The Court saved Doctor who gave Proper Treatment, even though there was an adverse Expert opinion.
"If the treatment given by Doctor is found to be
proper (by the court), the Expert opinion, though adverse, has no significance.."
It's a great relief for Doctors by National Commission in
its judgment dated 20/09/2016, in the case of DR. SHRIKANT V. MUKEWAR
V/s. VIMAL & 2 ORS.
Lets see the facts in nutshell :
1. The original Complainant ( patient) was the known case
of COPD i.e. chronic obstruction pulmonary disease, i.e. difficulty in
breathing and there was obstruction to the air flow.
2.It was alleegd that the treating Dr was just sitting hin
his chamber and did not pay any attention to Patient. As the condition of the
patient deteriorated, he was advised to shift to another hospital for
want of life supporting system.
3. Thereafter the patient was shifted to another hospital and
in all these events, patient had to incur huge expenses and hence case for
damages of Rs.2 lakhs was filed.
4. The District Commission dismissed the Complaint, but
the State Commission at Nagpur allowed the complaint to the tune of Rs.1 lakh +
Rs.10,000/- towards mental pain and agony. Hence the Dr. preferred appeal to
National Commission.
Held :
1. On perusal of medical record, it clearly goes to show
that the patient was treated with proper antibiotics alongwith proper blood
investigations and ultrasound abdomen. The patient was also examined by
different doctors.The pleural tapping was also done. The patient was also given
blood transfusion without any complications
2. Dr. Vijay M. Gedam, Civil Surgeon at Nagpur, who was an
expert gave an opinion that the Treatment given by Appellant to the patient was
not proper.
3.The treatment given was with proper antibiotics and
medicines. The patient was under close monitoring by the different doctors in
the OP 1 Hospital . Therefore, expert opinion of Civil Surgeon has no
significance.
4. It relied on the celebrated judgment of Hon. Apex Court
in the Case of Achutrao Hari Bhavu Khodwa Vs. State of Maharashtra 1996 (2) SCC
634 wherein it has been held as :
“The skill of medical practitioners differs from Doctor to
Doctor. The very nature of the profession is such that there may be more than
one course of treatment which may be advisable for treating a patient. Courts
would indeed be slow in attributing Negligence on the part of a
doctor if he has performed his duties to the best of his ability and with due
care and caution. Medical opinion may differ with regard to the course of
action to be taken by a Doctor treating a patient, but as long as a Doctor acts
in a manner which is acceptable to the Medical Profession, that has attended on
the patient with due care, skill and diligence and if the patient still does
not survive or suffers a permanent ailment, it would be difficult to hold the
Doctor to be guilty of Negligence .”
It’s a Great relief to Doctors. Sincerity and honesty
pays...
It's a practice to get independent expert
opinion in Medico legal Cases. In
Martin F Dsouza V/s. Mohd. ishfaq, (AIR 2009 SC 2049) the Hon.
Apex Court held that an Expert opinion is must before filing the Medical
Negligence and observed that "The courts and Consumer Fora are not
experts in medical science, and must not substitute their own views over that
of specialists."
However this view was
not accepted by the later judgment of Supreme Court in the case of V.Krishna Rao V/s.
Nikhil Superspeciality Hospital(2010) 5 SCC 513. It
was observed therein that “In the opinion of this Court, before forming an opinion that
expert evidence is necessary, the Fora under the Act must come to a conclusion
that the case is complicated enough to require the opinion of an expert or that
the facts of the case are such that it cannot be resolved by the members of the
Fora without the assistance of expert opinion”
Thus even if Consumer Court has discretion to call for the Medical
Expert opinion, there is no embargo if the party during Evidence produces
expert opinion in support of its case.
In one of its judgement, National Commission while holding that a Gynaecologist cannot be an expert witness in Chest Medicine and Neurology, observed that there has to be a proper policy and regulations to decide the mode and manner of expert witness.
An Opinion is not binding as if it's a rule :
Ultimately whether to accept the Opinion or not is always the discretion of the Court, as there are number of other factors which are required to be taken in to consideration while deciding the case..
In one of its judgement, National Commission while holding that a Gynaecologist cannot be an expert witness in Chest Medicine and Neurology, observed that there has to be a proper policy and regulations to decide the mode and manner of expert witness.
An Opinion is not binding as if it's a rule :
Ultimately whether to accept the Opinion or not is always the discretion of the Court, as there are number of other factors which are required to be taken in to consideration while deciding the case..
Thanks and Regards
Adv. Rohit Erande
Pune ©
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