ARTICLES OF AN ADVOCATE: Consumer Protection Act, 1986: Medical Negligence - Expert Evidence - Requirement of - Held: Expert evidence is not required in all medical negligence cases - Expert evidence is necessary when Fora comes to the conclusion that case is complicated or such that it cannot be resolved without assistance of expert opinion - Fora cannot follow mechanical or strait jacket approach - Each case has to be judged on its own facts - Negligence. s. 2(1)(g) - Medical Negligence/Deficiency in service - Patient suffering intermittent fever with chill admitted to hospital - Condition worsened critically and shifted to other hospital, where patient was declared dead - Complaint by husband before District Forum alleging deficiency in service - Award of two lakhs compensation - Set aside by State Commission as also National commission holding that there was no expert evidence to prove negligence - On appeal, held: It was a case of wrong treatment - Test conducted by other hospital for malaria found positive - Widel test for typhoid found negative - Patient treated for typhoid and not malaria by hospital where patient admitted when complaint was of intermittent fever with chill - As a result condition of patient deteriorated and became very critical and was removed to other hospital where she could not be revived - She had no pulse, no BP and in an unconscious state with pupils dilated and had to be put on a ventilator - Thus, expert evidence was not necessary to prove medical negligence. Negligence: Medical negligence - Doctrine of res ipsa loquitur - Applicability of - In medical negligence cases - Held: Doctrine is applicable where negligence is evident - Complainant does not have to prove anything as the thing (res) proves itself - Respondent has to prove that he has taken care and done his duty to repel the charge of negligence - Doctrines - Torts. Medical Negligence - Requirement of expert evidence in medical negligence cases - Directions in D'souza's case to have expert evidence in all cases of medical negligence whether binding - Held: Directions rendered in D'souza's case ignoring the provisions of the governing statute and earlier larger Bench decision on the point - Thus, not a binding precedent in cases of medical negligence before consumer Fora - Precedent. Medical negligence - Bolam test - Held: Lays down the standards for judging cases of medical negligence. Evidence Act, 1872: ss. 61, 64, 74 and 75 - Complaint before consumer forum alleging medical negligence - Opposite party alleging that hospital records proved without following the provisions of the Evidence Act - Held: Provisions of the Evidence Act are not applicable - Complaints before consumer forum are to be tried summarily. Judgment/Order: `Per incuriam' - When judgment rendered `per incuriam' - Held: When a judgment is passed ignoring the provisions of the governing statute and earlier larger Bench decision on the point, it is rendered `per incuriam'. The appellant's wife was suffering from intermittent fever with chill and was admitted in the respondent no. 1 hospital. She underwent certain tests but the tests did not reveal malaria. The patient did not respond to the medicines administered to her and her condition deteriorated day by day. She was finally shifted to Y hospital in a very precarious condition and was virtually clinically dead. The Y hospital issued a death certificate which disclosed that the patient died due to cardio respiratory arrest and malaria. The appellant filed a complaint against the respondent no. 1 hospital before the District Forum alleging negligence in treating his wife. The doctor R of the respondent no. 1 hospital deposed that the appellant's wife was not treated for malaria. The District Forum held that the patient was suffering from malaria but was treated for typhoid and as such was subjected to the wrong treatment, and awarded compensation of Rs. 2 lakhs. The respondent no. 1 filed an appeal. The State Consumer Disputes Redressal Commission allowed the appeal holding that there was no expert opinion to substantiate the allegation of negligence. The National Consumer Disputes Redressal Commission upheld the order of the State Consumer Forum. Hence the present appeal. Allowing the appeal, the Court HELD: 1. The general direction in *Martin F. D'souza v. Mohd. Ishfaq's case to have expert evidence in all cases of medical negligence is not binding. In the facts and circumstances of the case, expert evidence is not required and District Forum rightly did not ask the appellant to adduce expert evidence. Both State Commission and the National Commission fell into an error by opining to the contrary. The orders passed by the State Commission and the National Commission are set aside and the order passed by the District Forum is restored. The respondent no.1 is directed to pay the appellant the amount granted in his favour by the District Forum. [Para 55] [33-F-H; 34-A] 2.1. The complaints before consumer forums are tried summarily and the Evidence Act, 1872 in terms does not apply. The District Forum rightly overruled the objection on behalf of the respondent no.1 before the District Forum that the complaint sought to prove Y Hospital's record without following the provisions of ss. 61, 64, 74 and 75 of the Evidence Act. [Para 8] [14-G-H; 15-A-B] Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others (2009) 9 SCC 221, relied on. 2.2. 