ORDER
P.D. Shenoy, Member
1. These two Revision Petitions are filed against the order dated 4.2.2005 passed by the State Commission, Karnataka in Appeal No. 1135/2003.
2. This is a case of alleged negligence. One of the important issues to be decided in this case is whether the consumer Fora can conclude that hospital and the operating surgeon were negligent without basing the decision on the evidence of the experts as well as extracts of medical texts and also especially when three experts have given their evidence on affidavit who were not cross-examined by the complainant/or his Advocate despite opportunities were being given. The obvious answer to these questions is that the consumer Fora are not correct in holding the operating surgeon/hospital negligent.
Case of the complainant:
3. In this case, the complainant has alleged that his wife Pramila aged 64 years suffering from gastric obstruction was admitted in the KLE Society’s Hospital (hereinafter referred to as hospital) on 19.7.1997 for treatment. Dr. A.S. Godhi examined her and advised her to undergo surgery. He operated her on 8.8.1997 at about 12 noon. After the operation she was kept in a recovery room till 8.30 p.m. On 9.8.1997 when the patient complained of pain at 4 a.m., Fortwin injection was administered. The condition of the patient started worsening due to respiratory failure and she went into semi-coma. At about 3.30 p.m. excessive concentration of oxygen i.e. 15 litres per minute was given to her. At 8.00 p.m. the patient was put on mechanical ventilator when she had respiratory arrest. It should have been done at 3.30 p.m. instead of at 8.00 p.m. The patient died at 8.30 p.m. due to criminal negligence of Dr. Godhi who came to the hospital only at about 10.00 p.m. There was medical negligence of the hospital and also the attendants in the said hospital. Primary cause of death of the deceased Pramila is respiratory failure leading to severe respiratory acidosis. Secondary cause is general anesthesia. Contributory cause is surgery. Though there was no necessity of surgery as the patient was in normal condition, Dr. Godhi operated her. The complainant spent Rs. 43,361 towards medical expenses. On. 13.10.1997, the complainant issued notice to the opponents calling them to pay compensation of Rs 4 lakh and also entire medical expenses to the tune of Rs. 41,361.
Case of the Hospital and the Surgeon Dr. Godhi:
4. The deceased Pramila was admitted in hospital on 19.7.1997. Dr. Godhi examined her and advised her to undergo operation for removal of gastric outlet obstruction. Dr. Godhi explained to her in detail the risks and consequences of the treatment. The deceased and the complainant voluntarily agreed for the surgery. On 8.8.1997, she was operated upon and she was kept in recovery room till 8.30 p.m., wherein her condition was continuously monitored. Later on she was shifted to surgical intensive care unit. There she was constantly attended by the doctors. On 9.8.1997 at 4.00 p.m., the patient complained of pain. The duty doctor after consulting the experts administered injection Fortwin to allay anxiety and alleviate pain. This treatment was appropriate and correct. The injection Fortwin and general anesthesia do not lead to respiratory failure. Opponents have also denied the allegation that excessive concentration of oxygen was administered to the patient. The oxygen was administered as part of treatment for respiratory failure under supervision of experts. The mechanical ventilator was applied as per the advice of concerned experts. Dr. Sodhi came to the hospital at 8.00 p.m. itself and treated the patient. The opponents have denied the allegation that the complainant has spent Rs. 41,316 towards medical expenses of deceased. The compensation claimed by the complainant has no basis. The deceased was admitted at the hospital on 19.7.1997 for gastric outlet obstruction. She was suffering from pyloric obstruction with severe electrolyte imbalance. As a result she had become weak, debilitated and bed-ridden. Prior to her admission in the KLE hospital she was taking treatment in another hospital. Surgery is the only mode of treatment by which pyloric obstruction can be cured. Dr. Godhi took the opinion of the concerned experts regarding fitness of the patient before starting the operation. After the operation she was kept under close observation in the recovery room and surgical intensive care unit wherein qualified doctors attended the patient carefully.
5. On 9.8.1997 at about 4.00 a.m. patient complained of pain. In order to alleviate the pain and restlessness Fortwin injection was administered which was proper. The Nepthrologist and Surgeon examined the patient and suspected aspiration pneumonia for which chest X-ray was taken and diagnosis was confirmed. Chest physician was summoned for further treatment. Under his supervision oxygen was administered. As this treatment did not give desired result the patient was put on ventilator. In spite of best efforts the patient died due to respiratory failure and due to aspiration pneumonia.
