ramesh chandra agarwal vs regency hospital ltd sc 2009 expert opinion can not be accepted without...
TRANSCRIPT
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
1/18
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
2/18
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
3/18
pro3ided the appellant some relie'" but le't him handicapped due to
his legs being rendered useless and loss o' control o3er his -ladder
mo3ement.
*/ COMPLAINT BEFORE THE NATIONAL COMMISSION The appellant" being
impaired by the treatment" 'iled a complaint be'ore the ational
Consumer !isputes Redressal Commission 4hereina'ter re'erred as
8ational Commission;/ alleging medical negligence on the part o'
respondents $ to *.
The claim o' the appellant be'ore the ational Commission was as
under 0
i/ That the correct method o' operating his in'ection was the
Antero-Lateral Decompression (ALD)and notLaminectomy.
ii/ That the complainant1appellant contends that he was 2ept only
'or one wee2 on the Anti6Tubercular drugs be'ore the surgery
which is a much shorter duration than the accepted medical
practice.
iii/ That there was no re>uirement o' immediate surgery.
i3/ That the respondent no.%" who was a eurosurgeon did not
consult the Orthopedic surgeon" e3en though he was not
capable to handle the case o' complainant1appellant without
consulting Orthopedic surgeon.
Hence" it was claimed that there is gross negligence and carelessness
on the part o' the respondents in treating the complainant1appellant"
*
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
4/18
and there'ore" respondents be directed to pay a sum o' Rs. %%",,",,,16
with interest at the rate o' %9? per annum to the complainant.
!" NATIONALCOMMISSIONJUDGMENT
A'ter considering the case presented by the appellant and the
respondents and loo2ing through the a''ida3its 'iled by the parties" the
ational Commission has come to the conclusion that medical
negligence is not pro3ed against the respondents. The Commission
has concluded0
85edical negligence is when a doctor did something
which he ought not to ha3e done or did not do what he
ought to ha3e done. The doctors were >uali'ied
pro'essionals. They did whate3er was re>uired to be
done o' euro67urgeons.
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
5/18
contended that pursuant to the order passed by the Commission dated
+.$.%,,," the appellant had submitted all the records relating to his
treatment on 9.%.%,,, and had re>uested the Registry o' the
Commission to 'orward the same to !r. A.B. 7ingh" eurologist" who
had been re>uested to o''er his opinion on the surgery done to the
appellant. Howe3er" the Registry had not sent the documents
'urnished by the appellant to the e@pert and" there'ore" the e@pert
could not o''er his opinion and thereby" the appellant was denied the
bene'it o' ha3ing an opinion which would ha3e pro3ed his case be'ore
the Commission.
/ The respondents in their counter a''ida3it 'iled be'ore this court" ha3e
denied the assertions and allegations made by the appellants and 'urther
usti'ied the udgment o' the ational Commission.
/ De ha3e heard the learned counsel 'or the parties to the lis.
(/ POTT*SDISEASEANDPROTOCOLOFTREATMENT
i) The Disease
#ottEs disease results 'rom an in'ection o' the bone by the
5ycobacterium Tuberculosis bacteria 3ia a combination o'
hematogenous root and lymphatic drainage. The organism may stay
dormant in the s2eletal system 'or an e@tended period o' time be'ore
the disease can be detected.
+
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
6/18
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
7/18
its location and other characteristics. -ac2 pain associated with the
lumbar spine 3ery o'ten a''ects the patientEs ability to mo3e" and the
muscles o3erlying the a''ected 3ertebrae may 'eel sore or tight. #ain
resulting 'rom hea3y li'ting usually begins within %9 hours o' the
o3ere@ertion. 5ost patients who do not ha3e a history o' chronic pain
in the lower bac2 'eel better a'ter 9 hours o' bed rest with pain
medication and either a heating pad or ice pac2 to rela@ muscle
spasms.
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
8/18
Ors./ FCriminal Appeal os. $$($6$$(9 o' %,,+ alongwith Ci3il
Appeal o. $% o' %,," decided on ..%,,(G.
uestion in3ol3ed is
assumed to be not within the court:s 2nowledge. Thus cases where the
science in3ol3ed" is highly specialiIed and perhaps e3en esoteric" the
central role o' e@pert cannot be disputed. The other re>uirements 'or
the admissibility o' e@pert e3idence are0
i/ that the e@pert must be within a recogniIed 'ield o' e@pertise
ii/ that the e3idence must be based on reliable principles" and
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
9/18
iii/ that the e@pert must be >uali'ied in that discipline.
