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Proof
is needed to establish negligence
Dr
Suganthi Iyer -
 The
law of Evidence by far is the most important of the procedural
laws. It is required to prove that the defendant has been
negligent. The plaintiff has to present all the facts
in issue before the court. These are the basket of facts
which assess the plaintiff to prove that the practitioner
was actually negligent.
The
other important issue in any litigation is what is called
as the burden of proof, the strict meaning of which is
that if no evidence is given by the party on whom the
burden is cast then the issue must be found against him.
Also important is the onus of proof. The onus of proving
any particular fact lies on the party who alleges it and
not on him who denies it. The Indian Evidence Act makes
it clear that the burden of proof in a suit would lie
on that person who would fail if no evidence at all were
given on either side.
In
cases of negligence too, the burden of proving negligence
as the cause of accident lies on the party who alleges
it and consists of establishment of duty of care, breach
of duty and damage caused due to breach of duty. Mere
proof of happening of an accident is not, as a general
rule, sufficient evidence to support the action. The exception
to the rule occurs when the facts established are such
that the natural and proper inference arising from them
is that the injury complained of was caused by the defendant’s
negligence i.e. Res Ipsa Loquitur.
In
Hucks V Cole it has been noted that "a charge against
a medical doctor is serious and stands on a different
footing as against the driver of a motor car as the consequences
are more serious. With the best will in the world things
sometimes may go amidst in surgical operations or medical
treatment. A doctor cannot be held negligent just because
something went wrong. He is liable only when he fell below
the standard of an reasonable competent practitioner in
his field that his conduct is inexcusable".
The
above are depicted in the case law Kailash Kumar Sharma
Vs Dr Hari Charan Mathur which is illustrated herein.
The Complaint before the State Commission was that the
Complainant approached the OP in February 1991 seeking
his advice for operation of cataract in one of his eyes.
After mutual discussion, the Complainant was operated
upon and an intraocular lens (IOL) of foreign make was
fitted on 7.3.91. That day evening the OP came to the
room of the Complainant and told him that the operation
was successful. However, the day after the operation,
the Complainant noted that he could not see. The OP told
him that he will get complete vision within 40 days. The
Complainant alleged that he checked every week for about
60 days but there was no restoration of vision in the
eye. The Complainant became depressed as another patient
by his side in the same hospital who did not get the IOL
fitted was able to read the next day. Other doctors whom
the Complainant consulted told that he cannot have vision
unless an eye is donated for him. The Complainant, therefore,
filed a complainant before the State Commission claiming
Rs. 5,00,000/- as compensation and Rs. 17,000/- towards
amount spent by him for the operation.
The
OP made the following submissions : (i) The Complainant
was under his treatment in the hospital since 15.9.1980,
(ii) The record in the hospital about the patient on 18.2.91
showed that his left eye could not be improved any further
with glasses consequent to which he was advised a cataract
operation of that eye, (iii) The Complainant was apprised
of all surgical options and advantages and risks therein,
on which he deliberated for over a fortnight and confirmed
the choice of the operation on 6/3/91; he signed a consent
form whereby he agreed to have an intraocular lens implanted,
of his free will and accepted responsibility for all its
benefits and ill-effects, (iv) The OP had taken all due
care in the conduct of the operation and was not negligent
in anyway, (v)There was always a small chance that the
human body might reject the implant of a foreign body,
(vi) Any allergies tat may develop following reactions
to such implantation can be countered by drugs which was
the course adopted by the OP in the instant case and while
the Complainant was already responding to such a course,
he voluntarily discontinued the treatment after 16.8.91,
(vii) He did not come for revaluation thus contributing
to the damage of his eye, (viii) The complainant had been
visiting the OP for over eleven years because of the former’s
faith in the latter, (ix) The deficiency, if any, in the
quality of the lens cannot be adjudged as the same is
implanted in the complainant’s eye.
The
State Commission after considering the entire record including
affidavits of the parties and also the case law on the
matter exhaustively, came to the conclusion that the Complainant
had failed to discharge the burden of negligence of the
OP. The Commission held on the basis of material on record
that there was no negligence of the OP before, during
and after the operation and that, therefore, there was
no deficiency in service on the part of the OP. The State
Commission dismissed the Complaint. Aggrieved by this
order, the Complainant has filed this appeal before the
National Commission.
In
the Appeal, the Appellant has reiterated his submissions
he had made before the State Commission. He has pointed
out that when on his not getting his vision after the
operation he got his eye examined by eye doctor who told
him that he lost his full eye vision because the IOL implant
was not properly done. The Respondent has pointed out
that the Apellant’s allegation about improper implantation
of IOL based on the opinion of another doctor was a new
allegation and that there was no evidence to substantiate
the same. Tne National Commission carefully went through
the records and heard the Counsel for the Respondent -
OP. While the Appellant had a real grievance about the
loss of vision, he had not produced any document or any
other evidence to establish negligence or deficiency of
service on part of the Respondent - OP.the Complaint was
dismissed.
(The
author is senior manager, professional services, P D Hinduja
Hospital, Mumbai. She may be contacted at drsiyerin@yahoo.co.in)
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