Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Consumer Protection Act. 1986 - Medical Negligence - Appellant~· w/fe died after undergoing surgery (hysterectomy) at a nursing home |
Content Type | Text |
Resource Type | Law Order |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Disposed Off |
Headnote | Consumer Protection Act. 1986 - Medical Negligence -Appellant~· wife died after undergoing surgery (hysterectomy) at anursing home - She was suffering from high blood pressure andher haemoglobin was low - Since the nursing home in which she wasoperated did not have ICU facility, she was shifted to anothernursing home and then to a hospital where she died - Appellantfiled complaint before the State Commission. which was allowed -Cross appeals by appellant as also the respondent no. 1 (theGynaecologist, on whose alleged insistence appellants wife wasoperated in the nursing home in question National Commissionreversed the order of State Commission - Plea of appellant that thedecision to pe1:form surgery without first controlling blood pressureand haemoglobin (amounted to medical negligence and further having regard to the foreseeable complications. the decision to performsurgery at a nursing home which did not have the ICU for postoperative needs, also amounted to medical negligence - On appeal.held: Negligence in the context of medical profession calls for atreatment with a difference - Error of judgment or an accident isnot proof of negligence - So long as doctor follows a practiceacceptable to the medical profession of the day, he cannot be heldliable for negligence merely because a better alternative coursewas available - Thus. decision to perform surgery may not by itselfbe held to be medical negligence - However. there was no seriouscontest to the plea of the appellant that the operation should notG have been pe1formed at a nursing home which did not have ICUwhen it was foreseeable that there was post operative risk to the lifeof the patient - Since. the matter has been pending for 23 years.instead of remanding it for fresh adjudication on this issue, in theinterests of justice. respondent no .1 is directed to pay a sum ofRs.5lakh to the heirs of the appellant without any interest- within 3 months - .((deposit is beyond 3 months, the amount will carry interest @ 12% p.a..Negligence - Medical negligence - Concept of - Different in· Civil and Criminal law - Held: What may he negligence in civil lawmay not he .w in criminal - In criminal law. element mens rea maybe required and degree of negligence must be much higher - Whereas. res ipsa loquitur operates in domain civil law, hut haslimited application on a charge of criminal negligence.Negligence - What is - Held: Negligence is a breach of ditty ·caused by omission to do something which a reasonable man woulddo or doing something which a prudent and reasonable man would not do.Negligence - Test of skill - Requirements of - Held: The testof skill expected is not of the highest skilled person - However. aprofessional may he held liable for negligence if he does not possessthe exquisite skill which he claims or if he fails to exercise reasonable competence.Consumer Protection Act. 1986 - Object of- Held: The objectof setting up Consumer Fora was to provide speedy re1nedy to aconsume1:Code of Civil Procedure. 1908 - s.89 - Alternative Disputes Redressal (ADR)- Applicability of. to consumer fora - Held: Thesaid provision ought to be duly invoked by the consumer fora.. ·Consumer Protection Act. 1986 - s.248 - Administrativecontrol of National Commission - Held: National Commission hasadministrative control over all the State Commissions - Thus, it is Fcompetent to introduce monitoring mechanism for speedy disposal -National Commission directed to issue appropriate directions in thisregard and formulate an appropriate action plan. |
Judge | N/A |
Neutral Citation | 2017 INSC 826 |
Petitioner | Bijoy Sinha Roy (d) By Lr. |
Respondent | Biswanath Das & Ors. |
SCR | [2017] 14 S.C.R. 558 |
Judgement Date | 2017-08-30 |
Case Number | 4761 |
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