TaxTMI 
TaxTMI 
2009 (5) TMI 1011
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....and 2 herein (for short, `the complainants') and cost of Rs. 5,000/-. 2. The brief facts of the case are thus: On March 30, 1996, Smt. Harjit Kaur (wife of complainant No. 1 and mother of complainant No. 2) received accidental burns while making tea on the stove. She sustained 50% TBSA III burns involving both upper limbs, part of trunk and most of both lower limbs. Smt. Harjit Kaur was taken to Daya Nand Medical College and Hospital, Ludhiana immediately where she responded to the treatment well. She remained admitted in Daya Nand Medical College and Hospital upto April 19, 1996. Since the treatment at Daya Nand Medical College and Hospital was expensive, the complainant No. 1 decided to shift his wife to PGI for further treatment. On April 19, 1996, Smt. Harjit Kaur was admitted in PGI, Chandigarh. Dr. Varun Kulshrestha, Senior Resident Doctor, Department of Plastic Surgery attended to her. The condition of Smt. Harjit Kaur started improving at PGI. On May 15, 1995, she was transfused A+ blood which was her blood group. On May 20, 1996, the patient was transfused B+ blood group in the afternoon although her blood group was A+. On the night of May 20, 1996, the uri....
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....g doctor(s)/staff in transfusion of wrong blood group to the patient which resulted in death of Smt. Harjit Kaur. The State Commission in its order dated February 1, 2000 held that PGI was liable to pay sum of rupees two lac to the complainants out of which 3/4th was to be put in the fixed deposit in favour of the minor son Amandeep Singh (complainant No. 2) and 1/4th amount to be paid to the complainant No. 1. The State Commission also awarded the cost of Rs. 5000/-. 6. PGI challenged the order of the State Commission in appeal before the National Commission but without any success. 7. The learned Counsel for PGI raised the same contentions before us which were raised before the National Commission that the cause of death of Smt. Harjit Kaur was Septicemia and not mismatched blood transfusion. He would submit that Smt. Harjit Kaur recovered from mismatched blood transfusion given to her on 20th and 21st May, 1996; her hemoglobin level was brought up and her vital organs started functioning normal. The learned Counsel would submit that Smt. Harjit Kaur died due to burn injuries and the other connected reasons arising out of said injury and not due to mismatched blood transfus....
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....arty complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort. 12. Insofar as civil law is concerned, the term negligence is used for the purpose of fastening the defendant with liability of the amount of damages. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. 13. In Syed Akbar v. State of Karnataka - 1979CriLJ1374 , this Court dealt with in details the distinction between negligence in civil law and in criminal law. It has been held that there is a marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyon....
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....on & Powell state that mistakes made in the course of treatment may be purely physical; purely intellectual or they may fall somewhere between the two. Whichever form the mistake takes, there are two separate questions to consider : (i) whether the defendant made a "mistake"; (ii) if so, whether the mistake was one which a reasonably careful and skilful medical practitioner would not have made. The claimant must, of course, succeed on both questions in order to establish negligence. 20. It needs no emphasis that in the medical negligence actions, the burden is on the claimant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioner's breach of duty. In the absence of evidence to the contrary adduced by the opposite party, an inference of causation may be drawn even though positive or scientific proof is lacking. 21. `The Physiological Basis of Medical Practice (Eight Edition)' by Charles H. Best and Norman B. Taylor in Chapter 26 deals with transfusion; blood groups. In respect of incompatible transfusions, while dealing with its effects, it is stated that if blood of the wrong (incompatible) ABO blood group ....