Medicolegal

  
  





Cases
in favour of Doctors

  

|
Anaesthesist
| General
| Blood
T
ransfusion
| Cardio-Thoracic
Surgeon
 | Dentist

|


| Emergency
Care
| Ent Surge
on
|
Hospital/Nursing
Home
|
 Neurologist |

| Obstetric Gynaecology

|
Orthopaedics |

|
Ophthalmology

| Paediatricians |
Physician/General
Practitioner
|

|
Surgeon |

   

[
-: Cases in Doctor’s Favour :- ] – [
-: Cases in Patient’s Favour :- ]

      

SUPREME
COURT CASES

  
 

RIGHT TO PRACTICE TO TO PRACTICE ALLOPATHY

  • Dr. Mukhtiar Chand & Ors. v. The State of Punjab &
    Ors.: AIR 1999, SC 468


     

    In 1999 the Supreme Court in Dr. Mukhtiar Chand v. State of
    Punjab has held that Ayurvedic vaids and Unani hakims cannot
    practice allopathic medicine unless such right is conferred by
    State Law. The position with regard to medical practitioners of
    Indian medicine holding degrees in integrated courses is that:-
    if any State Act recognises their qualification as sufficient
    for registration in the State Medical register, the prohibition
    from them practicing allopathic medicine contained in Section 15
    (2) (b) of the Indian Medical Council Act, 1956 will not
    apply. 

       

    So far there is no provision in the State Acts viz. Bombay
    Medical Practitioners Act, 1938 or the Maharashtra Medical
    Practitioners Act under which the right to practice any system
    of medicine is conferred on practitioners of Indian medicine
    registered under those Acts. Definition of Indian Medicine under
    the Indian Medicine Central Council Act, 1970 means system of
    Indian Medicine commonly known as Ashtang Ayurveda, Siddha or
    Unani Tibb whether supplemented or not by such modern advances
    as the Central Council may declare by notification from time to
    time.

      

    The definition, however, enables such practitioners of Indian
    Medicine to make use of modern advances in various sciences such
    as Radiology, ECG, Blood picture report etc. for the purpose of
    practicing their own system. The flip side of this judgment is
    that practitioners of other systems of medicine cannot practice
    allopathic system of medicine unless a State Law permits it. By
    analogy, allopathic practitioners also cannot prescribe drugs
    belonging to another system of medicine unless permitted by a
    State Law. As abundant precaution allopathic practitioners
    should only prescribe drugs from their own system of medicine
    -the judgment of Poonam Verma vs. Dr. Ashwin Patel.

      

      


HOSPITAL

  

RIGHT OF CONFIDANTIALITY

  

  • Mr. X.  v. Hospital Z, A.I.R., S.C. 495 (1999)

       

    Again, this year the Supreme Court in Mr. X versus Hospital Z,
    A.I.R., S.C. 495 (1999) considered three important questions.
    The Indian Medical Council Act (102 of 1956) under Section 20-A
    and Section 33 covers doctor-patient relationship and requires
    the doctor to maintain secrecy in information obtained from the
    patient before, during or after initiating the relationship. The
    information of the patient obtained by the doctor should not be
    revealed except under certain circumstances.

     

    The law in England allows such disclosure under certain
    circumstances. Such exceptions permit disclosure with the
    consent of the patient or in the best interest of the patient.
    Or in compliance with a Court order or other legally enforceable
    duty and, in very limited circumstances, where the public
    interests would override the duty of confidentiality. Such
    circumstances would be in the investigation and prosecution of
    serious crime or where there is an immediate or future (but not
    a past or remote) health risk to others.

     

    In this case, the Supreme Court considered the issue whether
    disclosure by a doctor of the HIV positive status of a patient
    violated the duty of secrecy. The Court answered the question in
    the negative. The patient proposed marriage and the proposal had
    been accepted. The proposed marriage carried with it the health
    risk to an identifiable person who had to be protected from
    being infected. As regards the disclosure by the doctor of the
    HIV positive status of the patient it could not be said that the
    doctor was under a duty to maintain confidentiality on account
    of the Code of Medical Ethics formulated by the Indian Medical
    Council.

     

    The Court went further to say that right to life under Article
    21 of the Constitution of India included the right to privacy.
    But this right is not absolute and disclosure of the doctor of a
    patient’s HIV status to a person to whom this person is to get
    married is not violation to this fundamental right. The right
    under Article 21 may be lawfully restricted for the prevention
    of crime, disorder or protection of health or morals or
    protection of rights and freedom of others. Right of life of the
    lady with whom the patient was to marry would positively include
    the right to be told that a person with whom she was proposed to
    be married was the victim of a deadly disease which was sexually
    communicable.

     

    Further
    under Article 21 of the Indian Constitution, though right to
    marry is included in the right to life, this right is not
    absolute and has to be treated as a “Suspended Right”
    till he is cured of the disease.
    Till such cure, the right to marry cannot be enforced
    through a Court. In fact the Supreme Court said that a person
    who knows that he has a communicable disease is under a moral
    and legal duty to inform the woman with whom marriage is
    proposed. And that he was not physically healthy and that he was
    suffering from a disease which was likely to be communicated to
    her.

     

    In
    this situation, the right to marry and the duty to inform about
    his ailment are vested in the same person. Not informing the
    person, with whom such marriage is proposed, makes the person
    liable under criminal law — viz. sections 269 and 270 of the
    Indian Penal Code. These two sections envisage two separate and
    distinct offenses .By providing that if a person negligently or
    unlawfully does an act, which he knew, was likely to spread the
    infection of a disease, dangerous to life, to another person.
    Then such person would be guilty of an offense, punishable with
    imprisonment for the term indicated therein.

       

       


HIGH COURT CASES

 

PROFESSIONAL
HAZARD RESULTING IN HARM TO DOCTOR

  

  • Suraj Mal Chhajer v. State and others the Rajasthan High Court
    (AIR 1999 Raj. 82)


       

    In
    Suraj Mal Chhajer v. State and others the Rajasthan High Court
    (AIR 1999 Raj. 82) awarded interim compensation to the father of
    a deceased resident doctor who died due to contracting
    Hepatitis-B while in service. An Inquiry Committee had given a
    report in which it had stated that, “She might not have
    contracted the disease, had she been vaccinated earlier against
    Hepatitis-B and adopted other preventive measures, such as using
    disposable syringes, needles, gloves, aprons, etc. There may be
    a lapse in the availability of these above mentioned preventive
    measures.”

      

      


RADIOLOGIST

  

  • Venkatesh Iyer v. Bombay Hospital Trust and others

      

    The Bombay High Court in 1998 (the case related to alleged
    negligence in 1985) decided a suit filed by one Venkatesh Iyer
    against Bombay Hospital Trust and Others. The suit in this case
    was filed five years after accrual of injury and the inquiry was
    within the plaintiff’s knowledge. Though the suit was barred by
    limitation the High Court went into details of alleged
    negligence. The amount claimed by the plaintiff was Rs.
    47,00,000.00 (Rupees forty-seven lakhs). The break up of the
    claim was — Rs. 2 lakhs for medical expenses, Rs. 10 lakhs for
    future surgery, Rs. 15 lakhs for loss of future earnings and Rs.
    20 lakhs for loss of amenities, mental and physical shock and
    torture. Interest at the rate of 18 per cent was claimed from
    the date of filing of the suit till payment or realization.

      

    The case involved treatment of a young patient suffering from
    Hodgkins disease by chemoradiation. Following initial remission
    the disease allegedly recurred and further radiation was given
    which allegedly caused complications. Negligence was alleged
    against the radiologist since a second biopsy and other tests
    were not done prior to initiating a second course of radiation
    (the initial dose of radiation was 4000 rads and a further dose
    of 4000 rads were given about seven months later).

      

    It was the plaintiffs’ case that the second dose of radiation
    was responsible for the multiple illnesses suffered by him. That
    the second dose of radiation was wholly unnecessary (two doctors
    had allegedly intimated to the plaintiff that the second dose of
    radiation was not necessary) and multiple illnesses which the
    plaintiff had suffered could have been avoided if due care and
    caution had been taken by the defendants.

     

    Expert testimony was taken and the case heard at length since
    the plaintiff who was an educated person had even obtained
    opinions from other parts of India and abroad to buttress his
    case. The suit was dismissed since the doctor’s treatment
    saved the patient’s life and who was well thirteen years after
    the initial diagnosis and there was no nexus between the
    treatment and the alleged complications, which occurred. The
    Court came to the conclusion that “The plaintiffs ailment
    can be attributed only to providence and not to negligence of
    any of the defendants. It was his destiny to suffer.”

      

    The Court also denied the plaintiff any relief due to his
    conduct. The plaintiff had suppressed material evidence from the
    Court while making an application to file plaint under Forma
    Pauperis to the Prothonotary and Senior Master. The plaintiff
    had also written threatening letters to the radiologist and
    tried to extract money from him, gave interviews to the press
    when the matter was sub-judice with intent to blackmail and
    defame the doctor and also filed a complaint with the
    Maharashtra Medical Council which came to be dismissed.

      

      


PHYSICIAN / CARDIOLOGIST

  

  • Amar Singh v.Frances Newton Hospital and Others



    2001 (1) CPR 379

        

    Consumer Protection Act. 1986-
    Section 15 – Medical negligence – Father of complainant admitted
    in hospital of opposite party – Death alleged to have been
    caused due to carelessness of opposite party – FIR registered -
    Investigating officer approached Civil surgeon for obtaining
    report of Board of Doctors – Death of father of complainant as
    per report was due to Cardio Respiratory arrest which caused to
    coronary Artery disease and cerbrovarcular accident – Drugs
    given for treatment justified – death of complainant’s father
    natural death being old man of eighty years – District Forum
    held there was not any negligence or recklessnessor departure
    from treatment – Dismissed complaint – Appeal  – No legal
    infirmity in detailed and well reason order passed by District
    Forum.

      


    IMPORTANT POINT :-


    The doctor when consulted by patient owes him certain
    duties 

    (a) a duty of care in deciding whether to undertake the
    case 

    (b) a duty of care in deciding what treatment to give 

    (c) a duty of care in administration of that treatment .

      


    ORDER :-


    Davinder Kaur Bhamrah, Member – This is an appeal under Section
    15 of the Consumer Protection Act, 1986, against the order dated
    20-11-1998 passed by the District Consumer Disputes Redressal
    Forum , Ferozepur, for damages was dismissed. Aggrieved by
    allowing the calim of the appellant to the extent of full amount
    as mentioned in the complaint with costs throughout.

      

    Brief facts of cases are :-

    Shanker Singh aged 80 years, father of the complainant Amar
    Singh , was admitted in the Frances Newton Hospital on
    19-7-1996. As per allegations of the complainant , the death
    ofhis father carelessness of the Opposite Party No. w, against
    the O.P. No. 2 with the ordes of the Hon’ble Punjab and Haryana
    High court. It is stated that the investigation officer of
    police approached the Civil Surgeon , Ferozepur Ex. R-3 for
    obtaining the opinion of the Board of Doctors . The Civil
    Surgeon , Ferozepur vide Ex. r-2, the death of the father of the
    complainant was due to “Cardio-respiratory arrest”
    which caused to the “Coronary Artery disease and
    cerebrovarcular accident” and the drugs which were given
    for treatment were justified. After obtaining the said report of
    the Board of Doctors. The investigating Officer of police sought
    opinion of the D.A (Legal) Ferozepur vide Ex R-4. The Deputy
    D.A. (Legal) Ferozepur made his report Ex. R-5 dated 27-11-1997
    vide which he opined that the treatment and medicines given to
    Shanker Singh, father of complainant were justified and death of
    Shanker Singh was natural death being an old man of 80 years and
    he recommended the case for cancellation.

      

    After perusing the record, the District Forum reached the
    conclusion recklessness or departure from accepted and
    establlished rules of treatment, on the complainant has badly
    failed to prove his case by leading any cogent and convincing
    evidence and dismissed the complaint .