6. The complainant has produced some documents and has filed his affidavit in support of his case. Some documents are produced by the opponents, on the request made by the complainant. The opponent No. 2 has filed his affidavit and filed affidavit of some witnesses, and also has produced opinions of experts in support of his case.
Decision of the District Forum:
7. After hearing the parties, the District Forum held that “the post operative order sheet shows that patient was referred to the chest physician for examination on 9.8.1997 at about 6.30 p.m. It is also seen from this record that at about 7.45 p.m. chest physician has advised to shift the patient to MICU for ventilation. Accordingly patient was shifted to MICU and mechanical ventilation was given. But the patient expired at about 8.30 p.m. due to respiratory failure. If at all patient was referred to the chest physician earlier to this period and chest physician had given treatment as stated by him in his affidavit by the complainant the condition of the patient would not have deteriorated. On seeing the post operative order sheet and nurse’s daily record it appears, that on the letter alleged to have been written to the chest physician on 9.8.1997 at 3.15 p.m. and also reply given by the chest physician to this letter are subsequently created, without actually giving treatment as stated in the affidavits of the opponent No. 2 and also chest physician, Dr. Gouda. Thus according to our opinion the opponents have not given required treatment to the patient, on 9.8.1997 at about 3.00 p.m. when the patient became drowsy. On 9.8.1997 at about 4 p.m. it is stated in the progress record that the patient was not responding to verbal commands. Fortwin injection is a narcotic drug. Hence its intravenous administration before anesthesia or after anesthesia is dangerous. The opponent No. 2 has stated in his statement before the Forum that Fortwin injection causes mild respiratory depression. It appears that after administration of Fortwin injection the patient went into respiratory depression. Though the condition of the patient became depressed, the opponent No. 2 had not come to the hospital and taken steps to get her necessary treatment. He left the patient only under care of the P.G. students in the surgical Intensive Care Unit. The patient was referred to chest physician on 9.8.1997 at about 5 p.m. Chest physician examined her and advised to put the patient on mechanical ventilator. But it was not successful and patient died at about 8.30 p.m. This chest physician has stated that there was aspiration pneumonia with Hypoxemia and metabolic acidosis. If proper treatment had been given immediately patient would not have suffered with the aspiration pneumonia.
8. Opponents before the District Forum have produced the affidavits on evidence of Dr. PJ. Prabhakar, Prof, of surgery in J.N. Medical College, Devangere, Dr. P.N. Vishwanathan Asst. Prof., Anesthesiology, Government Medical College, Mysore and Dr Sukeshrao, Medical Practioner, Mangalore. Ail three experts have given their opinion after going through the records stating that treatment given to the patient was quite adequate. They have also stated that there is no negligence on the part of attending doctors.
9. The District Forum held that there is negligence on the part of the opponent No. 2 in giving treatment to the deceased. No doubt opponent No. 2 is working under opponent No. 1 but opponent No. 2 is mainly responsible for the death of the deceased. Hence out of the compensation amount of Rs. 75,000 awarded to the complainant, the Forum directed the opponent No. 2 to pay Rs. 50,000 personally, remaining amount of Rs.25,000 should be paid by opponent No. 1.
Decision of the State Commission:
10. Aggrieved by the order of the District Forum, both the parties have filed appeals before the State Commission. The complainant has filed an appeal for enhancing the compensation awarded and the Hospital and Dr. Godhi have filed the appeal to dismiss the complaint with cost.
11. As the State Commission dismissed both the appeals the complainant has filed revision petition for enhancement of compensation and opponents have filed revision petition for dismissal of the complaint, with cost.
Submissions of the learned Counsel for the revision petitioner B.S. Irranavar
12. Learned Counsel submitted that wife of the petitioner Mrs. Pramila was healthy before she was admitted for treatment at KLE Hospital and Research Centre. There was no need for surgery but still she was operated and she died due to wrong diagnosis and lack of post operative care. The treatment record indicates that the patient Smt. Pramila was not given proper treatment. She was examined on 8.8.1997 at 9 p.m. at the SICU by the P.G. Student, duty doctor and he found that there were GC – fair, Pt responds to verbal commands, finding in lung and gas exchange was not taking place properly. At 11.45 also it was found RC Crep + whereas on 9.8.1997 at 3 a.m. and 6 a.m. RS Basal Crep + was not checked. On 9.8.1997 case was examined by Dr. Godhi, patient was found to be drowsy.