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. In these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory. [Para 13] [16-C-F] 2.3. As regard the requirement of expert evidence, before the Fora under the Act both simple and complicated cases may come. In complicated cases which require recording of evidence of expert, the complainant may be asked to approach the civil court for appropriate relief. Section 3 of the Consumer Protection Act provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, the Act preserves the right of the consumer to approach the civil court in complicated cases of medical negligence for necessary relief. Cases in which complicated questions do not arise the Forum can give redressal to an aggrieved consumer on the basis of a summary trial on affidavits. [Para 32] [23-F-H; 24-A] ***Indian Medical Association vs. V.P. Shantha & others (1995) 6 SCC 651, relied on. 2.4. Before the consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other. [Para 54] [33-A-F] 2.5. The instant case is a case of wrong treatment in as much as the patient was not treated for malaria when the complaint is of intermittent fever and chill. Instead the respondent No.1 treated the patient for Typhoid and as a result of which the condition of the patient deteriorated. When the condition became very critical the patient was removed to Y Hospital but patient could not be revived. RW-1-doctor R admitted in his evidence that the patient was not treated for malaria. The evidence shows that of the several injections given to the patient, only one was of Lariago. Apart from Lariago, several other injections were also administered on the patient. Lariago may be one injection for treating malaria but the finding of Y Hospital shows that smear for malarial parasite was positive. There is thus a definite indication of malaria, but so far as Widal test was conducted for Typhoid it was found negative. Even in such a situation the patient was treated for Typhoid and not for malaria and when the condition of the patient worsened critically, she was sent to Y Hospital in a very critical condition with no pulse, no BP and in an unconscious state with pupils dilated, as a result of which the patient had to be put on a ventilator. Thus, the expert evidence was not necessary to prove medical negligence. [Paras 14 and 15] [16-F-H; 17-A-B] 3. The parameters set down in Bolam test are to be reconsidered as a guide to decide cases on medical negligence and specially in view of Article 21 of the Constitution which encompasses within its guarantee, a right to medical treatment and medical care. In England, Bolam test is now considered merely a `rule of practice or of evidence. It is not a rule of law.' However, Bolam test correctly lays down the standards for judging cases of medical negligence, and there is no departure from the same. [Para 21] [19-C-E] **Jacob Mathew vs. State of Punjab and another (2005) 6 SCC 1, relied on. Bolam vs. Friern Hospital Management Committee 1957 (2) All England Law Reports 118 - referred to. Medical Negligence by Michael Jones Sweet & Maxwell, Fourth Edition 2008, paragraph 3-039 pg 246; Professional Negligence by Jackson & Powell Sweet & Maxwell, Fifth Edition, 2002 paragraph 7-047 pg 200; Clinical Negligence by Michael Powers QC, Nigel Harris and Anthony Barton, 4th Edition, Tottel Publishing paragraph 1.60, referred to. 4.1 When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered `Per incuriam'. [Para 51] [32-A] A.R. Antulay vs. R.S. Nayak and Anr. (1988) 2 SCC 602; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and Ors. (1990) 3 SCC 682, referred to. 4.2. In **Jacob Mathew vs. State of Punjab's case, the direction by the three-judge bench for consulting the opinion of another doctor before proceeding with criminal investigation was confined only in cases of criminal complaint and not in respect of cases before the Consumer Fora. Subsequently, the directions in D'souza's case to have expert evidence in all cases of medical negligence are not consistent with the law laid down by the larger Bench in Mathew's case. The reason why the larger Bench in Mathew's case did not equate the two is obvious in view of the jurisprudential and conceptual difference