     

    In the appeal before us , it has been stated that the death of
    the father of the complainant after two days of admission in the
    hospital with no serious allment itself goes to show that the
    patient died due to the utter rashness and negligence on the
    part of O.P. No. 2 and hence it is deficiency in rendering
    service and the prayer is to compensate the appelant for the
    amount claimed by him.

      

    The question which arises for consideration in this appeal is
    whether O.P. No. 2 can be held liable for any negligence in
    discharge of his duty as  a physician ?

      

    The patient Shanker Singh was brought to the hospital on
    19-7-1996 at 5:00 p.m. with complaint of weakness of left side
    of body two hours prior to admission . On admission his pulse
    was 80/min. regular, B.P. 160./86 mm. Hg. Respiration rate
    20/min. A diagnosis of cerebrovascular accident with left-side
    hemiparesis was made. The appropriate treatment was given and
    investigation were carried out. Chest X-rayshowed the consistent
    with age. arctic calcification was seen. ECG old anterior wall
    myocardial infarction with the lateral wall and apicil Ischemic
    changes were seen. On follow up on 20th July, 1996 , his
    condition was stable, he had slight fever. On 21st morning
    rounds general condition was stable ,he had slight fever. On
    21st morning rounds genreal condition was better but there were
    ‘ronchi’ in chest. So injection Lasic and injection Derephyllin
    were ordered and given at 10:20 a.m. , the patient suffered
    respiratory arrest followed bu cardiac arrest. Resuscitation
    methods were tried but proved unsuccessful and the patient was
    declared dead at 10:40 a.m. The cause of death being Cardio
    Respiratory Arrest’ and precipitating causes mentioned as ‘
    Ischaemic Heart Disease’ Cerebrovascular.

      

    The diagnosis and treatment given by the O.P. No. 2 has been
    challenged buy the complainant levelling allegations against him
    but at the same time he has not produced any evidence to prove
    these allegations levelled in the complainant against the O.P.
    No.2. No expert opinion has been produced by the complainant to
    contradict the report of the Board of Doctors . All medical
    negligence cases concern various questions of fact , when we say
    burden of proving negligence lies on the complainant, it means
    he has the task of convincing the Court that his version of

      

    The Supreme Court of India , in Dr. Laxman Bala Krishna Joshi v.
    Dr. Trimbak Bapu Godbole & another , has laid down that
    doctor when consulted by a patient owes him certain duties,
    namely, 

    (a) a duty of care in deciding whether to undertake the case

    (b) a duty of care in deciding what  treatment to
    give 

    (c) a duty of care in administration of that treatment. 

    A breach of any of these duties gives a cause of  action
    for negligence to the patient. It is in the light of the above
    principles that it is to be seen now whether there was a breach
    of duty of care on the part of O.P. 2 in the process of
    treatment of Shri Shanker Singh. the facts is the correct one.

      

    In the case in hand, there is nothing on record to prove the
    negligence doctor gets more strengthened by the report of the
    Board of the doctors and cancellation of the F.I.R lodged by the
    complainant.

      

    For the reasons recorded above, we do not find any legal
    infirmity in the detailed and well reasoned order passed by the
    District Forum . We can not be oblivious of the misery and
    mental agony caused by the frivolous and vexatious complaint to
    a doctor. Inexpensive remedy provided under the Consumer
    Protection Act to provide relief to the exploited has been
    exploited and the cheap remedy has been really made
    “cheap” by the complainant . Hence we dismiss the
    appeal with costs of Rs. 5000/- and the opposite parties are
    entitled to recover the same from the complainant in accordance
    with law. 

    Appeal dismissed.

        

  • RADHAKRISHNAN v. MANIKANDANUNNI

    II (2001) CPJ 167

       

    Consumer Protection Act, 1986 – Section 15 – Appeal – Negligence / Deficiency in Service – Inferior Quality of Medicine – Compensation – Opposite party sold the medicine to complainant – Complications developed on consuming the medicine – Complainant got himself admitted in Medical College – Compensation claimed – No expert evidence tendered – Complainant underwent treatment due to consuming of medicine not proved – Negligence / deficiency in service on part of opposite party not proved – Complaint rightly dismissed by Forum.

        

    Held – In the impugned order it is pointed out by the District Forum that there is no material to connect the opposite party that he caused to issue any advertisement. As regards the qualities of medicine in the question, no advertisement was produced. It is also pointed out that the notice Exbt. A13 contains nothing to connect the opposite party with the same. OPW1 denied to his having sold the said medicine. The Commission who filed Exbt. C1 report at his visit did not see the opposite party in the concern, he says two colleagues of his were in the shop. As to how he infered them as the colleagues of the opposite party are not stated. A3, A5 A8, A9 and A10 the prescriptions and bills for purchase of medicine, and Exbt. A1 series the treatment record of the Medical College Hospital though could show that the complainant was an in-patient in the Medical College Hospital and he underwent treatment, there is no acceptable material to show that the ailment of the complainant for which he underwent treatment in the Medical College Hospital was caused due to consuming the aforesaid medicines. In a matter like this expert evidence as to the said aspect was necessary without which it would be hazardous to find that the ailment of the complainant was due to his taking the aforesaid medicines. No expert evidence was tendered. When no expert evidence on this aspect is tendered to connect the ailment of the complainant with the defects or deficiency of the medicine that he consumed, one cannot find that there was deficiency of service on the part of the opposite party, even assuming that he supplied aforesaid medicine. Opposite party is a
    `Kazhakakaran’ attached to the temple, he is not a physician. Having regard to the fact that there is no expert evidence to demonstrate that on analysis of the aforesaid medicine it was found to have defect and the said defect caused ailment to the complainant , even if it is assumed that the opposite party sold or caused to be sold the aforesaid medicine and that the complainant consumed the same as claimed by him, unless the aforesaid expert evidence is forthcoming negligence or deficiency alleged by the complainant cannot be taken to have been established or proved. There is no evidence on that aspect. Having regard to the same the aforesaid finding of the District Forum cannot be successfully assailed. (Para 6)

      

    (ii) Ex-parte Order – Setting Aside – Jurisdiction of Forum – Suppression of opposite party`s description -
    Ex-parte order secured by fraud – Abuse of process of Court – Fora has jurisdiction to recall an order obtained by fraud -
    Ex-parte order set aside.

       

    Held : It will be noted that in para 4 of the said petition the opposite party alleges that by giving wrong description of the opposite party the
    ex-parte order was secured by fraud. Therefore, the petition cannot be treated as one for review though it purportedly is styled as a review petition. The argument of the learned Counsel is, assuming that the District Forum has no jurisdiction to set aside the
    ex-parte order or review its order, since the Forum has the jurisdiction to recall an order obtained by fraud or forgery; or by abuse of process of Court the Forum can recall the order. 

    (Para 8 )

      

    Result : Appeal dismissed.

      

    ORDER

      

    Mr. Justice L. Manoharan, President –
    The complainant in O.P.No.186/96 on the file of the Consumer Disputes Redressal Forum, Malappuram is the hospital.

       

    2. The complainant alleged before the District Forum; he was employed as Tutor in Paramount Academy of Computer Education and since he suffered from dust allergy due in which he developed cough and obstruction in breathing. Then attracted by the notice issued by the opposite party claiming the qualities of a medicine
    “Swasasudarana”, he approached the opposite party who assured him that on taking the aforesaid medicine for one year his ailment would be got redressed upon which he took 20 bottles of the said medicine and on coming to know that the said medicine was banned, he again approached the opposite party who claimed, same medicine is available as
    `Vasakasamrutham’, believing the said representation on consuming two bottles of the said medicine he developed swelling on the tongue and feet, it became difficult for him to talk and walk, growth from the side of the eyes were also noticed. Thereupon he approached
    Dr.P.P. Joy and Dr.Krishnakumar who treated him at Medical College Hospital,
    Calicut. He was hospitalized for 12 days in the Medical College Hospital, Calicut and had to spend an amount of Rs.12000/- for treatment. Apart from financial loss he had to undergo anxiety and agony due to the said conduct and act of the opposite party. He wanted
    redressal.

       

    3. In the version filed by the opposite party he denied to his having supplied such medicine or advised him to take the said medicines. He is not the owner of
    “J.R.Consultants” mentioned in the complaint, the proprietor of which is one
    Rajan. He has not published any notice as is alleged. If at all the complainant sustained any injury, the opposite party is not responsible for the same and the complication for which he allegedly underwent treatment in the Medical College Hospital also was not due to his consuming any medicine supplied by the opposite party. He is not trained for treating patients. He is only a
    “Kazahakakaran” in a temple. He wanted dismissal of the complaint.



    4. The complainant got himself examined as P.W.2 and produced Exbts.A1 to A13, MO1 and M02, Commissioner filed Exbts.C1 and C2 reports. The opposite party was examined as OPW1. On a consideration of the said material the District Forum dismissed the complaint. The said dismissal is under challenge in this appeal.

       

    5. Learned Counsel for the appellant assailed the order of the District Forum maintaining that the District Forum did not correctly appreciate the evidence produced on behalf of the complainant and had it was approached the same in the correct perspective the Forum would have seen that actually the opposite party sold the medicine to the complainant and on consuming the same he developed complications which required him to get himself admitted in the Medical College Hospital, Calicut and undergo treatment. Yet another argument was also advanced by the learned Counsel maintaining that the setting aside of the
    ex-parte order dated 27th September, 1996 by the order dated 21st April, 1997 on I.A.18/96 by the District Forum was erroneous and without jurisdiction and, therefore the order on I.A.18/96 has to be ignored. Consequently the order dated 27th September, 1996 even now govern on that ground also the impugned order by the District Forum cannot be sustained. On the other hand the learned Counsel for the respondent supported the order of the District Forum pointing out that there was no material before the District Forum to show, either, the opposite party sold the medicines in question to the complainant or on consuming the same he sustained injury. In other words, according to him on both aspects, viz., the opposite party sold he medicine, and on consuming the same the complainant developed complications which required him to be hospitalized and undergo treatment there is no acceptable evidence. Apart from the same, here being no expert evidence to show that the aforesaid medicines caused the complication the complainant is not eligible for direction in his
    favour. As regards the order of the District Forum on I.A.18/96 it is maintained by the learned Counsel, since the said order has not been challenged, the complainant cannot questioned the same. Alternatively, it was maintained that the
    ex-parte order since was secured by practising fraud and abuse of process of Court, the District Forum was within its jurisdiction to re-call the said order. It is also contended that since the said order was rendered not by a Court, the infirmity, it at all any, cannot make the same absolutely void so as to be ignored.

        

    6. In the impugned order it is pointed out by the District Forum that there is no material to connect the opposite party that he caused to issue any advertisement. As regards the qualities of medicine in the question, no advertisement was produced. It is also pointed out that the notice Exbt.A13 contains nothing to connect the opposite party with the same. OPWI denied to his having sold the said medicine. The Commission who filed Exbt.C1 reports at his visit did not see the opposite party in the concern, he says two colleagues of his were in the shop. As to how he inferred them as the colleagues of the opposite party are not stated. The District Forum also points out that
    Exbts. A3, A5, A8 A9 and A10 the prescriptions and bills for purchase of medicine, and
    Exbt. A1 series the treatment record of the Medical College Hospital though could show that the complainant was in in-patient in the Medical College Hospital and he underwent treatment, there is no acceptable material to show that the ailment of the complainant for which he underwent treatment in the Medical College Hospital was caused due to consuming the aforesaid medicines. In a matter like this expert evidence as to the said aspect was necessary without which it would be hazardous to find the ailment of the complainant was due to his taking the aforesaid medicines. No expert evidence was tendered. When no expert evidence on this aspect is tendered to connect the ailment of the complainant with the defects or deficiency of the medicine that he consumed, one cannot find that there was deficiency of service on the part of the opposite party, even assuming that he supplied aforesaid medicine. Opposite party is a
    `Kazhakakaran’ attached to the temple, he is not a physician. Having regard to the fact that there is expert evidence to demonstrate that on analysis of the aforesaid medicine it was found to have defect and the said defect caused ailment to the complainant, even if it is assumed that the opposite party sold or caused to be sold the aforesaid medicine and that the complainant consumed the same as claimed by him, unless the aforesaid expert evidence is forthcoming negligence or deficiency alleged by the complainant cannot be taken to have been established or proved. There is no evidence on that aspect. Having regard to the same the aforesaid finding of the District Forum cannot be successfully assailed.

