When the Consumer Protection Act, 1986 was passed many patients filed cases against doctors alleging negligence in the medical practice against them. As a consequence, many legal decisions were made on the issue of what are considered as negligence and what is needed to prove the same.
Negligence means infringement of the legal duty as it also means carelessness on the part of the doctor in performing their duty. Persons who deliver medical advice and treatment declare that they have the knowledge and skill to make a decision regarding the treatment and also to prescribe the same. As in the case Haryana vs Smt Santra, a responded who is a poor labouring woman already having seven children went for sterilization but got pregnant and gave birth to a girl child. Obviously Sterilization operation was a failure. Smt. Santra filed a suit of Rs two lakhs for negligence which was ultimately ruled for an amount of Rs 54,000 with interest at a sum of Rs 12 per cent per annum. Two appeals were produced against this decree in the court of District Judge, Gurgaon, but both were dismissed. Under these circumstances present Special Leave Petition was filed in the court.
The Sterilization Scheme was launched by the Haryana Government and as per this scheme Smt. Santra visited Chief Medical officer, Gurgaon for sterilization in 1988. Operation was performed on her and Santra was given assurance that operation had been successful and she had been completely sterilized. But unfortunately she again conceived. The trial court decided that it was a complete case of negligence. “The act of the DW 2 Dr. Sushil Kumar proves that he did not perform his duty to the best of his ability and with due care and caution and due to the above said act, the plaintiff has to suffer mental pain and agony and burden of financial liability."
Doctors in India must be responsible and held liable for their services with certain exceptions. In a case of free treatment wherever it may be their duties would not be regarded as services as specified in Section 2 (1)(0) of the Consumer Protection Act 1986.
It is also a fact that no one is completely perfect and even a most competent doctor can make mistakes. As it is said, “An error of judgment constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care would not have made the same error” (4). As in a case of Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole, the Supreme Court ruled that doctor has adhered to a practice which is appropriate as per authoritative body of medical profession; he or she will not be held negligent if something goes wrong.
Doctors must observe a decree of competence however they cannot warranty of the perfection or a guarantee of cure. If a doctor has adopted appropriate treatment and procedure and still something goes wrong then he or she should not blamed.
Any complaint of negligence should not be implied on the doctors without prima facie evidence in the same. But the case of Smt Santra, negligence of Dr Sushil Kumar cannot be ignored. He issued her certificate of perfect sterilization assuring she will not conceive.
But on observation, she was operated on her right tube and not the left one, and was not also called for second operation. This shows Dr Sushil Kumar Goel as guilty and Smt. Santra eligible for claiming full damages from the State Government as also she has to take care of her child till she attains puberty. This shows there is no merit in this appeal and stands dismissed but without any additional cost.