Amrit Raj (Minor), Through His Natural Guardian v. Dhawan Surgicary Care And Multi-Specialty Hospital Order dated 17.10.2019 by NCDRC, First Appeal No. 1382 Of 2017
Facts: The minor Complainant through his natural guardian, his mother, instituted a Complaint, negligence and deficiency were alleged in treating a fracture in the left arm, which inter alia caused development of gangrene, and resulted in the amputation of the left arm below the elbow of the minor Complainant. It left him permanently disabled, and in need of continuous further treatment. The minor Complainant was treated in Dhawan Surgicare and Multi Specialty Hospital, Ludhiana, the Opposite Party No. 1, and then in Christian Medical College, Ludhiana No allegation has been made against CMC. On receipt of the Complaint, the State Commission asked for a report from Postgraduate Institute of Medical Education & Research, Chandigarh (“Upon receipt of this complaint, report of expert body of doctors was called from PGI, Chandigarh, if there was any medical negligence in this case or not.”). A “committee” comprising of three doctors, an Additional Professor, Department of Orthopedics, an Associate Professor, Department of Orthopedics, and a Medical Officer, Staff Clinic, of Postgraduate Institute of Medical Education & Research, Chandigarh (hereinafter referred to as ‘PGI’), reported that it did not find any gross negligence (“Based on these findings the committee does not find any gross negligence of treating primary Orthopaedic Surgeon form Dhawan Surgicare and Multispecialty Hospital”). The committee based its said report dated 14.09.2016 principally on examination of the minor Complainant, the statement of the minor Complainant’s mother, the records provided by Dhawan Surgicare and Multi Specialty Hospital and the records provided by CMC.
Observations: The Complaint shows clear allegations of medical negligence / deficiency in service against the Opposite Parties. The State Commission should have admitted the Complaint and issued notice to the Opposite Parties to file their Written Versions under Section 13(1)(a) of the Act within a period of thirty days or extended period not exceeding fifteen days. In the instant case, the State Commission did not admit the Complaint, did not issue notice to the Opposite Parties, did not direct the Opposite Parties to file their Written Versions, when, on the face of it, clear allegations of negligence and deficiency were well and truly evident in the Complaint. It, but, rather referred the matter to PGI Chandigarh to seek “report of expert body of doctors”. The committee of doctors of PGI examined the minor Complainant, recorded the statement of his mother, perused the record provided by Dhawan Surgicare and Multi Specialty Hospital (Opposite Party No. 1), perused the record provided by CMC, and gave its opinion that it “does not find any gross negligence”. Here we may note that the word “gross” in the phrase “any gross negligence”, as contained in PGI’s report dated 14.09.2016, is significant. Prima facie, if no medical negligence was made out, “gross” should ordinarily not have been included in its opinion. The objections of the Complainant apropos the report of PGI were disregarded by the State Commission.
Held: A Complaint of medical negligence / deficiency in service, of such facts and specificities, containing clear allegations of negligence and deficiency, decidedly required to be admitted and adjudicated on merit as per the due procedure. It could not and should not have been anyhow dismissed by anyway seeking a report from a medical institution and disregarding the Complainant’s objections thereagainst. We also find that the State Commission has expressed its lack of expertise in medical science and relied solely on the report of PGI in disregarding the objections of the Complainant and in dismissing the Complaint (“The Court is not expert in the medical science and it has to rely upon the report of expert body of doctors to come to the correct conclusion. The expert body of experienced doctors constituted by PGI, Chandigarh found no medical negligence on the part of treating orthopaedic surgeon from Dhawan Surgicare and Multispecialty Hospital in this case. Consequently, we find that the expert body of doctors found no case of medical negligence, hence we being not experts in medical science have to prefer to rely upon the report of expert body of doctors constituted by the PGI, Chandigarh. The objections duly considered and we conclude that report of expert body of doctors of PGI, Chandigarh would prevail.”) We find the State Commission’s reasoning to be erroneous. The State Commission cannot and should not take recourse to its lack of expertise and blindly rely on an expert report. It has to understand the matter in its entirety including the contents of an expert report called for by it, examine and appraise the matter holistically, and arrive at its reasoned findings with the due application of mind. Nothing prevented the State Commission from calling the committee members (doctors) before it, for the members to explain the contents of their report. Nothing prevented the State Commission from appointing an expert in the field to act as amicus curiae to the Commission, to assist it in understanding the matter in its entirety including the contents of the report called for by it. And, in exceptional circumstances, if the State Commission was (still) unable to understand the case before it, nothing prevented it from referring the matter to this Commission under Section 22B of the Act with a request for transferring it “of its own motion” to another State Commission. In other words, no Consumer Protection Forum can express its lack of expertise and blindly rely on an expert report without understanding the matter in its entirety including the contents of an expert report called for by it and dismiss the Complaint. A Complainant in a case of medical negligence is generally disadvantageously placed. The onus to prove his case is on him. He needs access to the complete (repeat complete) medical record of the Opposite Party hospital and doctors. He also needs opportunity to challenge the completeness of or tampering etc. in the medical record.
