[ Martin F. D’souza v. Mohd. Ishfaq, AIR 2009 SC
2049]
The respondent who was suffering from chronic renal failure
was referred by the Director, Health Services to the Nanavati Hospital, Mumbai
for the purpose of a kidney transplant.
On or about 24-4-1991, the respondent reached Nanavati
Hospital, Bombay and was under the treatment of the appellant Doctor.
Investigations were underway to find a suitable donor. The respondent wanted
to be operated by Dr. Sonawala alone who was out of India.
The respondent approached the appellant Doctor. At the
time, the respondent, who was suffering from high fever, did not want to be
admitted to the Hospital despite the advice of the appellant. Hence, a broad
spectrum antibiotic was prescribed to him. The appellant constantly requested
the complainant to get admitted to hospital but the respondent refused. On
29-5-1991 the respondent who had high fever of 104 F finally agreed to get
admitted to hospital due to his serious condition.
The blood culture report of the respondent was received,
which showed a serious infection of the blood stream. The respondent insisted
on immediate kidney transplant even though the appellant had advised him that
in view of his blood and urine infection no transplant could take place for
six weeks. The respondent was administered Amikacin injection. On 8-6-1991,
the respondent, despite the appellants advice, got himself discharged from
Nanavati Hospital. The respondent received haemodialysis at Nanavati Hospital
and allegedly did not complain of deafness during this period. On 25-6-1991,
the respondent, on his own accord, was admitted to Prince Aly Khan Hospital,
where he was also treated with antibiotics. The complainant allegedly did not
complain of deafness during this period and conversed with doctors normally,
as was evident from their evidence. The respondent returned to Delhi on
14-8-1991. After discharge. The respondent filed a complaint before the
National Consumer Disputes Redressal Commission, New Delhi, claiming
compensation of an amount of Rs.12,00,000 as his hearing had been affected.
The appellant filed his reply stating, inter alia, that there was no material
brought on record by the respondent to show any correlation between the drugs
prescribed and the state of his health.
The case of the respondent, in brief, was that the
ap-pellant was negligent in prescribing Amikacin to the
respondent of 500 mg twice a day for 14 days as such dosage was excessive and
caused hearing impairment. It is also the case of the respondent that the
infection he was suffering from was not of a nature as to warrant
administration of Amikacin to him.
The Commission allowed the complaint of the respondent and
awarded Rs.4 lakhs with interest @ 12% as well as Rs.3 lakhs as compensation
as well as Rs.5000 as costs.
On appeal the Supreme Court observed that law, like
medicine, is an inexact science. One cannot predict with certainty an outcome
of many cases. It depends on the particular facts and circumstances of the
case, and also the personal notions of the Judge concerned who is hearing the
case. However, the broad and general legal principles relating to medical
negligence need to be understood.
A medical practitioner is not liable to be held negligent
simply because things went wrong from mischance or misadventure or through an
error of judgment in choosing one reasonable course of treatment in preference
to another. He would be liable only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field. It is not
enough to show that there is a body of competent professional opinion which
considers that the decision of the accused professional was a wrong decision,
provided there also exists a body of professional opinion, equally competent,
which supports the decision as reasonable in the circumstances.
The standard of care has to be judged in the light of
knowledge available at the time of the incident and not at the date of the
trial. Also, where the charge of negligence is of failure to use some
particular equipment, the charge would fail if the equipment was not generally
available at that point of time.
As regard the impairment of hearing of the respondent is
concerned it was observed that there is no known antibiotic drug which has no
side effect. Hence merely because there was impairment in the hearing of the
respondent that does not mean that the appellant was negligent.
The Court further observed that some times despite best
efforts the treatment of a doctor fails. For instance, sometimes despite the
best effort of a surgeon, the patient dies. That does not mean that doctor or
the surgeon must be held guilty of medical negligence, unless there was some
strong evidence to that effect. The appellant was held not guilty of medical
negligence.