13. Learned Counsel for submitted that as per the medication sheet on 8.8.1997 Injection Pethidine-30 mg. was administered along with Fortwin tab. at 4 p.m. This was given by the P.G. student which caused respiratory depression and ultimately patient died due to respiratory depression. On 9.8.97 at 3 a.m. she was prescribed Injection Rantac 50 mg. which was not given at the right time. The patient was advised at 3 p.m. on 9.8.1997 ABG (Arterial Blood Gas) test which is not taken. On 9.8.1997 at 5 p.m. acidosis due to aspiration pneumonia has led to respiratory failure but the patient was not shifted to the MCU till 7.46 p.m. He further argued that the compensation awarded by the District Forum was very meagre and accordingly has requested for enhancement of compensation.
Submissions of the learned Counsel for the KLE Hospital & Research Centre and Dr. Godhi:
14. Learned Counsel submitted that the order of the District Forum as affirmed by the State Commission erred in basing its entire judgment on the premise that it was for the petitioners (herein referred to hospital and doctor) to prove that they were not negligent (Pg. 27, para 33 of the District Forum’s order)
15. The Tribunals below erred in shifting the burden of proof on the petitioner herein on the erroneous ground that the patient was fit prior to the operation and that therefore there was prima facie negligence. He clarified that fit for operation does not mean fit prior to the operation and also does not mean that she was otherwise in good health.
16. Learned Counsel quoted the following extracts of the relevant record showing the patient’s condition prior to the operation:
Finding of the learned State Commission (page 10)”The Cross-examination of the complainant as CW1 discloses that the patient was treated from 1.7.1997 to 18.7.1997 at Rao’s hospital as per the case papers. He has admitted that he got the patient discharged to take her to higher centre.
Cross Examination of the respondent (at page 327)”On 1.7.1997 I have admitted my wife in the Rao’s hospital at Belgium. She was treated there from 1.7.1997 to 18.7.1997. I now see the case papers about the treatment of my wife at Rao’s hospital”.
Affidavit of Expert- Dr. Sukesh Rao (pg. 334-335) “Mrs. Pramila Irranavar was admitted to the hospital on 19.7.1997 with the diagnosis of gastric outlet Obstruction with electrolyte imbalance.
Affidavit of Expert- Dr. P.J. Prabhakar (Pg. 339-340)Mrs. Pramila Irranavar aged 64 years was admitted to the hospital on 19.7.1997, with the diagnosis of gastric outlet obstruction with electrolyte imbalance. She was also suffering from High Blood Pressure and Hyperthyroidism for which she was on treatment for a long time, which was under control as per the case sheet. She also underwent Hystrectomy some years back.
Patient was operated on 8.8.1999 by Dr. Godhi. The surgery for the above disease was inevitable and also is correct surgery as the suspicion of clinical diagnosis was confirmed on the table. This is only the remedy to relieve the obstruction.
Affidavit of Dr. Jagdish Shivalingappa Jamboti (Pg.354-355) As the patient was suffering from Pyloric Stenosis and she was required to be treated by the surgeon, Dr. A.S. Godhi, I certified that she was fit for operation on 6.8.1997.
Affidavit of Dr. Ishwar Basavaraj Havannavar (Pg. 357-358)The upper G.I. Endoscopy of Smt. Pramila Irranavar was done by me and I found that there was Pyloric Stenosis, I tried to negotiate the endoscopy beyond the stenosis but it was not possible because of the very narrow Pyloric opening.
Dr. Veerappa Annasaheb Kothiwale (Pg. 360-361) In view of her well controlled BP and normal echo study, I gave the fitness certificate for operation from the cardiac point of view.
17. The aforementioned evidence including the complainant’s cross-examination clearly show that the patient was not in good health prior to the operation.
18. The complainant Irranavar had also admitted that he was told at Rao’s hospital that the surgery was only remedy and hence he had taken his wife from Rao hospital to KLE hospital for better treatment and surgery. In his cross-examination he has admitted that the patient did not die due to negligence of Dr. Godhi. The following statement made by the complainant in cross-examination corroborate the above views:
In Rao’s hospital also they had told that operation was the only remedy and nothing
else.