F7ee =rrors" 5edicine and the Law" Alan 5erry and Ale@ander
5cCall 7mith" %,,$ ed." Cambridge Jni3ersity #ress" p.$G
$%/ 7ection 9+ o' the
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
10/18
7ection 9+ o' the =3idence Act which ma2es opinion o' e@perts
admissible lays down" that" when the court has to 'orm an opinion
upon a point o' 'oreign law" or o' science" or art" or as to identity o'
handwriting or 'inger impressions" the opinions upon that point o'
persons specially s2illed in such 'oreign law" science or art" or in
>uestions as to identity o' handwriting" or 'inger impressions are
rele3ant 'acts. There'ore" in order to bring the e3idence o' a witness
as that o' an e@pert it has to be shown that he has made a special
study o' the subect or ac>uired a special e@perience therein or in
other words that he is s2illed and has ade>uate 2nowledge o' the
subect.
$9/
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
11/18
the conclusions so as to enable the Kudge to 'orm his independent
udgment by the application o' these criteria to the 'acts pro3ed by
the e3idence o' the case. The scienti'ic opinion e3idence" i'
intelligible" con3incing and tested becomes a 'actor and o'ten an
important 'actor 'or consideration along with other e3idence o' the
case. The credibility o' such a witness depends on the reasons stated
in support o' his conclusions and the data and material 'urnished
which 'orm the basis o' his conclusions. 47ee 5alay Bumar anguly
3s. !r. 7u2umar 5u2heree and Others/ FCriminal Appeal os.
$$($6$$(9 o' %,,+ alongwith Ci3il Appeal o. $% o' %,,"
decided on ..%,,(G.
$)/ uestion put to him.;
$$
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
12/18
$/
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
13/18
$(/ The Commission by its order dated ).*.%,,, had re>uested !r. A. B.
7ingh" eurologist" to gi3e his opinion on the surgery done in this
case.
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
14/18
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
15/18
%*/ The Commission in course o' its udgment has obser3ed 8that in
spite o' opportunity being gi3en" the complainant and his wi'e did
not o''er themsel3es 'or the cross e@amination and they ha3e 'ailed
to supply material to !r. A. B. 7ingh as mentioned in his report
dated $(.,.%,,," which could ha3e enabled him to gi3e a more
complete report. Also no e3idence o' any e@pert was led by the
appellant. or that matter none o' the parties 'iled any literature on
the subect to support their contentions in spite o' gi3ing them an
opportunity.;
%9/
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
16/18
$.(.%,,$" bringing to the notice o' the Commission the lac2 o' care
shown by the Assistant Registrar" who had 'ailed to 'orward the
records o' the treatment to the e@pert" and had re>uested to send the
records 'or reconsideration. This application was reected by the
Commission holding that the reconsideration o' the e@pert opinion at
this stage is not necessary.
%+/ The Commission while rendering its udgment has 'ailed to
appreciate that in such cases e@pert would not be in a position to
'orm a true opinion i' all the documents pertaining to the matter" on
which the opinion is desired" are made a3ailable to him. The
Commission on the application made by the appellant should ha3e
again directed 'or the e@pert opinion a'ter ma2ing all the records o'
the treatment a3ailable to the e@pert. The appellant should not su''er
'or the negligence o' the Assistant Registrar and also when the
Commission has itsel' stated in its udgment that supply o' material
to !r. A. B. 7ingh could ha3e enabled him to gi3e a more complete
report.
%)/
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
17/18
the e@pert" by 'iling an application be'ore the Commission dated
$.(.%,,$. This application was reected by the Commission holding
that the reconsideration o' the e@pert opinion at this stage is not
necessary. uested to pass 'resh order in accordance with law. o order as
to costs.
$
-
8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina
18/18
J.
G.S. SINGHVI 3
J.
H.L. DATTU 3
N%4 D%)'&,
S%(t%/%6 11, 2009.
$