Justice J M Malik and his Laudable Judgement on Doctor’s Skill
In a landmark judgement, one that has given hope to many doctors Justice J M Malik has noted that “…It is known that no doctor will assure full recovery or give guarantee that result of surgery would be 100% cure.” This means that the doctor cannot be held responsible for neglect just because the patient did not get the desired results after treatment. However, doctors should treat the patients to the best of their ability.
The case
Justice Malik was presiding over an appeal in the case of Rajesh Taneja vs Kaiser Hospital & 3 Ors. 17 May 2016 at NCDR. The complainant, Rajesh Taneja, a known case of Ankylosing Spondylitis, had undergone Total Hip Replacement (THR) of the right side at Post Graduate Institute of Medical Education & Research (in short, PGIMER, Chandigarh) in 1992. Again, left side THR was performed in 1996. Thereafter, he suffered pain in the right hip and difficulty in walking, therefore, he consulted Dr. O. N. Nagi, Head of Orthopaedics Department at PGI. He recommended for replacement of acetabular cups on 26-08-2002, but due to non-availability of early date at PGI, the complainant consulted Dr. M.S. Gupta (OP3). The surgery was performed on 04-01-2003. Surgery lasted for almost eight hours. The complainant alleged that OP3 has no knowledge or experience in the joint surgeries. Therefore, acetabular cap could not be replaced. The complainant suffered shortening of leg. It was further alleged that OP3 did not conduct necessary tests, including x-ray. The complainant visited the OP3 on 03-04-2003, but found no improvement, he could barely walk a few steps. Therefore, on 09-04-2003, the complainant approached PGI wherein fresh surgery for THR was advised at the cost of Rs.1,50,000/-. Therefore, complainant contacted OP3. He admitted about failure of previous surgery and gave fresh estimates of surgery on 06-06-2004. The Doctors at PGI expressed before complainant that due to infection the complainant would need extensive treatment for removal of wire. He underwent surgery in PGI during period 04-04-2004 to 15-04-2004. Therefore, the complainant alleged that the OP3 were indulged into unfair trade practice. The hospital had no necessary instruments, skill. It was not well equipped to perform such operations. Therefore, the complainant sought compensation of Rs.90,00,000/- along with interest by filing a complaint before the Haryana State Consumer Disputes Redressal Commission (for short, the State Commission).
The State Commission dismissed the complaint. So the complainant filed this first appeal. After due diligence the court dismissed the appeal.
The court noted decision in Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634 wherein the Hon’ble Supreme Court held that, “in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable, if the course of action chosen by him was acceptable to the medical profession.