It is true to suggest that we got her discharged from Rao’s hospital stating that we want to take her to a higher centre. On the very day of her discharge from Rao’s hospital we admitted her in opponent’s
hospital.
It is not true to suggest that my wife died due to administration of the injection and due to negligence of Dr. Godhi.
19. The opinion of experts, treating doctors and the admission of the respondent/complainant consistently stated that the right line of treatment had been followed and there had been no negligence. The same has not been challenged at any stage by the petitioner/complainant.
The complainant has himself admitted that there was no negligence and this is noticed by the State Commission in its inmpugned order.
Three experts were summoned by the District Forum for examination of the case papers for determination whether there had in fact been negligence.
Affidavits were filed by 3 experts Dr. Sukesh Rao, Medical Practitioner, Dr. P.J. Prabhakar, Surgeon, and Dr. P.N. Vishwanathan,
Anesthetist. All of them consistently held that there had been no negligence on the part of treating doctors and that the correct line of treatment was followed.
Dr. Sukesh Rao stated, inter alia, the following:
Aspiration is a known complication of any surgery and the incidence depends on many factors like age of the patient, associated illness, type of
surgery.
Prognosis of patient with bilateral aspiration pneumonia is usually grave.
I am of the opinion that there is no negligence on the part of the attending doctors in treating the patient.
Dr. P.J. Prabhakar, inter alia, stated the following:
The present diagnosis of gastric outlet obstruction was done by upper Gl Endoscopy examinations. All the necessary investigations have been done prior to the surgery. Prior to the surgery, patient’s electrolyte imbalance has been corrected in consultation with the nephrologists. Before surgery fitness for the same has been examined by concerned experts like cardiologist, nephrologists, anesthetist, etc.
The surgery for the above disease was inevitable and also is correct surgery as the suspicion of clinical diagnosis was confirmed on the table. This is the only remedy to relieve the obstruction.
As per the case sheet reports which I have gone through, there is no negligence on the part of the attending surgeon or attending doctors. The treatment given by the Surgeon is correct.
Dr. P.N. Vishivanathan stated the following
I am of the opinion that there is no negligence on the part of the attending doctors and the anesthetic management is in order and outcome is smooth.
20. Learned Counsel submitted extract of the judgments of the Apex Court to support his case that expert evidence could not be substituted by the judicial Fora with its own view.
(a) In Vinitha Ashok v. Lakshmi Hospital it is stated:
A Doctor will not be guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art and if he has acted in accordance with that practice then merely because there is a body that takes a contrary view, will not make him guilty of negligence.
(b) State of UP v. Shankar :
Where the Doctor testified that the injuries found on the deceased could have been caused with a pharsa or other sharp edged weapon the High Court was clearly in error in substituting its own opinion resting on conjectural premises for that of medical experts regarding the nature of the inflicting weapon.
(c) Mafabhai Nagarbhai Raval v. State of Gujarat at para 3:
It is needless to say that the doctor who has examined the deceased and conducted the post-mortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the Court cannot substitute its opinion to that of a doctor.
21. There has been absolutely no negligence and there were no contradiction between the post operative records of the doctors and the nurses record.
22. The District Forum as affirmed by the State Commission has come to the absolutely baseless conclusion that the patient was not attended to by the chest physician on time.
23. The District Forum completely ignored the following evidence on record:
(i) The respondent has in his cross-examination (at page 331) clearly stated that “Oxygen expert came and verified and examined the patient at 3.30 p.m.
(ii) In the consultation record sheet, at 3.15 p.m. on 9.8.1997, there is a note by the petitioner No. 2 to the Chest Physician to examine the patient and give the necessary opinion.
(iii) The Chest Physician advised 02 inhalation as per his notings at 3.30 p.m. (page 110) and later at 4.30 p.m. he advised that the 02 inhalation be increased to 50% @ 15 litres per minute.
(iv) This is corroborated by the petitioner No. 2’s affidavit and this averment was never successfully challenged.
(v) Once again the Chest Physician’s affidavit makes the same averment and the said physician was not cross-examined on this issue.
(vi) This is corroborated by the post operative record sheet which for the first time at 4.00 p.m. shows that the patient had been put on oxygen and at 5 p.m. the Treatment noted is “Advice to follow the orders of chest physician.
