The Need For Expert Evidence In Medical Negligence Cases
June 25, 2018
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The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of an expert opinion or there is any medical treatise on which reliance could be based.
In this case, there was a false allegation of urinary stone not being removed as shown by a shadow in the x-ray “The burden of proving the negligent act or wrong diagnosis was on the Complainant” and the appeal was dismissed in another case of alleged medical negligence as no expert evidence was produced.
The case discussed below is not a case of apparent negligence on the part of the surgeon in conducting the operation, but about the quality of the plate used for fixing the bone. In the present case, the Complainant has not produced any expert witnesses to prove that there was any fault in the performance of the operations. Fixation of the bones by using plates is one of the recognized modes of treatment in the case of fracture of the bones. If the opposite party has adopted the aforesaid method, though subsequently, the plate broke, negligence cannot be attributed to the doctor. This is not a case where the wounds of the operation were infected or any other complication arose. Breaking of the plate approximately 6 months after it was placed cannot be attributed towards a negligent act of the doctor in performing the operation. The District Forum rightly held that the Complainant had failed to prove his case.
There is nothing on the record to suggest that there has been any negligence and/or deficiency in service on the part of the Appellant except the oral submission of the Respondent/Complainant. In such cases, before coming to a positive finding, there must be expert evidence on the record as has been held both by the National Commission as well as the Apex Court.
“As per the settled law, the onus to prove that there was negligence” deficiency in service on the part of the opposite parties while diagnosing and treating the Complainant, lay heavily on the Complainant. In the given facts, the Complainant has failed to discharge the onus that was on him. The complaint was dismissed as the Complainant failed to discharge the onus to prove negligence or deficiency in service.
In medical negligence cases, it is for the patient to establish his case against the medical professional and not for the medical professional to prove that he acted with sufficient care and skill. Refer to the decision of the Madhya Pradesh High Court in the case of Smt. Sudha Gupta and Ors. vs. State of M.P. and Ors., 1999 (2) MPLJ 259. The National Commission has also taken the same view observing that a mishap during operation cannot be said to be deficiency or negligence in medical services. Negligence has to be established and cannot be presumed. Refer to the decision of the National Commission in the case of Kanhiya Kumar Singh vs. Park Medicare and Research Centre, III (1999) CPJ 9 (NC) – (2000) NCJ (NC) 12. A similar view has been taken by the MRTP Commission in the case of P.K. Pandey vs. Sufai Nursing Home, I (1999) CPJ 65 (MRTP) – 2000 NCJ (MRTP) 268. Followed by this, refer to the Commission in Vaqar Mohammed Khan and Anr. vs. Dr. S. K. Tandon, II (2000) CPJ 169.
Both the lower Fora have held that there is no evidence brought on record by the Complainant to show that there was any negligence by the Respondent while implanting the lens in the eye of the Complainant resulting in a persistent problem in the left eye.
The Complainant does not examine any expert on the subject to establish his allegation of negligence on the part of the doctor. Unfortunate though the incident is, the Complainant needs to establish negligence on the part of the doctor to succeed in a case like this. We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of Complainant. Under the circumstances, we cannot but hold that the Complainant has failed to prove the allegations against the opposite parties.
As held by the National Commission in Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and anr., 1998 CTJ7, in the absence of such evidence regarding the cause of death and absence of any expert medical evidence, the Complainants have failed to prove negligence on the part of the opposite parties.
In order to decide whether negligence is established in any particular case, the alleged act, omission, or course of conduct that is the subject of the complaint must be judged not by ideal standards nor in the abstract but against the background of the circumstances in which the treatment in question was given. The true test for establishing negligence on the part of a doctor is as to whether he has been proven guilty of such failure as no doctor with ordinary skills would be guilty of if acting with reasonable care. Merely because a medical procedure fails, it cannot be stated that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden of proving this rests upon the person who asserts it. The duty of a medical practitioner arises from the fact that he does something to a human being that is likely to cause physical damage unless it is not done with proper care and skill. There is no question of warranty, undertaking, or profession of a skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. As per the law, a defendant charged with negligence can clear himself if he shows that he acted in accordance with the general and approved the practice. It is not required in the discharge of his duty of care that he should use the highest degree of skill, since this may never be acquired. Even a deviation from normal professional practice is not necessary in all cases evidence of negligence.
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October 20, 2018