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1. WHETHER THE TRIVIK INSTITUTE OF MEDICAL SCIENCES IS LIABLE FOR

MEDICAL NEGLIGENCE?

1.1 The Response to the above issue is in negative.

1.2 The complaint filed by Ramanna the complainant before the Bendhakalooru District
Consumer Commission that the Trivik Institute of Medical Sciences was negligent in
providing service to Ramanna is not true.

1.3 Meaning of Negligence

Negligence is simply the failure to exercise due care. The three ingredients of negligence are
as follows:

1. The defendant owes a duty of care to the plaintiff.

2. The defendant has breached this duty of care.
3. The plaintiff has suffered damages due to this breach.

Medical negligence is no different. It is only that in a medical negligence case, most often, the doctor is
the defendant.

Duty of care

The duty owed by a doctor towards his patient, in the words of the Supreme Court is to “bring to his
task a reasonable degree of skill and knowledge”

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and to exercise “a reasonable degree of care” (Laxman vs. Trimback[1]). The doctor, in other words,
does not have to adhere to the highest or sink to the lowest degree of care and competence in the light
of the circumstance. A doctor, therefore, does not have to ensure that every patient who comes to him
is cured. He has to only ensure that he confers a reasonable degree of care and competence. Here in
the above case of Ramanna doctors had a reasonable degree of skill and knowledge so when
Ramanna consulted Trivik Hospital of Medical Sciences for acute abdominal pain and
constipation and they diagnosed him with umbilical hernia, due to the advanced stage it had
turned into the strangulated hernia and they informed him about the immediate surgery.

Bolam v. Friern Hospital he was voluntary patient at hospital and was suffering from recurrent
depression and doctors said him to undergo ect (electro conculsive therapy) even he agreed, it
was unmodified ect was given because of this he had a fracture of the hip he approached court
claming the doctor and the hospital was negligent for not restraining him, not giving muscle
relascant, not giving him anesthesia, not informing about the risk.

Mc nair judge held “ A doctor is not guilty of negliegnece, if he has acted in accordance with a
practicws accepted as proper by a responsible body of medical men skilled in that particular art.

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Emergency Cases are not liable.

What complications may occur without treating strangulated hernia?

If left untreated, the strangulated fold of tissue or small intestine will be cut off from its blood
supply. It can become gangrenous within hours. As the tissue dies off, it releases dangerous
toxins into the bloodstream. That can lead to sepsis and eventual death.

In Dr. T.T. Thomas v. Elissar(3) it has been held by the Kerala High Court that failure to perform
an emergency operation to save the life of a patient amounts to a doctor’s negligence. Here in
the above case, Ramanna’s umbilical hernia was in an advanced stage it had already turned into
strangulated hernia which required immediate surgery. So, doctors of Trivik Hospital of medical
sciences have saved the life of the patient.
Here in the above case, it is been mentioned that Ramanna requires immediate surgery. So,
doctors have followed the principle laid down in the case of T.T. Thomas v. Elissar. That the
doctor should attend to the patient and perform an emergency operation. Plus the operation
was successfully done. The patient has not suffered any problems during the operation and
after the completion of the operation.

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Breach of Duty

Breach of duty means non-observance of due care which is required in a particular situation.
What is the standard care required? The standard is that of a reasonable man or of an ordinary
prudent man. If the defendant has acted like a reasonably prudent man, there is no negligence.
Here the doctors of Trivik hospital acted like a reasonably prudent man they informed
everything about the hernia and the immediate surgery and the operation was also concluded
successfully. In Blyth v. Birmingham waterworks Co(4) “Negligence is the omission to do
something which a prudent and reasonable man would not do”

In Vinod Jain v. Santokba Durlabhji Memorial Hospital & Anr.[5], the Supreme Court has mentioned the
factors to be considered while establishing the liability in medical negligence cases. In this case, the
appellant challenged the NCDRC in the apex court i.e. the Supreme Court of the country. The Supreme
Court upheld NCDRC’s judgment and made the below-mentioned observations:

 A doctor cannot be said to be negligent if his acts are in accordance with the set guidelines,
merely because a body is there which holds a contrary view.

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 A doctor need not have special expertise in medicine and it is enough if he exercises ordinary
skills that an ordinary man of that profession would be able to do.