(vii) Even at the first instance, in the objection filed before the District Forum, while referring to the patient being put on oxygen it is clearly stated that “The patient was attended to by the expert doctor and the treatment which was given was most required treatment at that particular moment.
Findings:
(1) Whether the patient was healthy before the operation and whether the surgery was required?
24. The patient was treated at Rao’s hospital from 1.7.1997 to 18.7.1997 and she was discharged from Rao hospital to KLE hospital, Belgaum for admission for surgery as the doctor at Rao’s hospital told the complainant that operation was the only remedy and nothing else. The patient aged 64 years was diagnosed for gastric outlet obstruction with electrolyte imbalance. She was also suffering from High Blood Pressure and Hyperthyroidism for which she was on treatment for a long time. She also underwent Hystrectomy some years ago. Specialists who examined her and treated her from 18.7.1997 to 6.8.1997 at the KLE hospital did not declare her fully fit and only certified she was fit for operation on 6.8.1997. Hence, it would be a travesty of truth to hold that she was in good health prior to the operation.
(2) Surgery and post operative care:
25. The complainant has not complained that the surgery was performed wrongly. His complaint is only that the post operative care was improper and inadequate.
26. Doctors, surgeons, nurses, physicians who attended and looked after the patient have taken good care of the patient. This is evidenced by more than 200 pages of hospital records which contains the details of pre-operative treatment, surgery by a team of doctors and para medical staff and post operative care.
27. Learned Counsel for the OPs have quoted excerpts of the medical records and nurses’ diary to show that the patient was treated properly. It is relevant to note that District Forum erred in coming to the conclusion that as per the post operative records the patient was examined by the Chest Physician only at 6.00 p.m. and that the notings pertaining to the Chest Physician at 3.15 p.m. are added subsequently. The error in the order is further apparent when the District Forum in the same paragraph observes that “the patient was referred to Chest Physician on 9.8.1997 at 5.00 p.m.
28. The District Forum held that for the post operative treatment after the operation the patient was left only under the care of P.G. students and nurses and there is no mention in the post operative order sheet about the opponent No. 2 attending the patient and giving advice for the treatment.
29. The use of the words “PG Students” is a misnomer and it must be borne in mind that the so-called students are fully qualified doctors with an MBBS qualification.
30. There is not a single averment in either the complaint or the evidence of the respondent regarding the delayed arrival of any doctor, least of all the petitioner No. 2. On the other hand, the Post Operative Records clearly show that the patient was examined at the following times on 9.8.1997 at 9.30 a.m. (Dr.Kothiwale– Specialist); Dr. Godhi (R-2); 11.00 a.m., 12.30 a.m., 1.30 p.m., 2.30 p.m., 3.00 p.m. (ICU PG); 4.00 p.m. (Dr. Godhi: 5.00 p.m. (Dr. Godhi and Dr. GaudeChest Physician): 6.00 p.m. (ICU PG); 7.46 (Dr. Gaude – Chest Physician) 7.50 p.m. (Dr. Godhi).
31. In view of the above, analysis we hold that it is for the complainant to prove that there is negligence on the part of the hospital and staff. It is not for the hospital and doctors to prove that they were not negligent. Repeated opportunities, given to the complainant to cross-examine the expert witnesses, were discarded by the complainant which has resulted in non-rebuttal of the evidence adduced by the experts who have clearly held that surgery was the only remedy available to the patient who suffered from Gastric Outlet Obstruction with electrolyte imbalance and that “there is no negligence on the part of the attending doctors, anesthetic management and surgeons.” The treatment given by the surgeon is correct.
32. State Commission and District Forum erred in disbelieving the expert’s evidence.
(3) Evidence of Expert witnesses and absence of cross-examination:
33. Before the District Forum, the opponents filed affidavits of Dr. P.J. Prabhakar, Prof, of Surgery of J.J. M. Medical College, Davangere, Dr. P.N. Vishwanathan, Asst. Prof. Anesthesiology, Government Medical College, Mysore and Dr. Sukeshrao, Medical Practitioner, Mangalore. All these experts have given their opinion after going through the records stating that the treatment given to the patient was quite adequate and there was no negligence on the part of the attending doctors.
34. The State Commission felt that though 3 experts have filed their affidavits the complainant did not opt for cross-examination, when this fact was brought to the notice of the State Commission that on behalf of the complainant an application was filed to cross-examine the said doctors, but subsequently the said request was withdrawn for the reasons best known to the complainant.