At times he needs order from the Consumer Protection Forum in the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath and in the discovery and production of any document or other material object producible as evidence (refer Section 13(4) of the Act). He needs opportunity to file his evidence, opportunity to file his own expert opinion(s). Etc. In respect of ‘expert opinions’, also, we may elaborate that they are broadly of two types.
One are expert opinions filed by the Complainant and / or the Opposite Parties hospital / doctor, the other are expert opinions sought by a Consumer Protection Forum. The former is adduced as part of their respective evidence by either or both sides. The latter is sought by the Forum, in its considered wisdom, and should generally be sought on the basis of the entire material on record i.e. the Complaint, the Written Version, the Rejoinder thereto, the Evidence (including expert opinion(s) filed by either or both sides), briefs of written arguments (including medical literature filed by either or both sides), and, most importantly, the complete medical record available on the case-file. As such, the two, an expert opinion filed by either side, and an expert opinion sought by a Consumer Protection Forum, are distinctively and differently placed. We would not want to enter into the arena of how a medical board should function; an elaborate critique is not warranted or necessary in the present facts and context.We may, but, note that the board should ordinarily base its opinion on an objective appraisal of the medical record and material before it. It may also examine the patient if so deemed necessary. However, it can not and should not record the statement of a minor Complainant’s mother on its own, without an explicit and reasoned order from the Consumer Protection Forum to this effect. The statement of the minor Complainant’s mother in this case should have been recorded as per the procedure by the State Commission in its proceedings, and not by the medical board. In the instant case we note elements of ‘proceedings’ being conducted by the committee of PGI, which should ordinarily have been conducted by the State Commission. In other words, the State Commission abrogated its jurisdiction, and, for a protracted period, the committee of PGI, in making its report, exercised elements of proceedings falling in the jurisdiction of the State Commission. The committee transgressed its role and ambit of making its opinion on an objective appraisal of the medical record and material placed before it. This is not how a Complaint containing clear allegations of medical negligence / deficiency in service should be dealt with. The State Commission’s impugned Order cannot sustain. In the light of the above discussion, we have no hesitation in allowing the appeal and setting aside the impugned Order dated 07.11.2016 of the State Commission with the directions that the State Commission shall admit the Complaint, issue notice to the Opposite Parties and proceed with the adjudication of the case on merit. The report dated 14.09.2016 of PGI shall be disregarded and not be considered in evidence. In case the State Commission, in the adjudication afresh on merit, in its considered wisdom, deems it fit to seek expert medical opinion from a medical institution through a board of experts drawn from the concerned relevant faculties, the said board shall not comprise of doctors who made the earlier report dated 14.09.2016 and the said doctors shall not be associated therewith in any manner.
Seeing that the alleged incident of medical negligence took place in 2013, and the State Commission took over 2 years in dismissing the Complaint “in limine”, without notice to the Opposite Parties, and we are now in 2019, the State Commission is requested to decide the case as expeditiously as possible and preferably within a period of six months. We make it explicit that we have consciously refrained from entering into the merits of the case, of either side, since the matter has to be adjudicated by the Forum of Original Jurisdiction, the State Commission, and we do not in any manner want to color the vision of the Forum below.