between cases of negligence in civil and criminal matter. Those directions in D'souza's case are also inconsistent with the principles laid down in another three-Judge Bench of this Court in ***Indian Medical Association vs. V.P. Shantha's case wherein it was held that the definition of `service' u/s.2(1)(o) of the Act has to be understood on broad parameters and it cannot exclude service rendered by a medical practitioner. In D'souza's case, the earlier larger Bench decision in ****Dr. J. J. Merchant vs. Shrinath Chaturvedi has not been noticed. [Paras 29, 30, 31 and 37] [23-A-E; 26-B] 4.3. The directions in paragraph 106 in D'souza's case is contrary to the provisions of the Consumer Protection Act, the Rules which is the governing statute and also to the avowed purposes of the Act. The Act was brought about in the background of worldwide movement for consumer protection. It is clear from the statement of objects and reasons of the Act that it is to provide a forum for speedy and simple redressal of consumer disputes. Such avowed legislative purpose cannot be either defeated or diluted by superimposing a requirement of having expert evidence in all cases of medical negligence regardless of factual requirement of the case. If that is done the efficacy of remedy under the Act will be substantially curtailed and in many cases the remedy will become illusory to the common man. [Paras 38, 39 and 42] [26-B-D; 42-A-C] State of Karnataka v. Vishwabharathi House Building Coop. Society & Others (2003) 2 SCC 412; Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243; Charan Singh v. Healing Touch Hospital (2000) 7 SCC 668; Spring Meadows Hospital v. Harjol Ahluwalia (1998) 4 SCC 39; India Photographic Co. Ltd. v. H.D. Shourie (1999) 6 SCC 428, referred to. 4.4. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. If the general directions in paragraph 106 in D'souza are to be followed then the doctrine of res ipsa loquitur which is applied in cases of medical negligence by this Court and also by Courts in England would be redundant. [Paras 47 and 48] [31-A-C] Spring Meadows Hospital v. Harjol Ahluwalia (1998) 4 SCC 39; Postgraduate Institute of Medial Education and Research, Chandigarh v. Jaspal Singh and others (2009) 7 SCC 330, referred to. Scott v. London & St. Katherine Docks Co. (1865) 3 H & C. 596, referred to. 4.5. The two-Judge Bench in D'souza's case has taken note of the decisions in Indian Medical Association's case and Mathew's case, but even after taking note of those two decisions, D'souza's case gave those general directions in paragraph 106 which are contrary to the principles laid down in both those larger Bench decisions. The larger Bench decision in Dr. J.J. Merchant's case has not been noted in D'souza's case. Apart from that, the directions in paragraph 106 in D'souza's case are contrary to the provisions of the governing statute and also inconsistent with the avowed purpose of the Act. Thus, the general direction given in paragraph 106 in D'souza's case cannot be accepted as constituting a binding precedent in cases of medical negligence before consumer Fora and those directions must be confined to the particular facts of that case. [Paras 53 and 49] [31-C- D; 32-E-G] *Martin F. D'souza v. Mohd. Ishfaq 2009 (3) SCC 1, held per incuriam. **Jacob Mathew vs. State of Punjab and another (2005) 6 SCC 1; ***Indian Medical Association vs. V.P. Shantha & others (1995) 6 SCC 651; ****Dr. J. J. Merchant and others vs. Shrinath Chaturvedi (2002) 6 SCC 635, relied on. Tarun Thakore vs. Dr. Noshir M. Shroff O.P. No. 215/2000 dated 24.9.2002, referred to. R. vs. Lawrence (1981) 1 All ER 974; Andrews v. Director of Public Prosecutions, (1937) 2 All ER 552 (HL); Riddell vs. Reid (1943) AC 1 (HL), referred to. Case Law Reference: (2009) 9 SCC 221 Relied on. Paras 8, 29, 1957 (2) All ER 118 Referred to. Paras 16, 17, 18, 19, 21 (2005) 6 SCC 1 Relied on. Paras 21, 27, 29, 30, 53 (1981) 1 All ER 974 Referred to. Para 23 (1937) 2 All ER 552(HL) Referred to. Para 23 (1943) AC 1 (HL) Referred to. Para 25 (1995) 6 SCC 651 Relied on. Paras 32, 33, 34 (2002) 6 SCC 635 Relied on. Paras 36, 37, 53 (2003) 2 SCC 412 Referred to. Para 40 (1994) 1 SCC 243 Referred to. Para 41 (2000) 7 SCC 668 Referred to. Para 41 (1998) 4 SCC 39 Referred to. Para 41, 43 (1999) 6 SCC 428 Referred to. Para 41 (2009) 7 SCC 330 Referred to. Para 44 (1865) 3 H & C. 596 Referred to. Para 45 2009 (3) SCC 1 Held per incuriam Para 49, 50, 53, 55 (1988) 2 SCC 602 Referred to. Para 51 (1990) 3 SCC 682 Referred to. Para 52 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2641 of 2010. From the Judgment & Order dated 19.2.2009 of the National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 303 of 2009. N.S. Gahlot, R.K. Singh, Sanjeev Malhotra for the Appellant. K. Maruthi Rao for the Respondents.