      

    7. Now, as noticed that there is another argument by the Learned Counsel for the appellant that this complaint was once allowed ex-parte by the order dated 27th September, 1996, the same came to be set aside by the order on I.A.18/96. The said order according to the Learned Counsel for the appellant being void as without jurisdiction the ex-parte order which allowed compensation must be deemed to be in force. Therefore, irrespective of the aforesaid finding on the basis of the evidence, on the strength of the said ex-parte order the second order passed by the District Forum cannot have any effect. Reliance was made by the Learned Counsel on the decision of the Supreme Court in Jyotsana Arvind Kumar Shah & Ors. V. Bombay Hospital Trust, 1999 (1) SCC 402=III (1999) CPJ 1 (SC)=VII (1999) SLT 146. In the said decision the Supreme Court holds, “State Commission, however, fell into an error in not bearing in mind that the Act under which it is functioning has not provided with any jurisdiction to set aside the ex-parte reasoned order.” It is urged by the Learned Counsel a reading of the order dated 27th September, 1996 since would show that the same is a reasoned order, the District Forum did not have the jurisdiction to set it aside. It is also urged by the Learned Counsel that I.A.18/96 was a petition seeking review of the order dated 27th September, 1996 since the Forum has no jurisdiction to review its earlier order, on that ground also the order of the District Forum is without jurisdiction. On the other hand Learned Counsel for the respondent maintained since the same is not a reasoned order the decision in Jyotsana`s case (supra) cannot have application. One cannot confuse an order on `merit’ with a ” reasoned order.” Here the reading of the order would show that though the complainant has filed an affidavit to the amount mentioned in the complaint, and directs to pay the said amount. This would show that the Forum applied its mind, appreciated the ex-parte evidence tendered and then passed the order. Therefore, it cannot be said that the same is not a reasoned order though it is an ex-parte order.

       

    8. It is true, though the petition is styled as a review petition, the contents of the petition would show that the same is simply to set aside the order passed on 27.9.1996. The petition was treated as such by the District Forum. It will be noted that in para 4 of the said petition the opposite party alleges that by giving wrong description of the opposite party the ex-parte order was secured by fraud. Therefore, the petition cannot be treated as one for review though it purportedly is styled as a review petition. The argument of the Learned Counsel is, assuming that the District Forum has no jurisdiction to set aside the ex-parte order or review its order, since the Forum has the jurisdiction to recall the order obtained by fraud or forgery; or by abuse of process of Court the Forum can recall the order. Reliance was made by the District Forum on the decision of the Supreme court in Indian Bank v. Satyam Fibers (India) Pvt.Ltd. 1996 (5) SCC 550. The Learned Counsel has another alternate argument that the order since was rendered by a `Forum’ not a effective inter-parties till the same is set aside by higher Forum. Reliance was made by the Learned Counsel on the decision of the Supreme Court in State of Kerala v. M. K. Kunhikannan Naimbiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 Supreme Court 906. Still another argument advance by the Learned Council is, in view of the decision of the Supreme Court in New India Assurance Co.Ltd. v. R. Srinivasan, (2000) 3 SCC 242-1 (2000) CPJ 19 (SC)=II (2000) SLT 520, the order on I.A.18/96 cannot be held to be without jurisdiciton.

        

    9. We may first take up the last point urged by the Learned Counsel for the opposite party as to the applicability of the decision in Sreenivasan`s case (supra). The said decision considers the jurisdiction of the Forum on the matter of restoration of a complaint dismissed for default; what is urged it, since the Supreme Court held that the Consumer Disputes Redressal Forum has inherent power and jurisdiction to restore a complaint dismissed for default provided the complainant shows good reason for non-appearance, the same principle should apply for setting aside ex-parte order also which also is rendered due to the default of the opposite party rendered due to the default of the opposite party to appear on the date to which the matter stood posted. We cannot go into the worthness of this argument, “the reasoning maintained by the Learned Counsel though may seem attractive,, as has already been noted, the Supreme Court since was held in Jyotsana`s case (supra), the Act has not provided jurisdiction to set aside ex-parte reasoned order, the Forum cannot set aside an ex-parte reasoned order. We cannot hold, since the later decision held in a matter for restoration of a complaint dismissed for default the FOR A has inherent jurisdiction to set aside ex-parte order also when there is the specific decision of the Supreme Court in Jyotsana`s case to the contrary.

        

    10. Now as to the question whether the order can be treated to have been recalled as has already been noted, in para 4 of the petition he alleges by giving the wrong description the opposite party the complainant got the ex-parte order by practising fraud. If there is suppression of the description of the opposite party and on account of the same the complainant secured an ex-parte order, having regard to the attending circumstances in a given case, the same could amount to abuse of process of Court which would enable the FORA to recall the ex-parte order. The order on I.A.18/96 is self-explanatory. It states, the notice to the opposite party initially was issued to “Mr. Unni, J.R.Consultants, Fathima Nagar, Mandoor.” The said notice was returned stating that there is no such establishment in Fathima Nagar, Mandoor and the name of the establishment is J.R. & Co. Tax Practitioners and Job Typing. The name of the owner was reported to be Manikandan Unni. Therefore, the name of the opposite party was wrong, and the name and details of the establishment also was wrong. The whole description of the opposite party thus was far from correct. Another notice sent with the particular furnished too was with incorrect description, his name was not shown in full. The service of the same notice was as “unclaimed” and it was on the strength of the said service, the opposite party was set ex-parte and the ex-parte order came to be passed. Now the name of the complainant is stated to be `Manikantanunni’. Even after getting the correct name and address of the opposite party in the complainant did not take steps to amend cause title of the complaint. The District Forum notes all these and says that the order came to-be passed with the wrong description of the opposite party; it finds therefore, the order cannot be said to be against the petitioner / opposite party. The District Forum also stated that it is doubtful whether the said order could be binding on the opposite party, observing so the District Forum sets aside the order. From the materials thus revealed it could be seen that not only the name of the opposite party / respondent was wrongly mentioned; the address of the establishment also was wrong and to crown that the service was as `unclaimed’. When such is the situation pronouncement of the ex-parte order with the wrong person in the party array stating that himself is the opposite party, in the facts and circumstances would amount to abuse of process of Court. Then the order on I.A.18/96 has to be upheld as one which recalled the ex-parte order. Now having regard to the aforesaid view taken by us it will not be necessary to go into the other question whether the said order was liable to be set aside by a higher Forum. When such is the situation the setting aside of the ex-parte.

        


PATHOLOGIST

  

  • Raj Kumar v. Dr. Ajay Gupta

    I (2001) CPJ 495

       

    Consumer Protection Act, 1986 – Sections 2(1) (g), 14 (1) (d) -
    Medical Negligence – Wrong Diagnosis – Compensation -
    Complainant’s wife suffering from cancer not diagnosed – Damages
    claimed – Pathological examination done in the nature of report,
    no treatment advised – No fault/negligence on behalf o opposite
    parties proved – Opposite parties not liable for death of
    complainant’s wife – Complaint dismissed.

      

    Held further : We have perused the record in the present case.
    The only question to be decided is whether the opposite party
    Nos. 1,2 and 3 who have done the diagnosis can be held
    responsible for the death of the claimant’s wife and whether
    there was any negligence on their part which caused the death of
    the complainant’s wife . It is an admitted fact that the
    complainant’s wife was suffering from some disease and she was
    taken for pathological examination and submitted their report.
    They had not done clinical diagnosis of the complainant’s wife
    nor they have given any opinion regarding the disease which
    might have been contacted by the complainant’s wife but later on
    died. The complainant has not been able to prove by cogent
    evidence that there was any negligence on behalf of the opposite
    party Nos. 1 and 3. Similarly the pathological examination which
    was done by opposite party No. 2 was also in the nature of
    report which was based on the examination. He has also not
    advised anything. to the complainant for treatment of his wife .
    It has not been indicated by any one of the opposite party Nos.
    1,2 and 3 that the complainant’s wife is suffering from Cancer
    any other disease. It is suffering from Cancer or any other
    disease. It was for the doctor who had not come to definite
    understanding as to what was the disease present on the wife of
    complainant. They merely submitted their report and it was for
    the surgeon who had performed the operation. It was for them to
    see whether there was any cancer present in the complainant’s
    wife. The opposite party Nos. 1,2, and 3 have nothing to do with
    this part of diagnosis . Even in ultrasound the Cancer if it is
    less than 2 cms. cannot be detected, therefore, in our opinion
    there was no fault on behalf of the opposite party Nos. 1,2 and
    3 in causing the death of the complainant’s wife because they
    have not diagnosed the case. Thus we find that no case is made
    out against the opposite party Nos. 1,2 and 3.

      

    RESULT : Complaint dismissed.

      


    1.
      Mr. Justice K.C. Bhargava, President – By means of this
    complaint , the complainant has prayed for damages of Rs.
    4,00,00/- against the opposite party Nos. 1,2 and 3 along with
    18 % interest.

      


    2.
      The facts of the case stated in brief are that the
    petitioner’s wife Smt. Vimlesh whose age is about 45 years had
    some trouble in her abdomen and was taken to the opposite party
    No. 1 Dr. Ajay Gupta , Radiologist and Ultrasonologist on
    18-9-91 for medical check-up. The opposite party No.1 after
    completing all the formalities and after receiving all fees
    certified as suggestive of “GB Stones with Ascites”.
    The Photostat copy of report is filled as Annexure No. A .
    Thereafter Smt. Vimlesh was taken to opposite party No. 1 for
    further diagnosis and investigation. The cat scanning was done
    on 1-10-1991 after receiving a sum of Rs. 3,600/-   as
    fee. The photocopy of the same is filled as Annexure No.B . The
    patient was then referred by him to Dr. A.M. Nagar, MS of LLR
    Medical College , Meerut . On the report given by opposite party
    No. 2 it also shows ” Ascities, Fluid Cytology” , the
    photo-copy of which is filed as Annexure-C. On the advice of Dr.
    Adip Mitra of Medical College, the petitioner took the patient
    to opposite party No. 3 after clinical examination certified as
    under :

      

    “Acitic Fluid-PAP-Staning of Smt. Vimlesh suggest as
    Negative for Malignant Cells”. The petitioner had paid charges
    of Rs. 180/- vide Receipt No. NIL dated 30/10/1991. The
    photo-copies of the said certificate and the receipt are
    attached herewith respectively as Annexures D & E.”

      

    All of the above reports given by the opposite parties to show
    that the patient was suffering from some other disease than the
    Cancer and that too of a very primary stage and not of an
    advance stage. It was advised that the necessary operations
    should be got done for removing the stone from the gall bladdar
    and for Acites. Thereafter the patient was admitted to the
    Medical College and was operated on 16/10/1991 for carrying on
    Ovarian Cycst. The operation shows that the abdomen was opened
    in layers. The report is as under :

      

    ” A risk is given in pentoneum and fluid is drained out,
    fluid is clear, strained in colour and about 6-8 ltrs. is
    drained out. Pentonium omentum is seen studded, malignany is
    hard cartelagreous consistency, uterus is normal, ovary is nodular,
    normal in size , liver surface is filled with dodule of servne
    consist all intestive are metted together. A piece of Biopsy is
    send for HPE from oreneat case is found inoperable, thus adbomen
    is closed in layers. Skin is stitched with mattress sutune
    abdomeal avessing done. “

      


    3.
    The concerned doctor detected the case of Cancer of IVth
    Stage and suggested that the patient might have been suffering
    from Cancer for last many years. 