35. After hearing the learned Counsel for the parties, the State Commission held that this is a fit case where the order of the District Forum had to be set aside and the matter has to be remitted for fresh disposal leaving it open to the complainant to cross-examine the 3 doctors who have filed their affidavits.
36. Though, evidence on affidavit of three experts were filed by the opponents before the District Forum, the complainant had chosen not to cross-examine them. Accordingly, their evidence has gone unrebutted. Despite further opportunity to cross-examination of three experts given by the State Commission, this golden opportunity was not availed of at all by the complainant. Hence we have no reason to disbelieve their evidence.
37. It was the District Forum which itself, by its order dated 29.5.98 allowed expert opinion to be filed. The parties were called upon to suggest the names of experts. On 10.9.1998 a memo was filed on behalf of the appellants. The respondent filed a memo on 25.9.1998 leaving the matter to the discretion of the Hon’ble Forum. The Hon’ble Forum asked the petitioners herein to suggest the names. On 28.10.1998 the petitioner suggested three names whose opinion is on record.
38. All the experts stated that there was no negligence. However, not even one of them cross-examined. On 12.1.1999 and 8.2.1999 the matter was adjourned to enable the parties to file their objections to the expert opinion. However, the complainant filed no such objection. On 18.12.1999 the complainant filed a memo seeking permission to cross-examine the experts. However on 24.2.1999, the complainant endorsed that he does not press the memo.
39. The District Forum as affirmed by the State Commission based its findings on the very same records that were available to the experts. But erroneously went on to hold that the evidence of the experts could not be relied on as they have no personal knowledge of the case. Once the respondent has given up his right of cross-examination, he cannot turn around and state that the experts deposed wrongly.
40. The learned Counsel for the petitioner quoted extracts of the following judgments which have dealt with the implications of not cross-examining:
(a) State of UP v. Nahar Singh :
In absence of cross-examination on explanation of delay, the evidence of PW1 remained unchallenged and ought to have been believed by the High Court.
(b) State v. Bhola Singh :
When a party declines to avail himself of the opportunity to put his essential case in cross-examination it must follow that he believes that the testimony given could not be disputed at all. This is the rule of essential justice.
(c) Halsburey’s Laws of England, 4th Edition, Volume 17 at page 194.
Purpose of Cross-examinationCross Examination is directed to (1) the credibility of witnesses (2) the facts to which he has deposed in chief including the cross-examiner’s version of them and (3) the facts to which the witness has not deposed but to which the cross-examiner thinks he is able to depose. Where the Court is to be asked to disbelieve a witness, the witness should be cross-examined; failure to cross-examine a witness on some material part of his evidence or at all may be treated as an acceptance of the truth of the part or the whole of his evidence.
(4) Were the hospital and doctor negligent?
41. It could not be expected that every physician or surgeon is gifted with extraordinary skills or they can perform miracles. What is expected of a doctor is whether the procedure adopted by the doctor is acceptable to medical profession. This point has been elaborated by the Apex Court in the case of Achutraon Haribhau Khodwa v. State of Maharashtra in the following words:
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 and the Court finds that he has attended on a 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.
42. Further in the case of Dr. Laxman Balkrishana Joshiv Dr. Trimbak Bapu Godbole AIR 1969, SC128, the Apex Court while dealing with the question of medical negligence and duties of a doctor, observed thus:
The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires : (cf. Halsbury’s Laws of England, 3rd Ed. Vol. 26 P.17). The Doctor, no doubt, has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.
43. To prove the negligence of any doctor the complainant has to lead adequate evidence with supportive medical texts. This has not been done by the complainant. A careful perusal of the clinical notes of the hospital which runs into several pages indicates that sincere efforts were made by the hospital authorities and the doctors concerned to perform the procedure and post-operative care. Hence, we cannot throw the blame Ops 1 and 2 in the absence of cogent and reliable evidence supporting the contentions of the complainant.
44. Accordingly, revision petition of the KLE hospital and Dr. Godhi is allowed and the orders passed by Fora below set aside and complaint dismissed. As the complaint itself is dismissed the revision petition for enhancement of compensation by Shri B.S, Irranavar is also dismissed. In the peculiar facts and circumstances of the case, there shall be no order as to costs.