If the treatment given by Doctor is found to be proper, the Expert opinion, though adverse, has no significance

It’s a great relief for Doctors by National Commission in its judgment dated 20/09/2016, in the case of DR. SHRIKANT V. MUKEWAR V/s. VIMAL & 2 ORS.

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Lets see the facts in nutshell :

1. The original Complainant ( patient) was the known case of COPD i.e. chronic obstruction pulmonary disease, i.e. difficulty in breathing and there was obstruction to the air flow.
2.It was alleegd that the treating Dr was just sitting hin his chamber and did not pay any attention to Patient. As the condition of the patient deteriorated, he was advised to shift to another hospital for want of life supporting system.
3. Tehreafter the patient was shifted to another hospital and in all these events, patient had to incur huge expenses and hence case for damages of Rs.2 lakhs was filed.
4. The District Commission dismissed the Complaint, but the State Commission at Nagpur allowed the complaint to the tune of Rs.1 lakh + Rs.10,000/- towards mental pain and agony. Hence the Dr. preferred appeal to National Commission.

Held :

1. On perusal of medical record, it clearly goes to show that the patient was treated with proper antibiotics alongwith proper blood investigations and ultrasound abdomen. The patient was also examined by different doctors.The pleural tapping was also done. The patient was also given blood transfusion without any complications
2. Dr. Vijay M. Gedam, Civil Surgeon at Nagpur, who was an expert gave an opinion that the Treatment given by Appellant to the patient was not proper.
3.The treatment given was with proper antibiotics and medicines. The patient was under close monitoring by the different doctors in the OP 1 Hospital . Therefore, expert opinion of Civil Surgeon has no significance.
4. It relied on the celebrated judgment of Hon. Apex Court in the Case of Achutrao Hari Bhavu Khodwa Vs. State of Maharashtra 1996 (2) SCC 634 wherein it has been held as :
“The skill of medical practitioners differs from Doctor to Doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing Negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a Doctor treating a patient, but as long as a Doctor acts in a manner which is acceptable to the Medical Profession, that has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the Doctor to be guilty of Negligence .”

It’s a Great relief to Doctors. Sincerity and honesty pays…
It’s a practice to get independent expert opinion in Medico legal Cases. In Martin F Dsouza V/s. Mohd. ishfaq, (AIR 2009 SC 2049) the Hon. Apex Court held that an Expert opinion is must before filing the Medical Negligence and observed that “The courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists.”
However this view was not accepted by the later judgment of Supreme Court in the case of V.Krishna Rao V/s. Nikhil Superspeciality Hospital(2010) 5 SCC 513. It was observed therein that “In the opinion of this Court, 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 an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion”

Thus even if Consumer Court has discretion to call for the Medical Expert opinion, there is no embargo if the party during Evidence produces expert opinion in support of its case.. . Ultimately whether to accept the Opinion or not is always the discretion of the Court, as there are number of other factors which are required to be taken in to consideration while deciding the case..

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Adv. Rohit Erande
Pune ©

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