      


    4.
      If the petitioner would have been advised properly at
    the earliest then the patient might would not have been operated
    upon and she would not have died so early. She died early on
    account of the operation which was wrong advice of opposite
    party Nos. 1,2 and 3. The examinations carried out by opposite
    party Nos. 1,2,e and the report submitted by them are frivolous
    and mala fide and these three persons are solely responsible for
    the death of patient.

      


    5.
    In the written version the opposite party No. 1 has
    alleged that the answering opposite party is not liable for any
    claim as the operation was done in the Medical College and he
    has nothing to do with the treatment which was done in the
    Medical College. The answering opposite party only did abdomen
    Ultrasonography of the complainant’s wife and gave his report.
    This Commission has nojurisdiction to try this complaint. The
    complaint is bad for non-joinder of parties, namely Dr. M. Nagar
    and Dr. Adip Mitra who have performed the operation. The
    complainant is not a consumer . After the Ultrasonography on
    18/9/1991 the Cat-Scanning ultimately the diseased wife of the
    complainant Government Hospital. She died on 28/11/1991 having a
    natural death. The matter should have been brought before the
    Civil  Court and this Commission has no jurisdiction to try
    this complaint.

      


    6.
      It is further alleged that the professional services
    were rendered by the doctors under the contract of personal
    service depending upon the skill of the doctors.

      


    7.
      On the basis of the Ultrawound X-ray film the report
    was correctly given as stated by the complainant. No finding can
    be given by the answering opposite party. It is wrong to say on
    the basis of the report of answering opposite party that the
    case of Cancer was made out and it was not told to the
    complainant at the time explanatory. The report did not indicate
    any disease like Cancer . The Ascitis was detected which is
    indicative of the following which means fluid in peritoneal
    cavity and it is seen in the following diseases :

       (1)  Cancer any where in the body 

       (2)  Tuberculosis abdomen 

       (3)  Cirrhosis liver

       (4)  Hypo Protenemia

    The complainant has not enclosed the operation slip prepared by
    the doctor which is very much needed for the decision of the
    controversy. The death certificate indicates that the operation
    was not for “Ovarian Cyst” but she was operated for
    Malignant Ovarian Tumour. The ultrasoundhas no role in detection
    of secondary Cancer of liver and Intestine etc. The accuracy of
    secondary Cancer of liver and intestine etc. The accuracy of
    secondary Cancer of liver and intestine etc. The accuracy of
    secondary Cancer of liver is only 50-70 percent and that will
    depend upon the size and density of the Nodule . It is further
    stated that the size of the secondary Cancer is less than 2 cms
    . then it cannot be detected in the ultrasound.

      


    8.
    The opposite party No. 2 in its written version has alleged
    that the complainant is not a consumer and she died of natural
    death. The complainant never wrote any letter or complaint
    authenticity of pathological examination report given by him
    before operation was done. The pathological report submitted by
    the answering opposite party has not been challenged and has not
    also been disproved by any cogent evidence. The matter relates
    to the Civil Court and the State Commission has no jurisdiction
    to decide the same because the complicated question of law and
    facts are involved.

     


    9.
    The complainant has not attached the copy of the
    prescription of the treating doctors, Dr. M. Nagar and Dr. Adip
    Mitra of Medical College. The examination of Ascitic Fluid of
    the complainant’s wife was done by the means of physical,
    biochemical and microscopic examination by the answering
    opposite party. No diagnosis was done by the answering opposite
    party and he is merely submitted his report on the basis of
    examination. No clinical examination was done by the opposite
    party. The opposite party only charged a sum of Rs. 120/- from
    the complainant and not Rs. 160/- as alleged. The answering
    opposite party is not responsible for the death of the
    complainant’s wife. There is no medical report on record to show
    that the patient was suffering from Cancer IVth  Stage from
    a very long time. Parties filed their evidence in support of
    their case. We have heard the learned Counsel for the opposite
    parties 1 and 3 Mr. R. Chadha and Mr. K. C. Goyal on behalf of
    opposite party No. 2. the complainant was absent on the date of
    arguments.

     


    10.
      We have perused the record in the present case. The
    only question to be decided is whether the opposite party Nos.
    1,2 and 3 who have done the diagnosis can be held responsible
    for the death of the claimant’s wife and whether there was any
    negligence on their part which caused the death of complainant’s
    wife . It is an admitted fact that the complainant’s wife was
    suffering from some disease and she was taken for pathological
    examination to opposite party Nos. 1 snd 3 for the first time
    and thereafter opposite party No. 2 did the pathological
    examination and submitted their report. They had not done
    clinical diagnosis of the complainant’s wife nor they have given
    any opinion regarding the disease which might have been
    contacted by the complainant’s wife but later on died. The
    complainant has not been able to prove by cogent evidence that
    there was any negligence on behalf of opposite party Nos. 1 and
    3 . Similarly the pathological examination which was done by
    opposite party No. 2 was also in the nature of report which was
    based on the examination. He has also not advised anything to
    the complainant for treatment of his wife . It has knot been
    indicated by any one of the opposite party Nos 1,2 and 3 that
    the complainant’s wife is suffering from Cancer or any other
    disease. It was for the doctor who had not come to definite
    understanding as to what was the disease present on the wife of
    complainant . They merely submitted their report and it was for
    the Surgeon who had performed the operation. It was for them to
    see whether there was any Cancer present in the body of the
    complainant’s wife. The opposite party Nos. 1,2 and 3 have
    nothing to do with this part of diagnosis. Even in ultrasound
    the Cancer if it is less than 2 cms. cannot be detected ,
    therefore, in our opinion there was no fault on behalf of the
    opposite party Nos. 1,2 and 3 in causing the death of the
    complainant’s wife because they have not diagnosed the case .
    Thus we find that no case is made out against the opposite party
    Nos. 1,2 and 3 . 

      

    It may be said that Cancer is the disease and once the Cancer
    developed the life expediency of a patient cannot be predicted.
    It cannot be said that the life span of the patient will get
    reduced no merit in the case and the complainant liable to be
    dismissed.

      


    ORDER :-


    The complaint is dismissed. Under the circumstances, there will
    be no order as to the costs. Let copy of this order be made
    available to the parties as per rules.

    Complaint dismissed.

      

      

ORTHOPAEDIC SURGEON :

  

  • Ashok Kumar v. Dr. Suresh Sharma

    1 (2001) CPJ 478

      

    Consumer protection Act -, 1986 – Section 14(1)(d) – Medical
    Negligence – Compensation claimed – Fractured pieces repaired -
    Plaster changed twice – Complainant still to go under further
    treatment – No expert evidence produced to prove negligence of
    opposite party – Treatment not against prescribed norms under
    medical jurisprudence – Complainant not entitled to any
    compensation.

      

    Held : Admittedly, no expert has been produced by the
    complainant to prove negligence of the opposite party. After
    removal of the plaster, it was discovered that lower portion of
    patella had not united with the rest of the patella. Plaster was
    changed twice on 18.11.1996 and on 18.12.1996 and the
    complainant had approached the opposite party for follow up
    action on 2.3.1997 and 5.12.1997 respectively. The complainant
    was still to undergo further treatment by the opposite party by
    way of removal of wire and removal of cause pain and problem to
    the complainant, even after removal of the wire. He stopped
    getting further treatment from the opposite party after removal
    of the wire, as advised.

      

    Thus, it cannot be said with exactitude that treatment of the
    complainant by the opposite party was against the norms
    prescribed under the medical jurisprudence or that the opposite party
    in any way was negligent or deficient in performance of his
    duties. We, thus, do not find any infirmity in the order of the
    District Forum.

      

    RESULT : Appeal dismissed.

      


    ORDER :


    Mr. Justice H.S. Brar, president – Brief facts as stated
    in the complainant are that on 9.10.1996 complainant was going
    on his scooter when he met with an accident, as a result of
    which his left knee joint patella got fractured into pieces.
    Complainant had consulted the opposite party (hereinafter called
    O.P.) and hired the services for treatment as opposite party had
    assured cent percent healing of patella and the restoration of
    normal functioning of the leg. During the course of treatment,
    the opposite party operated upon the left knee joint patella
    portion on 9.10.1996. The complainant remained admitted in his
    hospital up to 18.10.1996. The injured leg of the complainant
    was put under plaster. A wire was also inserted to join and
    unite the broken pieces of patella. It is then stated in the
    complaint that after removal of plaster, it was discovered that
    the lower portion of patella had not united with the rest of
    patella and thus it was causing constant pain and movement of
    the complainant was also restricted and painful. It is then
    stated in the complainant that after sometime the complainant
    again contacted opposite party and complained of pain in the
    knee joint. Opposite party advised him to undergo another
    operation. The complainant then consulted another Orthopaedic
    Specialist, Dr. Rajiv Saigal, who told him that during the
    operation conducted by the opposite party the lower portion of
    the patella was not united with rest of the patella and it was
    causing pain and restricted ,movement of the ;eg and that is why
    the normal  functioning of the leg had not been restored.
    The complainant had been consulting the opposite party
    constantly and making complaint of pain and painful movement.
    The opposite part used to prescribe painkillers. It is then
    alleged in the complaint that the opposite party was negligent
    in rendering medical service to the complainant and failed to
    observe the standards of medical proficiency required of him.
    The opposite party had failed to unite the lower part of patella
    with rest of its part . The circumferential wire was not also
    properly inserted . The complainant was not properly medically
    treated by the opposite party. The opposite party was, thus ,
    deficient in providing service to the complainant . Rs. 15,00/-
    was claimed as spent on the treatment. Further compensation of
    Rs. 35,000/- was demanded due to sufferance of business etc.

      


    2.
      In reply filed by opposite party , it is stated that
    the complainant was brought by his family members in his
    hospital on 9.10.1996 for treatment of his injured left knee
    region. 

      


    3.
      Admittedly no expert has been produced by the
    complainant to prove negligence of the opposite party . After
    removal of the plaster, it was discovered that the lower portion
    of patella had not united with the rest of the patella. Plaster
    was changed twice pm 18.11.1996 and on 18.12.1996 and the
    complainant had approached the opposite party for follow up
    action o 2.3.1997 and 5.12.1997 respectively. The complainant
    was still to undergo further treatment by the opposite party by
    way of removal of wire and removal of lower fragment of patella
    in case it continued to cause pain and problem to the
    complainant, even after removal of the wire. He stopped getting
    further treatment from the opposite party after removal of the
    wire, as advised. 

      


    4.
      Thus it cannot be said with exactitude that treatment
    of the complainant by the opposite paarty was against the norms
    prescribed under the medical jurisprudence or that the opposite
    party in any way was negligent or deficient in performance of
    his duties . We, thus , do not find any infirmity in the order
    of the District Forum.

    Consequently, this appeal is dismissed; however without any
    order as to costs.

    It may be mentioned here that the complainant may take recourse
    to any other remedy provided to him under the law, if so
    advised.

      

    Appeal dismissed.

     

     

OPTHALMOLOGIST :

  

  • Nirmalendu Paul v. Dr. P.K. Bakshi

    I (2001) CPJ 466

      

    Consumer Protection Act, 1986 – Section (14) (1) (d) – Medical
    Negligence – Wrong Surgery – Non- removal of Cord After
    Operation – Eye operated – Thread cord not removed, resulted in
    loss of vision – Expert opinion to support the allegation of
    negligence not produced – Loss of vision attributable to wrong
    surgery not observed by any renowned Physicians – Complainant
    failed to prove the allegations – Not entitled to any relief.

