Smt. Harjit Kaur, the wife of complainant received
accidental burns while making tea on the stove. She sustained 50% burns
involving both upper limbs, part of trunk and most of both lower limbs. The
wife was taken to Daya Nand Medical College and Hospital, Ludhiana where she
responded to the treatment well. Subsequently she was shifted to PGI Hospital
Chandigarh where Senior Resident Dr. Varun Kulshrestha attended to her. The
condition of wife started improving at PGI.
She was transfused A+ blood which was her blood group.
Subsequently, the patient was transfused B+ blood group although her blood
group was A+. In the night the urine of the patient was reddish like blood and
the attendant nurse was informed accordingly. As to the bad luck of Smt.
Harjit Kaur, on the next day, again one bottle of B+ blood group was
transfused. Because of transfusion of mismatched blood, the condition of Smt.
Harjit Kaur became serious; her hemoglobin levels fell down. and urea level
went very high. Later on, it transpired that due to transfusion of mismatched
blood, the kidney and liver of the patient got deranged. The complainant made
a written complaint to the Head of the Department of Plastic Surgery for
mismatched transfusion of blood to the patient whereupon an inquiry was
conducted through senior doctor and wrong transfusion of the blood to the
patient was found. The condition of Smt. Harjit Kaur started deteriorating day
by day and she ultimately died. In the complaint before the State Commission,
the complainants alleged that the death of Smt. Harjit Kaur was caused due to
the negligence of Dr. Varun Kulshrestha and the medical staff at PGI.
The State Commission after hearing the parties and upon
consideration of the materials made available to it, came to the conclusion
that there was serious deficiency and negligence on the part of PGI and its
attending doctor(s)/staff in transfusion of wrong blood group to the patient
which resulted in death of Smt. Harjit Kaur. The State Commission in its order
held that PGI was liable to pay sum of rupees two lac to the complainant.
The National Commission upheld the above order. On further
appeal the Court observed that the term negligence is often used in the sense
of careless conduct. In Grill v. General Iron Screw Collier Co. (1866)
L.R. 1 C.P. 600 at 612, Wills J. referred to negligence as “. . . the absence
of such care as it was the duty of the defendant to use.”
The Court further observed that insofar as civil law is
concerned, the term negligence is used for the purpose of fastening the
defendant with liability of the amount of damages. To fasten liability in
criminal law, the degree of negligence has to be higher than that of
negligence enough to fasten liability for damages in civil law.
As for the distinction between negligence in civil law and
in criminal law, it has been held that there is a marked difference as to the
effect of evidence, namely, the proof, in civil and criminal proceedings. In
civil proceedings, a mere preponderance of probability is sufficient, and the
defendant is not necessarily entitled to the benefit of every reasonable
doubt; but in criminal proceedings, the persuasion of guilt must amount to
such a moral certainty as convinces the mind of the Court, as a reasonable
man, beyond all reasonable doubt.
With regard to the professional negligence, it is now well
settled that a professional may be held liable for negligence if he was not
possessed of the requisite skill which he professed to have possessed or, he
did not exercise, with reasonable competence in the given case the skill which
he did possess. It is equally well settled that the standard to be applied for
judging, whether the person charged has been negligent or not, would be that
of an ordinary person exercising skill in that profession. It is not necessary
for every professional to possess the highest level of expertise in that
branch which he practises.
The Supreme Court held that the available material placed
before the State Commission shows that at the time of her admission, Smt.
Harjit Kaur was taking medicine orally and passing urine. Her condition had
substantially improved at PGI and she had no signs of septicemia. It was only
after mismatched blood transfusion B+ on two consecutive days, that she became
anemic (her hemoglobin level was reduced to 5 per gram) and her kidney and
liver were deranged. Although she survived for about 40 days after mismatched
blood transfusion but from that it cannot be said that there was no causal
link between the mismatched transfusion of blood and her death. Wrong blood
transfusion is an error which no hospital/doctor exercising ordinary care
would have made. Such an error is not an error of professional judgment but in
the very nature of things a sure instance of medical negligence.
