Judgment · Supreme Court

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 'p'rilr incuriam' . F G . The appellant's wife was suffering from intermittent fever with chill and was admitted in the respondent no. 1 H V. KISHAN RAO v. NIKHIL SUPER SPECIALITY HOSPITAL & ANR. 3 hospital. She underwent certain tests but the tests did not A 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 B 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 negligen~e in treating his wife. The doctor R of the respondent no. 1 hospital deposed C 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 a·ppeal. E 0 Allowing the appeal, the Court HELD: 1. The general direction in *Martin F. D'souza v. Mohd. lshfaq's case to have expert evidence in all cases of medical negligence is not binding. In the facts and F 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 G the State Commission and the National Commission ~re set aside and the order passed by the District Forum is restorecf. 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] H . 4 SUPREME COURT REPORTS [2010] 5 S.C.R. A

2.1. The complaints -before consumer forums are tried summarily and the Evidence Act, 1872 in terms doe·s 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 B 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 c others (200~) 9 sec 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 ~n expert or that the facts of the case are D 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 E has to be pH>Ved on the basis o(expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecess~rily burdened and in many cases such remedy would be illusory. [Para 13] [16-C-F] '\,· .. ·. -'· . ...

2.3. As regard the requirement of expert evidence, F 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 G 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 H necessary relief. Cases in which complicated questions V. KISHAN RAO v. NIKHIL SUPER SPECIALITY HOSPITAL & ANR 5 d0 not arise the Forum can give 'redressal to an· A at)grieved 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 sec 651, relied on. B

2.4. Before the consumer Fora if any of the parties wants to adduce experl evidence, the members of the Fora by applying their mind to the facts and circumstances of thii case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in C 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 D 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 i1_1 a given case E normally discharges two functions. The 1'irst 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 G 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] F H 6 SUPREME COURT REPORTS (2010) 5 S.C.R. A

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. s When the condition became very critical the patient was remo.ved to Y Hospital but patient, could not be revived. RW-1-doctor R admitted in his evidence that the patient was r.ot treated for malaria. The evidence shows that of the several injections given to the patient, only one was C 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, E 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] D ' F

#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, G Bolarn 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] H V. KISHAN RAO v. NIKHIL SUPER SPECIALITY HOSPITAL & ANR. 7 **Jacob Mathew vs. State of Punjab and another (2005) A 6 sec 1, relied on. Bo/am vs. Friern Hospital Management Committee 1957 (2) All England Law Reports 118 - referred to. Medical Negligence by Michael Jones Sweet & Maxwell, B 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 Mi~hael Powers QC, Nigel Harris and Anthony Barton, 4th Edition, Tottel Publishing paragraph 1.60, referred to. C

4.1 When a judgment is rendered by ignoring the provisions of the governing statute and earlier largQr Bench decision on the point such decisions are rendered 'Per incuriam'. [Para 51) [32-A]