Maran Ghosh Vs State of Tripura and Others

S.C. Das, J.@mdashThis writ appeal is directed against the judgment and order, dated 18-11-2011, passed by a learned Judge of this Court, in WP (C) No. 320/2011, under An. 226 of Constitution of India. We have heard learned counsel. Mr. P. Roy Barman, for the appellants, and gone through the impugned judgment and other materials on record.

2. Haridhan Ghosh, father of the appellant, was admitted in GB Hospital, on 3-1-2000, at about 11.30 a.m., while he was suffering from Bronco-Asthma and internal respiratory trouble. Doctors attended him and put him on oxygen. The allegations, made in the writ petition, were that the oxygen cylinder was not functioning properly and that some medicines were prescribed, but those were not administered to the patient by the attending nurses, the patient became restless with respiratory trouble and developed other symptoms and despite request of the writ petitioners, the patient was not attended to properly and due to sheer negligence of the doctors and nurses of the hospital, Haridhan died in the hospital. The writ petitioners, therefore, claimed compensation of Rs. 5,00,000/- and also prayed for issuing other directions to the hospital authorities.

3. Respondents contested the case by filling counter affidavit denying the allegations made in the writ petition and stating that Haridhan Ghosh was admitted, on 3-1-2000, at about 11.30 a.m. with chronic obstructive pulmonary disease. Type-II. respiratory failure with past history of I.H.D. The doctors, immediately, attended him and supplied oxygen, but the condition of the patient was very precarious at the time, when he was brought to hospital and he was in irreversible respiratory failure, hypoxic and shock stage. It was also stated, in the counter affidavit, that in such a critical stage, a rare percentage of patients can recover even in an advanced medical institution and, in the present case, all possible treatments were rendered to the patient. It was further stated that regarding the negligence, on the part of attending staff, a departmental proceedings was contemplated.

4. Learned single Judge, considering the allegations made in the writ petition and the counter thereto, filed by the respondents, observed that there were disputed questions of fact involved in the writ petition and, on this basis, question of maintainability of the writ petition was also raised. In Para 21 of the judgment, learned single Judge held thus :

This Court exercising its power of judicial review under Article 226 of the Constitution of India cannot make a roving enquiry to find out the veracity or otherwise of the statements made by the parties. In absence of any definite material regarding criminal negligence on the part of the doctors and staff, this Court cannot pass any order towards payment of compensation, which will also has to be quantified on the basis of the facts.

While observing as above, the learned single Judge dismissed the writ petition holding that the petitioners are not entitled to any relief, in the writ petition, by way of invoking public law remedy, but has held that petitioners may pursue private law remedy if they are so advised.

5. Learned counsel, Mr. Roy Barman, has submitted that the learned single Judge has failed to appreciate the gravity of the allegations made in the writ petition, which may be presumed to have been impliedly admitted by the respondents that there was negligence on the part of the doctors attending the patient and the medicine was not administered, which was prescribed, and under such circumstances, it was a fit case to award compensation to the writ petitioners.

6. In support of his contention, learned counsel, Mr. Roy Barman, has failed to show that the basic allegations, made in the writ petition, regarding alleged negligence, on the part of the doctors attending the patient, have been admitted by the respondents. Moreover, the names of the attending doctors and nurses were also not mentioned in the writ petition to substantiate the manner of negligence alleged to have been committed. In such circumstances, the State-respondents could not have been held responsible in public law remedy.

7. In a case of medical negligence, unless expert evidence is produced, the writ Court cannot arrive at a conclusion that negligence was actually there on the part of the doctors attending the patient.

8. The Apex Court, in the case of Martin F. D''Souza Vs. Mohd. Ishfaq, , has held that in a case of medical negligence, ordinarily, the Consumer Forum or Criminal Court should, first, refer the matter to a competent doctor or a committee of doctors specialized in the relevant field and when such a doctor or committee reports that there is a prima facie case of medical negligence, only then issue notice to the doctor or hospital concerned. The Court has held that the Courts and Consumer Forum are not experts in medical science and, therefore, they should not substitute their own views over that of the specialists.

9. In the case of Jacob Mathew Vs. State of Punjab and Another, . the Apex Court has held that the medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent doctor. Harm resulting from mischance or misadventure or through an error of judgment would not necessarily attract such liability. In the case in hand, except some allegations, made in the writ petition, regarding negligence on the part of doctors and nurses attending the patient in the hospital, which stood denied by the respondents, no expert opinion, on the issue, was placed before the Court to take any action amenable to judicial review. Under such circumstances, the decision of the learned single Judge, in the writ petition, was wholly justified and we find nothing to interfere with the decision. The writ appeal accordingly stands dismissed.