      

    Held : The complainant makes opposite party-1 responsible for
    losing the vision of his left eye. He states that one
    thread  cord was not removed after the initial operation.
    But it was removed after a lapse of 2 years when he complained
    of losing regular shape of left eye. According to the
    complainant this non – removal clinical and radiological
    examination, the complainant had been found to have compound
    comminuted fracture patella. The complainant was advised surgery
    and it explained to him that either broken pieces of patella are
    required to be removed or a attempt could be made to repair the
    patella by putting the wire around the same . The patient was
    admitted in the hospital for surgery with his consent and the
    opposite party decided to repair the fractured pieces of patella
    in view of the younger age of the complainant, which was the
    standard treatment . The complainant was give I.V. fluids and
    I.V. antibiotic cover. Under spinal anaesthaesia given by the
    anaesthesist under tourniquet control and under all aseptic
    conditions, fracture was exposed. All the fragments were held
    close to each other by self retaining towel clips. After
    maintaining articular congruency, a circumferential wire was put
    around all the fractured pieces of patella and wire was
    tightened . Quardriceps expansions were repaired and wound was
    closed over a drain and plaster was applied. Thereafter , upto
    18.10.1996 the dressing of the operated wound through window in
    the plaster were regularly changed and when the wound had become
    healthy, the complainant was discharged in satisfactory
    condition from the hospital. The complainant was advised to
    visit the hospital for further check-up from time to time .
    Thereafter, the complainant had come for treatment as OPD
    patient. The OPD record was retained by the patient, as the
    prescription slip was handed over to him. As per the Photostat
    copy of the prescription slips produced by the complainant
    before the District Forum, plasters were changed twice on
    18.11.1996 and 18.12.1996 and thereafter the complainant came up
    for follow up on 2.3.1997 and 5.12.1997 . From the record
    produced on the file, the complainant appeared to have visited
    Dr. Salaria on 6.2.1997 . On 5.12.1997 the complainant was
    advised wire removal, but to the best of knowledge of the
    opposite party , he did not get wire removed , which could be
    the cause of pain complained by the complainant . Complainant
    was given proper, prescribed and accepted treatment as required
    to the particular case in view of the younger age of the
    complainant. The complainant had yet to undergo further
    treatment by way of removal of wire and removal of lower fragment
    of patella, in case , it continued to cause pain and problem to
    the complainant, even after the removal of wire.

      

    Initially the complainant filed a case before the District Forum
    at Chinsurah , Hooghly but subsequently it was withdrawn with
    liberty due to sue fresh. Thereafter , he approached this
    commission claiming compensation of Rs. 50,000/- together with
    refund of all expenses incurred by him towards charges received
    by the opposite parties. He has also claimed damages and
    compensation against the opposite parties.

      

    The opposite parties have filed a written objection denying the
    allegations contained in the complaint petition. It is , however
    admitted that opposite party-1 performed operation on the left
    eye of the complainant on 29.6.1993.  According to the
    opposite parties, opposite party -1 is a doctor by 
    profession since 1969 . It has been claimed that he is attached
    to various medical institutions and hospitals both in and
    outside country . He has specialization in Opthalmology.

     

    According to the opposite parties the complainant was first
    examined by opposite parties -1 on 18.3.1993 when he noticed
    Cataracts in both eyes and suspected Glaucoma changes in both
    eyes. The patient was referred to Dr. Saha made Glaucoma Test,
    i.e. Tonometry , Gonioscopy and Perimetery Test on both the eyes
    with early filed changes in the left eye. Accordingly , the
    doctor advised the complainant for Cataract extraction and trab
    left eye. Accordingly , the doctor advised the complainant for
    Cataract and trab left eye first followed by right eye. Since
    the complainant agreed, tentative date for operation was fixed
    on 29.6/1993 amd tje [atoemt was govem doscjarge certofocate pm
    tjat date. The other allegations contained in the complaint
    petition have been denied and disputed. It has been specifically
    denied that there is negligence on their part in the matter of
    treatment of the patient . Accordingly , the opposite parties
    prayed for dismissal of the complaint petition.

     

    At the time of hearing, the complainant appears in person and
    argues the case. The opposite parties are represented by their
    Counsels . Be that as it may, the undisputed fact is that the
    complainant having trouble in his left eye approached opposite
    party-1 for treatment. Opposite party-1 referred him to Dr. Saha
    for further investigation because he found Cataracts in both
    eyes and suspected Glaucoma changes in both eyes. After the
    report pf Dr. Saha was available the same was produced before
    opposite party -1 who advised the patient for Cataract
    extraction and trab left eye first pre-operative routine
    examinations which were done and the date of operation was fixed
    on and he was discharged on the same date. Thereafter, the
    complainant consulted opposite party of the Cord was an act of
    negligence on the part of opposite party-1 and this resulted in
    the loss of vision was attributable to the wrong surgery done by
    opposite party – 1 . The complainant does not examine any expert
    on the subject to eastablish his allegation of negligence on the
    part of the doctor. to succeed in a case like this . We may
    observe that there is hardly any cogent material to substantiate
    the allegation contained in the petition of complaint. Under the
    circumstances, we cannot but hold that the complainant has
    failed to prove the allegations against the opposite parties. So
    he is not entitled to get any relief in this case .

     

    RESULT : Complaint dismissed.

       


    ORDER :


    Mr. Justice S.C.Dutta , President – The petitioner , Shri
    Nirmalendu Paul, aged 73 years approached the opposite parties
    for the first time on 18.3.1993 for the treatment of his eye.
    Opposite party-1 , is a Surgeon and Specialist in Intraoculur
    Lens implant and Micro-surgery and is attached to opposite
    party-2 , an Eye Foundation Centre. After examination of
    complainant , opposite party-1 observed that the poor vision in
    his advice, the petitioner went through some pre-operative
    tests. He was also examined by one Dr. D.K. Saha an associate of
    opposite party-1 and a specialist in the subject.

      

    On 29.6.1993, the complainant got himself admitted in the Clinic
    of opposite party-2 and Surgery was done in the left eye of the
    complainant. Thereafter, the complainant visited several times
    to the chamber of opposite party -1 for post-operative care and
    treatment. The petitioner claimed that the opposite arty has
    taken a total sum of Rs. 30,000/- on several occasions towards
    operation charges and other fees. It has been alleged that the
    opposite parties did not grant receipt for all the money they
    have received. According to the complainant because of gross
    negligence the vision of his left eye has been impaired.
    Gradually, the condition of his left eye deteriorated . The
    complainant consulted several other renowned Eye surgeons of the
    Town and was under their treatment for some 1.8.1995 , the
    complainant again met opposite party-1 who examined him and
    referred the complainant Dr. Siddhartha Bose . The said doctor
    doctor suggested re-operation of the left-eye . On 8.8.1995 ,
    the complainant attended the Chamber of opposite party-1 when he
    was taken to the Operation Theatre. The petitioner felt that a
    Cord has been removed from his eye. According to the complainant
    the non-removal of the Cord at the time of the first operation
    was an act of gross negligence. His left eye had become smaller
    compared to the right eye . He suffered permanent disability in
    his left eye due to wrong operation. The complainant consulted
    Dr. V. Pahwa on 27.11.1995 and understood that he lost vision of
    the left eye because of wrong operation. The complainant wrote a
    letter to opposite party-1 making allegation about the damage
    done to his left eye by the operation. Subsequently , he served
    Lawyer’s notice upon opposite party-1 claiming
    compensation.party-1 on various occasions and was also under his
    treatment. Being dissatisfied with the result of operation, the
    complainant consulted some renowned Surgeons of the Town for
    regaining vision of his left eye. But there was no improvement,
    and he lost vision of his left eye. The complainant makes
    opposite party-1 responsible for losing the vision of his left
    eye. He stated that one thread Cord was not removed after the
    initial operation . But it was removed after a lapse of 2 years
    when he complained of losing regular shape of left eye.
    According to the complainant this non -removal of the Cord was
    an act of negligence on the part of the opposite party . 1 and
    this resulted in the loss of vision. As noticed , earlier the
    complainant consulted various renowned Physicians of his town
    but none of them has observed that the loss of vision was
    attributable to the wrong surgery done by opposite party-1. The
    complainant does not examine any expert on the subject to
    establish his allegation of negligence on the part of the doctor
    Unfortunate though the incident is , the complainant has failed
    to prove allegations against the opposite parties. So he is not
    entitled to get any relief in this case.

      

    In view of the aforesaid, we think that the case should fail.
    Ordered that the case be and the same is hereby dismissed on the
    contest but without cost.

      

    Complaint dismissed.

       

      

CARDIOLOGIST
/ CARDIOTHORACIC SURGEON :

 

  • V.
    Chandrasekar v. Malar Hospitals Ltd.


    2001 (1) CPR 628

       

    Consumer Protection Act, 1986 – Sections 12 and 17 – Medical
    negligence – Complainant underwent Coronary Angioplastry
    plus Stenting to LAD at opp. Party hospital but was not
    relieved of pain – He underwent then by-pass surgery in
    other hospital – Deficiency in service alleged in diagnosis
    and refusal on part of opp. Party to deliver the cassettes
    and photographs of Angiogram and Angioplastry alongwith
    report despite demand – Diagnosis made at opp. Party
    hospital was that complainant had a “Single Vessel
    Disease” whereas diagnosis made at other hospital was
    “Severe Triple Vessel Coronary Disease” – Wrong
    diagnosis and consequent treatment itself could not amount
    to negligence or deficiency in service – Complainant had
    been provided discharge summary providing all details – Non
    return of cassettes, photographs did not amount to
    deficiency in service.

    (Paras 11 to 14)

      

    Result : Complaint dismissed

      

    Case referred:

    1. Poona Medical Foundation Ruby Hall Clinic v.
    Marutirao L. Tikare and Anr, National Commission and Supreme
    Court on 

        Consumer Cases 1986-96 page 2656 (NS).
    (Para 13)

         

    Counsel for the parties:

    For the Complainant : Mr. C. R.Sathindran, Advocate.

     

    For the Opp. Party : None

     

    IMPORTANT POINT

     

    Wrong diagnosis and consequent treatment given by doctor
    itself cannot amount to negligence or deficiency in service.

      

    ORDER

    M. S. Janarthanam, President – This action has come
    before us for admission today.

        

    2. We heard arguments of learned Counsel Mr.C. R.
    Sathindran.

      

    3. We perused the avernments in the complaint and
    also the documents filed alongwith it.

      

    4. Such perusal reveals the following factors:

      

    The complainant is one V. Chandrasekar. On 2-8-1999 he was
    stated to have developed sever chest pain. He got admitted
    in Malar Hospital Ltd. (opposite party). He was admitted as
    an inpatient in the said hospital for a period of five days.

    As per the diagnosis, he underwent Coronary Angiogram on
    3-8-1999. On 5-8-1999, he underwent Coronary Angioplastry
    plus Stenting to LAD at the opposite party`s hospital. He
    was then discharged on 9-8-1999.

     

    He was not relieved of the pain and suffering even after
    such treatment. Again, he was re-admitted in the opposite
    party`s hospital on 8-9-1999. He was put in the ICU for a
    day and then shifted to the ward. He was stated to have been
    releived of the pain. Later, it was found out that the
    relief was only temporary.

     

    He had paid a sum of Rs.88,250/- for Angiogram and
    Angioplastry at the opposite party`s hospital. This apart,
    he also paid a sum of Rs.41,400/- as hospital charges for
    hospitalisation for a period between 2-8-1999 and 9-8-1999.
    This apart, he had to pay a sum of Rs.4,096/- when he was
    re-admitted in the opposite party`s hospital on 8-9-1999. 

      

    Despite the treatment taken at the opposite party`s hospital
    at exorbitant expenses, he was not relieved of the pain and
    sufferings. Consequently, he was not satisfied with the
    treatment given in the said hospital He got admitted in
    Apollo Hospital on 3-3-2000 as he again had severe chest
    pain. There, he was advised to undergo by-pass surgery. As
    per the advice, he had undergone the by-pass surgery on
    11-3-2000.

