld. Counsel for the complainant and if so whether the complainant is entitled for the relief claimed.

The expert opinion has found the course of action by the OP Hospital and doctors in order which means no infirmity. It is trite law that, in the matter of negligence as is the case, the only point of consideration would be to examine if the treating doctor was sufficiently qualified to administer the treatment and, secondly, when the doctor was sufficiently competent whether while administering the treatment he has observed due and necessary and precaution and thirdly whether timely steps for treating the patient were taken. On these accounts, the OP Hospital, keeping in view the facts and circumstances cannot be faulted with since in the given case as per records immediate course of action was taken by the OP Hospital.

The National Commission in the case of Calcutta Medicare Research Institute v. Bimalesh Chatterjee and Ors. ruled that "the onus of proving medical negligence and resultant deficiency in service was clearly on the complainant which in the given case remains unsubstantiated.

No averment in substance has been made by the complainant that the action of the OPs in administering the treatment suffers from any infirmity or their decision to this effect is coupled with any mala fide. If that be the case the allegation of negligence as against the OPs in this behalf cannot be substantiated. The Hon'ble Apex Court in the matter of Achutrao Haribhan Khodwa and Ors. vs. State of Maharastra and Ors. is pleased to observe that, in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable. If the doctor has taken proper precaution and despite that if the patient does not survive then the Court should be very slow in attributing negligence on the part of the doctor.

The National Commission in the case of Calcutta Medicare Research Institute v. Bimalesh Chatterjee and Ors. ruled that "the onus of proving medical negligence and resultant deficiency in service was clearly on the complainant which in the given case remains unsubstantiated. The negligence as alleged against the treating doctor or OP hospital could not be substantiated and thus, the complaint cannot be allowed.

Relevant : Achutrao Haribhan Khodwa and Ors. vs. State of Maharastra and Ors. as reported in MANU/SC/0060/1996, Calcutta Medicare Research Institute v. Bimalesh Chatterjee and Ors.

Tags : COMPENSATION NEGLIGENCE PROOF