Here it clearly says that duty doctor Dr. Sarang who has no special expertise in Anesthesia
can exercise the skill of an ordinary man of that profession would be able to do. Dr. Sarang
had to do it because of the emergency in the case.

 A doctor cannot give assurance for any recovery as it is not in his hands and he can only try his
best. The only assurance he can give is that he holds requisite skills in the profession and
while undertaking this he should perform his duties as a reasonable man of the profession
and in accordance with the standard of care in the medical profession.  

1.4. Damages

It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The
plaintiff has also to show that the damage thus caused is not too remote a consequence of the
defendant’s negligence. Hernia is caused due to post work after surgery

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In Morgan v. Sim(6) “The party seeking to recover compensation for damages must make out that the
party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he
must show that the loss is to be attributed to the negligence of the opposite party. If, at the end, he
leaves the case in even scales, and does not satisfy the court that if was occasioned by the negligence or
default of the other party, he cannot succeed.”

Consent

Consent for anesthesia has traditionally been considered as “implied” once the patient consents
to surgery, with the surgical consent stating that anesthesia will be needed for the surgery and
there are associated risks with anesthesia.

In Dr. T.T. Thomas vs. Elisa,(7)  Finally, the court delivered a verdict in favor of the plaintiffs stating that
consent under such an emergent situation is not mandatory.[15] It is interesting to note the following
observations:

“The consent factor may be important very often in cases of selective operations, which may not be
imminently necessary to save the patient's life. But there can be instances where a surgeon is not
expected to say that ‘I did not operate on him because, I did not get his consent’. Such cases very
often include emergency operations where a doctor cannot wait for the consent of his patient or
where the patient is not in a fit state of mind to give or not to give a conscious answer regarding
consent.

Therefore, the Trivik Hospital authorities and the doctors of the hospital are not liable for the medical
negligence.

WHETHER RAMANNA IS ENTITLED TO COMPENSATION?

The doctor connected to Trivik Institute of Medical Sciences Hospital didn't influence any control in the
post surgency of the complainant. Appropriate treatment and direction was given to the complainant
by the Hospital and the concerned doctor and without any trace of negligence.

It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The
plaintiff has also to show that the damage thus caused is not too remote a consequence of the
defendant’s negligence.

Jacob Mathew case No sensible professional would intentionally commit an act or omission which
would result in loss or injury to the patient as the professional reputation of the person is at stake. A
single failure may cost him dear in his career.

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Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied
with extreme care and caution to the cases of professional negligence and in particular that of the
doctors. Else it would be counter productive.

Simply because a patient has not favourably responded to a treatment given by a physician or a surgery
has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.

In Martin F. D'Souza v. Mohd. Ishfaq9 , this court observed that the doctor cannot be held liable for
medical negligence by applying the doctrine of res ipsa loquitur for the reason that a patient has not
favourably responded to a treatment given by a doctor or a surgery has failed. There is a tendency to
blame the doctor when a patient dies or suffers some mishap. This is an intolerant conduct of the family
members to not accept the death in such cases.

The Respondent was not negligent. He took reasonable care that was needed in order to improve the
the Appellant’s condition. He did what was necessary and could not be held liable for being negligent.
The appellant on having slight tinnitus getting advice from the respondent to stop taking Amikacin didn’t
adhere to the advice and continued to take Amikacin, Further, on he did not complain about it further
and was conversing with the doctors normally. The doctor was not negligent and cannot be held liable
to pay compensation.

Here in the above case the doctors of trivik hospital advised to take bed rest for 6 weeks and do not
work. Ramanna without following the advice of the doctors he himself negligently post surgery.
Ramanna did not take any due care of himself. The same principle used in Martin F.D’souza case should
be used in Ramanna’s case also here the trivik hospital doctors were not negligent and cannot be held
liable to pay compensation.

Therefore, Ramanna is not entitled to compensation the Trivik Hospital authorities and the doctors of
the hospital are not liable to pay any compensation to Ramanna.

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PRAYER

Prayer

WHEREFORE, in the lights of the facts used, issues raised, arguments advanced and authorities citied the
counsel for the Complainant in the most humbly and respectfully prays that this Hon'ble Bendhakalooru
District Consumer Commission please to declare that

 Set the Respondent free from paying the compensation incurred by the
complainant.

The District Consumer Commission may also be pleased to pass any other order, which this Hon'ble
District Consumer Commission may deem fit in the light of justice, equity and good Conscience