       

    5. The opposite party hospital refused to give the
    cassettes and photographs of the Angiogram and Angioplastry
    alongwith the report despite demand emerging therefore from
    him. He would say, a duty is cast upon the opposite party
    hospital to furnish such details. The non-functioning of
    such details, he would say, would tantamount to negligence
    or deficiency in service on their part. 

      

    6. The diagnosis made at the opposite party`s
    hospital, he would say, was wrong. The diagnosis, according
    to them, was that the complainant had a “Single Vessel
    Disease” whereas the diagnosis of the Apollo Hospital
    was the he had “Severe Triple Vessel Coronary
    Disease.” The complainant, therefore, would say that
    the diagnosis and treatment given at the opposite party`s
    hospital were wrong and consequently he had to suffer and
    get treatment again at a different hospital namely, Apollo
    Hospital.

      

    7. Because of the opposite party`s hospital refusal
    to furnish the cassettes, photographs of Angiogram, he had
    to suffer irreparable injury, mental agony and damages in
    that he had to not only incur expenses for the Angiogram
    again but also because of the wrong treatment / wrong
    diagnosis given by the opposite party he has to suffer
    injury and damages.

     

    8. He would claim the amounts as below from the
    opposite party:

      

    1. To pay the total medical expenses at

    opposite party`s hospital Rs.1,33,746.00

    2. Medical expenses at Apollo Hospital Rs.2,90,061.00

    3. Damage for mental agony and hardship Rs.2,25,000.00

    Total Rs.6,48,807.00 

       

    He would also claim interest @ 25% on the said amount till
    payment.

       

    9. The opposite party hospital, of course, furnished
    a discharge summary containing the details of investigation,
    diagnosis, treatment given besides the advice on discharge.

      

    10. From the perusal of the factors as above, it is
    thus abundantly crystal clear that according to the
    complainant that wrong diagnosis and consequent treatment
    and refusal to give cassettes and photographs of the
    Angiogram and Angioplastry alongwith the report amounts to
    deficiency in service on the part of the opposite party`s
    hospital.

          

    11. No doubt true it is as getting revealed from the
    records filed that the opposite party hospital, on
    diagnosis, found out that the complainant had Single Vessel
    Disease but on the contrary, it was diagnosed by the
    different hospital namely, Apollo Hospital that he had
    severe Triple Vessel Coronary Disease. Diagnosis is nothing
    but forming an opinion on examination of the patients
    suffering from a disease. Diagnosis may consist of physical
    as well as mechanical examination. Only on such examination,
    the opinion is formed as to the disease from which the
    patient is suffering. The opinion formed or diagnosed may
    vary from one medical expert to another medical expert just
    like the difference of opinion as expressed by the Lawyer
    regarding the factual matrix in the light of legal
    provisions. Only on the diagnosis, treatment is given. As
    respects wrong diagnosis and consequent treatment given, on
    occasions more than one, superior Forums had expressed,
    cannot at all amount to negligence or deficiency in service
    on the part of such professional

        

    12. The other negligence or deficiency in service
    attributed on the part of the opposite party hospital is
    relatable to its refusal to hand over the cassettes and
    photos of the Angiogram. Such refusal, we rather feel, would
    not also amount to deficiency in service on their part when
    especially the complainant had been furnished with a
    discharge summary containing the relevant details such as
    investigation, diagnosis, treatment given and advice on
    discharge.

       

    13. In Poona Medical Foundation Ruby Hall Clinic v.
    Marutirao L. Titkare & Anr. It was laid down by the
    National Commission that the non-supply to the complainant
    of the copies of the hospital records relatable to or
    pertaining to the surgical operation, can by no stretch of
    imagination to be construed as negligence unless there was a
    legal duty cast upon the hospital to furnish such documents
    to the complainant, patient. In the instant case, no
    material had been placed on record to point out that the
    complainant was legally entitled to have the copies of the
    document to be furnished to him.

      

    14. For the reasons as above, we are of the view that
    the factors getting revealed by way of averments
    incorporated in the complaint as well as the documents filed
    alongwith it do not at all prima facie point out any
    negligence of deficiency in service on the part of the
    opposite party hospital requiring further enquiry into the
    matter by taking the complaint on file.

        

    The complaint, as such deserves rejected I limine. We
    accordingly do so.

        

    Complaint dismissed.

       

      

OBSTETRICS
& GYNAECOLOGIST

  

  • Revathy & Anr,. v. Dr. Chandra &
    Anr.


    2001 (1) CPR 600

       

    Sections 12 and 17 – Complaint alleging deficiency in service in conducting delivery of child of complainant by doctor – Relief claimed was Rs.2 lakhs spent on the birth of child and Rs.8 lakhs by way of compensation – Use of forceps by doctor during delivery was alleged to have caused internal injury to child and consequently puss developed in joints of child – Material could not be said prima facie pointing out jurisdiction of Commission – No evidence that Rs.2 lakhs was spent on treatment of child – No details pleaded for compensation of Rs.8 lakhs appeared purposely escalated – Total amount spent and quantum of compensation could not go beyond pecuniary jurisdiction of Dist. Forum – Complaint was liable to be returned to be presented before
    Dist.Forum.

    (Para 6)

    Result : Order accordingly.

      

    Counsel for the parties:

       

    For the Complainants: Mr. T. Mathi, Advocate

      

    For the Opposite Parties : None.

       

    ORDER

        

    M. S. Janarathanam, President –

    This action has come up for admisision before us today. We have perused the averments in the complaint and also the documents filed alongwith it. Such documents filed alongwith it. Such perusal reveals the following factors:

        

    (1) The 1st complainant Revathy is the mother of the 2nd complainant
    M.Indu, minor. During her pregnancy, it appears, she took treatment with the 1st opposite party – Doctor Chandra who is the proprietor of the 2nd opposite party – Chandra Hospital. The 2nd complainant was born in the 2nd opposite party-hospital and the doctor in charge of the delivery was the 1st opposite
    party-Dr.Chandra.

       

    (2) It appears it is a case of breach.

       

    (3) The child, it appears, was forcibly taken with the uses of forceps without resorting to ceaserian operation.

      

    (4) Because of the baby have been forcibly taken out by means of forceps, it appears, due to inertnal injury caused in such process, puss had been developed in joints and various portions of the body of the baby.

       

    (5) The baby was operated on various parts of the body for the removal of the puss.

       

    (6) Because of the alleged callous negligence on the part of the 1st opposite party, the 2nd complainant baby was put to face the agonising situation of operation for the removal of the puss formed on the joints and other portions of the body and the act of the 1st opposite party in such circumstances would prima facie tantamount to deficiency in service on her part.

       

    2. Alleging the factors as above, the complainant resorted to the institution of proceedings before this Commission for certain beliefs as prayed for in this complaint.

       

    3. The reliefs claimed in the complaint is for a direction to the opposite parties to pay a sum of Rs.2,00,000/- towards the amount stated to have been spent on the birth of the 2nd complainant, due to the callous, negligence and deficient services rendered by the opposite parties in extracting the 2nd complaint without any experience and by not giving proper aftercare and also for a direction to them to pay a sum of Rs.8,00,000/- by way of compensation for hardship and tension undergone by the 1st complainant during the course of delivery and also for mental agony, suffering, pain, tension, etc.

      

    4. We heard the arguments of learned Counsel Hspsiba representing learned Counsel
    Mr.T.Mathi, appearing for the complaint.

      

    5. The factors mentioned above as being culled out from the averments made in the complaint and other connected documents filed alongwith it prima facie point out deficiency in service on the part of the opposite parties for making a further enquiry into the matter.

       

    6. However, a question crops up for consideration as to whether the further enquiry is required to be made by this Commission or by the competent District Fora on the facts and in the circumstances of the case. We rather feel that the materials placed on record do not at all prima facie point out that the jurisdiction of this Commission would get attracted and if at all the jurisdiction of the competent District Fora would get attracted for the entertainment of this complaint. This complainant would claim that she had spent about Rs.2,00,000/- for the birth of the 2nd complainant and the subsequent operations the 2nd complainant minor underwent. No scrap of paper worth the name had been placed on record pointing out that she in fact spent a sum of Rs.2,00,000/-. This apart, she would also claim compensation quantified in a sum of Rs.8,00,000/- for the mental agony, hardship, tension, etc., she has undergone in the process of delivery. No details had been given for the computation of the said amount of compensation. We rather feel that the amount of compensation had been purposely escalated so as to attract the jurisdiction of this Commission added by the fact that no Court-fee need be paid for any amount of compensation claimed before the Commission or the Fora constituted under the provisions of the Act. On the facts and in the circumstances of the case, we are of the view that the total amounts spent by the complainant and the quantum of compensation she will be entitled to even the extreme case of there being any deficiency in service on the part of the opposite parties, cannot be beyond the pecuniary jurisdiction of the District Forum.

       

    7. In this view of the matter, the complaint is returned to be presented before the competent District Fora of course after amending the necessary paragraphs in the complaint. Time given for such presentation is one month from today. The Registry is directed to return this copy of the complaint and other documents filed alongwith it forthwith after obtaining the necessary and requisite endorsement for the same.

       

       

OPHTHALMOLOGIST
/ EYE SURGEON

  

  • Dr. K. Krishnankutty, Vijayasree Eye Hospital v. V.M. Vasu

    2001 (1) CPR 603

      

    (i) Consumer Protection Act, 1986 – Section 12 and 17 – Medical negligence – Courts would indeed be slow in attributing negligence
    – Courts would indeed be slow in attributing negligence on part of doctor if he has performed his duties to best of his ability with due care.

       

    Held: In 1996 (2) S.C.C. 634 – Achut Rao Hari Bhau Khoduva and others v. State of
    Maharashtra, the Supreme Court held “the skill of medical practitioners differ from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient. But as long as the doctor acts in a manner which is acceptable to the Medical profession and the Courts finds that he has attended on the patient with due care, skill and diligence and if the patient does not still survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. We had adopted this principle in deciding the case reported in 1999 (3) CPR 442.

    (Para 16)

         

    (ii) Consumer Protection Act, 1986 – Sections 12 and 17 – Medical negligence – Complainant was operated of his left eye and he lost eye sight – Claim for compensation – Defence plea that eyesight loss was due to presence of organised and present vitreous haemorrhage with tractional retina detachment due to diabetics – Expert evidence that retinal detachment could not be found out by ophthalmoscopy as media of left eye of complainant was not clear. – No negligence or deficiency could be attributed on opposite party – Order of District Forum awarding compensation was liable to be set aside.

    (Paras 15, 19 & 20)

          

    Result: Appeal allowed.

    Cases referred:

      

    1. Achut Rao Hart Bhau Khoduva and others v. State of
    Maharashtra, 1996 (2) SCC 634. (Para 16) 

    2. 1996(3) CPR 442. (Para 16)

    3. Roe v. Minister of Health, 1954(2) Q.B. 66 (Para 17) 

    4. Kailash Kumar Sharma v. Dr. Haricharan Madhu,
    1997 (2) CPR 126..

     

    Counsel for the parties:

      

    For the Appellant : Shri S. Reghukumar, Advocate.

      

    For the Respondent : Shri M. Premchand, Advocate.

       

    IMPORTANT POINT

      

    Courts would be slow in attributing negligence on part of doctor if he has performed his duties to best of ability with due care and caution.

      

    ORDER

      

    K. Madhuri Latha, Member –

    The opposite in O.P. No. 784/96 of the Thrissur District Forum has filed this appeal against the order of the Forum dated 31/12/1998.

         

    2. The complainant’s case is that he went to the opposite party’s hospital on 28.9.1995 for the treatment of his eye. He was treated as an outpatient and medicines prescribed were regularly taken. The disease did not subside and he again approached the opposite party on 28/3/1996. The opposite party after assuring that the ailment will be cured, operated his left eye, 29/3/1996. After operation he completely lost eyesight of the left eye. He was advised by the opposite party to go to Aravind Eye Hospital, Madurai for further treatment. Even the expert and costly treatment there, could not cure the damage caused by the earlier operation. Hence he filed this complaint alleging negligence on the part of the opposite party claiming Rs.1,95,500/- as compensation for loss and injury.

