EXPERT OPINION NO MORE MANDATORY;SAID SUPREME COURT 

Once again medical negligence cases are in the news. Martin D’souza v/s Mohd Ishfaq case had put a big barrier on admission of medical negligence cases before consumer courts by making expert opinion mandatory before sending notice to the respondent. The issue had brought a flood of objections and appeals from the affected groups. But once the Supreme Court decided that no notice was to be given to doctors before expert opinion, it became binding for all lower courts. Now the same Apex court has reversed its stand by another pronouncement on 8th March 2010 in the matter of V Krishna Rao v/s Nikhil Superspeciality Hospital & others by holding that:

“Expert opinion is needed to be obtained only in appropriate cases of medical negligence cases and the matter may be left to the discretion of the consumer forums especially when the retired judges of Supreme Court and High courts are appointed to head the national commission and state commission”

While saying so, the Apex court referred to the earlier decision of this court pronounced by the larger bench comprising three judges bench in the matter of Dr J.J. Merchant and others v/s Shrinath Chaturvedi 2002 CTJ 757SC [CP] and expressed its opinion that the general guidelines given in Martin D’souza case are contrary to the findings of the Supreme court’ larger bench. The court now notes:

“The general directions given in Para 106 in D’Souza case to have an expert evidence in all medical cases is not consistent with the principle laid down by the larger bench accepted as position that only in appropriate case, expert opinion may be made and the matter is left to the discretion of consumer forums and commissions”

Not only this, the order has also been found contrary to the doctrine of ‘Res Ipsa Liquatur’ discussed in detail in the first landmark judgment pronounced by three judges bench in the matter of Indian medical association v/s V.P.Shantha & others 1995 CTJ 969SC{cp}as discussed below:

“If the general directions of Martin D’souza case are to be followed then the doctrine of Res Ipsa Liquatur which is applied in England and in Indian medical association v/s V.P.Shantha & others case would be redundant and shall be contrary to the three judges bench order wherein it was held that there ma cases which do not raise complicated questions and deficiency of service may be due to obvious faults which can be easily established such as removal of wrong limb, performance of operation on wrong patient, giving injection or drug to allergic patient without test, leaving swabs or other surgical items in the body during operation ”

The popular judgment which discussed elaborately on criminal as well as civil remedy available to consumers in Jacob Mathew v/s State of Punjab &others 1995 CTJ 1085 SC{CP}was also discussed while coming to the conclusion in the present case in hand. It was felt that the reference made to Jacob case in Martin D’Souza judgment was conceptually not taken in the proper spirit and opinion was not understood correctly. The direction in Jacob case for consulting the opinion of another doctor before proceeding with criminal case investigation was confined only to criminal complaints and not to earlier cases. The reason why the larger bench did not equate the two is obvious in view of the jurisprudential and conceptual difference between cases of negligence in criminal and civil matters This aspect has been recently discussed in another case of Malay Kumar Ganguly v/s Dr Sukumar Mukherjee and others 2009 CTJ 1064 SC[CP]

In view of all observations above, the apex court in the present case disagreed with the general directions given by this court in Martin D’Souza case which had created much confusion and now by reversing the same holds, that there cannot be a mechanical or straight jacket approach that each and every case of alleged medical negligence must be referred to expert opinion. The parameters set and drawn in Bolam test are once again called for. The court emphasized that

“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 the facts of the case are such that it cannot be resolved by the members of fora without the association of expert opinion. If decision is taken to obtain expert opinion in all cases and medical negligence is proved on the basis of expert evidence, the efficacy of remedy provided under this act would be illusory”

There still remains one doubt in the minds of many as to whether the Supreme court can go back on its previous decisions whereas there is nothing in the constitution of India which prevents Supreme court from departing from a previous decision, if court is convinced that such contradictory order are adversely affecting the general public, the error can always be rectified.

Dr Prem Lata 

 

 

 

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