      

    3. The opposite party appeared and filed version denying deficiency of service and negligence on his part.
    Opposite Party submitted that the operation was conducted after all necessary tests and after detailed examination and the eye sight was lost not as a result of the surgery but due to presence of organised and present vitreous haemorrhage with tractional retina detachment due to diabetics. There was no proximate connection between cataract operation and diabetic retinopathy. Opposite party also contended that the treatment to the complainant was free of cost and prayed for dismissal of the complaint. But the District Forum
    directed the opposite party to pay Rs. 25000 as compenstion for mental harassment, physical suffering and inconvenience caused to the complainant and also Rs.20000/- for medical expenses and Rs.1000/- towards costs of the proceedings.

       

    4. Aggrieved by the above order, the opposite party has come in appeal.

       

    5. The main points highlighted in the appeal memorandum are that the reasoning of the Forum is erroneous resulting from non-consideration and misappreciation of material documents. The oral evidence has also not been properly considered.

       

    6. We called for the records from the District Forum. The complainant’s evidence consists of the oral evidence of PWs 1 and 2 and Exhibits A1 to A20. The opposite party was examined as RW1 and Exhibits B1 to B14 marked on his side. 

      

    7. PW1 is the complainant. He states that his left eye was operated by the opposite party. For about 2 years, his eyesight was bad. He understood that he was suffering from diabetics when the opposite party examined him six months earlier than the operation. In the evening of the date of operation the bandage was removed and medicine was applied by the nurse. He could not see anything then. After two days the opposite party examined him.

        

    8. Opposite party gave an injection as according to him the loss of eyesight was due to want of sufficient blood pressure. After six days he was discharged from the hospital. There was no eyesight for the operated eye. The opposite party informed that it may be due to excessive smoking and nothing could be done by him to give him relief. Complainant wanted to go to the eye hospital at Madurai and the opposite party gave him a reference letter. The letter and prescription given by the opposite party hospital are marked as
    Exts. A1 to A7 and those from the Madurai hospital are marked as Exts.A8 to A12. The bills for purchase of medicine from outside are marked as A13 to A20. The complainant deposes that he was employed in a Snack Bar at Madras and was getting a salary of Rs.3500/- per
    month. He further says that his eyesight was lost due to operation and and he had spent Rs.20000/- for the operation. In cross examination he admits that the sight of the left eye was worse than that of the right eye. When he met the opposite party on or about 28th of February, the opposite party had opined that the complainant was suffering from cataract and it should be operated. When he met the opposite party for the second time his blood and urine were tested and
    E.C.G. taken. The complainant admits that all the tests prescribed by the doctor including scaning were done. He was wearing spectacles for twenty years and he was a smoker for about fifteen years. His eyesight was diminishing slowly. For a direct question” (Sic Matter in other language).

       

    9. PW 2 is Dr. Mary Kurtan, Professor of Ophthalmology of the Trichur Med ical College Hospital. She deposes that Vitreous haemorrhage can be caused due to many reasons. Retinal detachment can also be caused by many reasons including Vitreous
    haemorrhage. Retinal detachment can be found out by oph thalmoscopy examination if the media is clear. Lens implantation can be done even in a diabetic patient. In cases where retinal detachment is found out earlier, lens implantation is not done. According to PW2 even without slit lamp microscopy test cataract operation is done. Lens can be tested with even miscroscope of ophthalmoscope. She was confronted with a statement in the text book “Parson’s diseases of the eye” that lens cannot be thoroughly examined without the assistance of the slit lamp or ophthalmoscope. Her answer is that the said statement is not wrong. The tests to be conducted before a patient is operated for cataract is also stated by her in detail. She admits that in cases of retinal function disorders cataract operation need not be useful. The witness also says that 100% success could not be achieved even if all the tests are conducted. She does not rule out the possibility of vitreous haemorrhage due to retinal detachment. According to her it is not necessary to cause vitreous haemorrhage in all cases of antiglaucoma surgery. In cross examination she was asked whether diabetic retinopathy can be detected if the lens is opaque. She answers only if the media is clear this could be found
    out. If haemorrhage is present media will not be clear. To avoid complictions like hyper mature cataract, cataract extraction may become necessary even in cases of patients suffering from diabetic retinopathy. If diabetic retinopathy is present further treatment will become necessary. Organised and fresh vitreous haemorrhage can be caused due to diabetic retinopathy which may result in loss of vision.

         

    10. RW1 is the opposite party Dr.K. Krishnankutty. He admits having treated the complainant. He proves
    Exts. B1 to B14. Ext.B1 is the outpatient record and Ext.B2 is the inpatient record relating to the complainant. The complainant came to him on 28.8.1995 initially. His eyesight was tested. The right eye had 6/12 vision. The left eye could make out the fingers held only a distance oftwo meters. He could not read. His blood sugar was tested. He was a smoker and he was warned that diabetics and smoking will impair his eye sight. Test was conducted to find out the presence of sinusitis and gums were checked up. The eye pressure was also examined. Again tests were conducted a day before the
    opeation. Then the left eye sight was very meagre. He could identify only the red light. Cataract operation had to be urgently conducted to avoid bursting and unbearable pain. The patient was told about all this and he was informed that the operation is complicated. The patient was told about all this and he was informed that the operation is complicated. The patient expressed his willingness for operation in writing. He was admitted in the hospital on the 28th and operated on the 29th. Next day when the bandage was removed there was only slight bulging of the eye which was usual. Again bangage was applied and on the third day eyesight was examined. He could not see any light. Direct and indirect, opthalmoscopic tests were conducted. It was directed that he was having both new and old vitreous
    haemorrhage. For confirmation slight lamp microscope examination was done. It was confirmed that he was having organised and fresh heamorrhage and the patient was advised to take a second expert opinion and referred him to the Madurai Hospital. The report from the said hospital was brought by the patient and shown to the opposite party. The loss of vision is due to diabetic retinopathy and smoking. RW1 says that he had conducted all the tests, there was no negligence or want of deligence on his part in treating the patient and there was no nexus between the operation and the loss of eye sight.

       

    11. Ext. B3 is the record to show that sonography test conducted before the operation. Only if the heamorrhage is very heavy, it could be find out by this method. RW1 says that he did not find any presence of vitreous heamorrhage before the operation.The patient was referred to Aravind Eye Hospital, Madurai for specialised surgery. The witness denied negligence and want of care on his part.

      

    12. Exts. A1 to A20 proved by the complainant as PW1. It is evident that the surgery was conducted by the opposite party in the left eye of the complainant, had to pay for the same both in the hospital run by the opposite party and also in the Aravind Eye Hospital,
    Madurai. The complainant was referred by the opposite party for expert opinion and treatment to Dr. Namperumal Swamy of Aravind Hospital. It is also beyond controversy that the complainant did not get any relief by the surgery or treatment and the condition of his left eye became worse. But the question to be considered is as to whether there was any negligence or deficiency in service on the part of the opposite party in advising the complainant, in prescribing medicines, in conducting the surgery and in the post operational care meted out to the complainant. It is relevant to note that the complainant admists that he was a smoker for more than twenty years and was using spectacles. Even according to him his left eye sight was very poor. When he first came to the opposite party in August, 95, he was examined and on finding that he was a diabetic patient advice was tendered that surgery could be conducted only after controlling diabetics. From Ext. B1 and B2 it is established that initially he was treated as an outpatient and later as an inpatient for operation. Ext. B5 is the blood sugar report dated 27/3/1996. Ext.B3 is the
    ultrasonography, B4 is the blood chemistry report. Ext.B6 is the biochemistry report. Ext. B7 is the dental hygience report, Ext. B8 is again the biochemistry report and B9 the clinical chemistry report. B10 is the urine test report and B11 is the urine C and S report. B13 is the pre-operative instructions and B14 is the
    E.C.G. of the complainant dated 4/3/1996. Complainant frankly admits that all the tests prescribed by the opposite party were taken before the operation.

       

    13. The District Forum went at a tangent and doubted the tests conducted for the following reasons.

       

    (a) Ext. B1 and B2 the inpatient and outpatient cards do no show that tests have been conducted.

    (b) The test reports are of different clinics and hospitals and as the tests were not conducted by the opposite party in his hospital they could not be relied on.

    (c) These tests are done at the instance of the opposite party before PW1 was operated upon and hence not reliable.

       

    Apart from the above, opposite party was not complied with the five preliminary tests which are mandatory before a patient can be operated upon and intraocular lens could be implanted. For these and for not conducting opthalmoscopic test it was held by the District Forum that opposite party has failed to discharge his duty to conduct tests and find out vitreous heamorrhage before the operation.

       

    14. We have to observe that the five tests propounded in the text book namely “Person’s diseases of the Eye” VIIIth Edition by Stephen -
    J.H. Miller, only says that the tests are only valuable. It is nowhere stated that these tests are mandatory.

      

    15. One has to go by the expert evidence available in the case. We have summarised earlier the evidence of PW2. It is an admitted fact that the media of the left eye of the complainant was not clear. His vision was lazy and eyelens was opaque. The retinal detachment could be found out, according to PW2 by Opthalmoscopy examination only if the media is clear. She says that lens implanation can be done even in a diabetic patient. The view expressed in Parson’s Diseases of the Eye” has been erroded by the advancement of medical science. It is true lens implantation is not to be attempted in a patient having retinal detachment. In this case retinal detachment could not be found out because of the condition of the eye of the complainant. We anxiously analysed the evidence of PW2 to assess that the treatment and surgery on the patient evidences any deficiency in service or negligence. We could not find any one of the deficiencies alleged by the complainant is post operative namely that the bandage was removed by the nurse on the same evening and not by the doctor. But the opposite party in his deposition says that the bandage was removed in his presence after three days. It does not stand to conviction that a nurse will remove the bandage on the same evening of the operation. It seems that the complainant is anxious to allege some deficiency on the opposite party. It is alleged in the notice of the complainant dated 3/6/1996 that sufficient precautions were not taken by the opposite party in treating him. In his evidence as PW1 he admits that all the necessary tests as prescribed by the opposite party were taken. There seems to be no consistant case for the complainant that the opposite party assured him complete cure by a minor operation. The fact that the operation was not minor is evident from the letter of consent given by the complainant before operation. In a case of minor surgery no such consent letter is required. On appreciation of the totality of evidence we are of the view that no negligence or deficiency in service can be attributed on the opposite party.

       

    16. In Achut Rao Hari Bhau Khoduva and others v. State of
    Maharashtra, the Supreme Court held the skill of medical Practitioners differ from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient. But as long as the doctor acts in a manner which is acceptable to the Medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient does not still survive or suffers a permanent ailment it would be difficult to hold the doctor to be guilty of negligence. We had adopted this principle in deciding the case reported in 1999 (3) CPR 442. This case was brought to our notice by the learned counsel for the appellant. 

        

    17. Lord Denning said in Roe v. Minister of Health “we would be doing a disservice to the community at large if we were to impose a liability on hospitals and doctors for everything that happens to go wrong. Doctors would be lead to think of their own safety than the good of their patients, initiative would be stiffed and confidence shaken. A proper sense of proportion requires us to have regard to the condition in which hospitals and doctors have to work. We must insist a due care for the patient at every point but we must not condemn as negligence which is only a misadventure”.

      

    18. The same law Lord in Hatcher v. Black (1954) Times 2nd July explained the law on the subject of medical negligence against doctors and hospitals in the following words. “In a hospital when a person who is ill goes for treatment, there is always some risk, no matter what cure is used. Every surgical operation involves risks. It would be wrong and indeed bad law to say that simply because of misadventure mishap occurred, the hospitals and doctors are thereby liable. It would be disastrous for the community if it were so. It would mean that if a doctor examining a patient or a surgeon operating at a table instead of getting on with his consent would be forever looking over shoulder to see if someone was coming up with a dagger. His professional reputation is as dear to him as his body. Perhaps more so and an action for negligence can wound his 

        

    2.      1999 (3) CPR 442

    3.      1954 (2) Q.B. 66

         

    reputation as severally as a dagger can his body. You must not therefore find him negligent simply because something happened to go wrong. If for instance one of the risks inherent in operation actually takes place or some complication ensues which lessens or takes away the benefits that were hoped for or if in a matter of opinion he makes an error in judgement you should only find him guilty of negligence when he falls short of the standards of a skillfull medical man”.

      

    19. The learned counsel for the appellant brought to our notice a decision of the National Commission reported in Kailash Kumar Sharma v. Dr. Haricharan
    Madhu. In the said case the opposite party conducted surgery for cataract on the complainant and Intra Ocular Lens was fitted. The complainant alleged total loss of vision thereafter and claimed compensation for improper implantation. In the said case even though as per the opinion of another doctor loss of vision wasdue to improper implantation, the case was dismissed finding that the complainant had failed to discharge the burden of negligence on the opposite party. In the present case the contention is that there was organised and fresh vitreous haemorrhage and the opposite party failed to detech this and retinal detachment and conducted the lens implantation resulting in complete loss of vision. The independent evidence of PW2 is sufficient to rebut the contention of the complainant. The letter from Dr. Namperumal Swamy does not also give any indication that the opposite party was negligent in any manner either in examining the patient, conducting the surgery or giving post operative care. The District Forum has faulted the opposite party in so far as all the tests were not conducted by him or in his hospital.no one can expect such facilities in an opthalmic hospital. Minimum facilities and experienced doctors relating to opthalmology are available for treatment of the eye and the non-availability of other general infrastructural facilities or want of most modern sophisticated equipments cannot be termed as deficiency in service of the hospital or doctor.

       

    20. The above discussion lead us to the conclusion tat there is no evidence for negligence or deficiency in service against the opposite party/appellant. The order of the District Forum is liable to be set aside. We allow the appeal, set aside. We allow the appeal, set aside the order of the District Forum and dismiss the complaint. The parties are directed to bear their respective costs through out.

       

    Appeal allowed.

       

 



 

     

  
Medicolegal
  

  

Cases in favour of Doctors
  

SUPREME COURT CASES
  
 
RIGHT TO PRACTICE TO TO PRACTICE ALLOPATHY

  • Dr. Mukhtiar Chand & Ors. v. The State of Punjab & Ors.: AIR 1999, SC 468
     
    In 1999 the Supreme Court in Dr. Mukhtiar Chand v. State of Punjab has held that Ayurvedic vaids and Unani hakims cannot practice allopathic medicine unless such right is conferred by State Law. The position with regard to medical practitioners of Indian medicine holding degrees in integrated courses is that:- if any State Act recognises their qualification as sufficient for registration in the State Medical register, the prohibition from them practicing allopathic medicine contained in Section 15 (2) (b) of the Indian Medical Council Act, 1956 will not apply. 
       
    So far there is no provision in the State Acts viz. Bombay Medical Practitioners Act, 1938 or the Maharashtra Medical Practitioners Act under which the right to practice any system of medicine is conferred on practitioners of Indian medicine registered under those Acts. Definition of Indian Medicine under the Indian Medicine Central Council Act, 1970 means system of Indian Medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time.
      
    The definition, however, enables such practitioners of Indian Medicine to make use of modern advances in various sciences such as Radiology, ECG, Blood picture report etc. for the purpose of practicing their own system. The flip side of this judgment is that practitioners of other systems of medicine cannot practice allopathic system of medicine unless a State Law permits it. By analogy, allopathic practitioners also cannot prescribe drugs belonging to another system of medicine unless permitted by a State Law. As abundant precaution allopathic practitioners should only prescribe drugs from their own system of medicine -the judgment of Poonam Verma vs. Dr. Ashwin Patel.
      
      

HOSPITAL
  
RIGHT OF CONFIDANTIALITY
  

  • Mr. X.  v. Hospital Z, A.I.R., S.C. 495 (1999)
       
    Again, this year the Supreme Court in Mr. X versus Hospital Z, A.I.R., S.C. 495 (1999) considered three important questions. The Indian Medical Council Act (102 of 1956) under Section 20-A and Section 33 covers doctor-patient relationship and requires the doctor to maintain secrecy in information obtained from the patient before, during or after initiating the relationship. The information of the patient obtained by the doctor should not be revealed except under certain circumstances.
     
    The law in England allows such disclosure under certain circumstances. Such exceptions permit disclosure with the consent of the patient or in the best interest of the patient. Or in compliance with a Court order or other legally enforceable duty and, in very limited circumstances, where the public interests would override the duty of confidentiality. Such circumstances would be in the investigation and prosecution of serious crime or where there is an immediate or future (but not a past or remote) health risk to others.
     
    In this case, the Supreme Court considered the issue whether disclosure by a doctor of the HIV positive status of a patient violated the duty of secrecy. The Court answered the question in the negative. The patient proposed marriage and the proposal had been accepted. The proposed marriage carried with it the health risk to an identifiable person who had to be protected from being infected. As regards the disclosure by the doctor of the HIV positive status of the patient it could not be said that the doctor was under a duty to maintain confidentiality on account of the Code of Medical Ethics formulated by the Indian Medical Council.
     
    The Court went further to say that right to life under Article 21 of the Constitution of India included the right to privacy. But this right is not absolute and disclosure of the doctor of a patient’s HIV status to a person to whom this person is to get married is not violation to this fundamental right. The right under Article 21 may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. Right of life of the lady with whom the patient was to marry would positively include the right to be told that a person with whom she was proposed to be married was the victim of a deadly disease which was sexually communicable.
     
    Further under Article 21 of the Indian Constitution, though right to marry is included in the right to life, this right is not absolute and has to be treated as a “Suspended Right” till he is cured of the disease. Till such cure, the right to marry cannot be enforced through a Court. In fact the Supreme Court said that a person who knows that he has a communicable disease is under a moral and legal duty to inform the woman with whom marriage is proposed. And that he was not physically healthy and that he was suffering from a disease which was likely to be communicated to her.
     
    In this situation, the right to marry and the duty to inform about his ailment are vested in the same person. Not informing the person, with whom such marriage is proposed, makes the person liable under criminal law — viz. sections 269 and 270 of the Indian Penal Code. These two sections envisage two separate and distinct offenses .By providing that if a person negligently or unlawfully does an act, which he knew, was likely to spread the infection of a disease, dangerous to life, to another person. Then such person would be guilty of an offense, punishable with imprisonment for the term indicated therein.
       
       

HIGH COURT CASES
 
PROFESSIONAL HAZARD RESULTING IN HARM TO DOCTOR
  

  • Suraj Mal Chhajer v. State and others the Rajasthan High Court (AIR 1999 Raj. 82)
       
    In Suraj Mal Chhajer v. State and others the Rajasthan High Court (AIR 1999 Raj. 82) awarded interim compensation to the father of a deceased resident doctor who died due to contracting Hepatitis-B while in service. An Inquiry Committee had given a report in which it had stated that, “She might not have contracted the disease, had she been vaccinated earlier against Hepatitis-B and adopted other preventive measures, such as using disposable syringes, needles, gloves, aprons, etc. There may be a lapse in the availability of these above mentioned preventive measures.”
      
      

RADIOLOGIST
  

  • Venkatesh Iyer v. Bombay Hospital Trust and others
      
    The Bombay High Court in 1998 (the case related to alleged negligence in 1985) decided a suit filed by one Venkatesh Iyer against Bombay Hospital Trust and Others. The suit in this case was filed five years after accrual of injury and the inquiry was within the plaintiff’s knowledge. Though the suit was barred by limitation the High Court went into details of alleged negligence. The amount claimed by the plaintiff was Rs. 47,00,000.00 (Rupees forty-seven lakhs). The break up of the claim was — Rs. 2 lakhs for medical expenses, Rs. 10 lakhs for future surgery, Rs. 15 lakhs for loss of future earnings and Rs. 20 lakhs for loss of amenities, mental and physical shock and torture. Interest at the rate of 18 per cent was claimed from the date of filing of the suit till payment or realization.
      
    The case involved treatment of a young patient suffering from Hodgkins disease by chemoradiation. Following initial remission the disease allegedly recurred and further radiation was given which allegedly caused complications. Negligence was alleged against the radiologist since a second biopsy and other tests were not done prior to initiating a second course of radiation (the initial dose of radiation was 4000 rads and a further dose of 4000 rads were given about seven months later).
      
    It was the plaintiffs’ case that the second dose of radiation was responsible for the multiple illnesses suffered by him. That the second dose of radiation was wholly unnecessary (two doctors had allegedly intimated to the plaintiff that the second dose of radiation was not necessary) and multiple illnesses which the plaintiff had suffered could have been avoided if due care and caution had been taken by the defendants.
     
    Expert testimony was taken and the case heard at length since the plaintiff who was an educated person had even obtained opinions from other parts of India and abroad to buttress his case. The suit was dismissed since the doctor’s treatment saved the patient’s life and who was well thirteen years after the initial diagnosis and there was no nexus between the treatment and the alleged complications, which occurred. The Court came to the conclusion that “The plaintiffs ailment can be attributed only to providence and not to negligence of any of the defendants. It was his destiny to suffer.”
      
    The Court also denied the plaintiff any relief due to his conduct. The plaintiff had suppressed material evidence from the Court while making an application to file plaint under Forma Pauperis to the Prothonotary and Senior Master. The plaintiff had also written threatening letters to the radiologist and tried to extract money from him, gave interviews to the press when the matter was sub-judice with intent to blackmail and defame the doctor and also filed a complaint with the Maharashtra Medical Council which came to be dismissed.
      
      

PHYSICIAN / CARDIOLOGIST
  

  • Amar Singh v.Frances Newton Hospital and Others
    2001 (1) CPR 379
        
    Consumer Protection Act. 1986- Section 15 – Medical negligence – Father of complainant admitted in hospital of opposite party – Death alleged to have been caused due to carelessness of opposite party – FIR registered - Investigating officer approached Civil surgeon for obtaining report of Board of Doctors – Death of father of complainant as per report was due to Cardio Respiratory arrest which caused to coronary Artery disease and cerbrovarcular accident – Drugs given for treatment justified – death of complainant’s father natural death being old man of eighty years – District Forum held there was not any negligence or recklessnessor departure from treatment – Dismissed complaint – Appeal  – No legal infirmity in detailed and well reason order passed by District Forum.
      
    IMPORTANT POINT :-
    The doctor when consulted by patient owes him certain duties 
    (a) a duty of care in deciding whether to undertake the case 
    (b) a duty of care in deciding what treatment to give 
    (c) a duty of care in administration of that treatment .
      
    ORDER :-
    Davinder Kaur Bhamrah, Member – This is an appeal under Section 15 of the Consumer Protection Act, 1986, against the order dated 20-11-1998 passed by the District Consumer Disputes Redressal Forum , Ferozepur, for damages was dismissed. Aggrieved by allowing the calim of the appellant to the extent of full amount as mentioned in the complaint with costs throughout.
      
    Brief facts of cases are :-
    Shanker Singh aged 80 years, father of the complainant Amar Singh , was admitted in the Frances Newton Hospital on 19-7-1996. As per allegations of the complainant , the death ofhis father carelessness of the Opposite Party No. w, against the O.P. No. 2 with the ordes of the Hon’ble Punjab and Haryana High court. It is stated that the investigation officer of police approached the Civil Surgeon , Ferozepur Ex. R-3 for obtaining the opinion of the Board of Doctors . The Civil Surgeon , Ferozepur vide Ex. r-2, the death of the father of the complainant was due to “Cardio-respiratory arrest” which caused to the “Coronary Artery disease and cerebrovarcular accident” and the drugs which were given for treatment were justified. After obtaining the said report of the Board of Doctors. The investigating Officer of police sought opinion of the D.A (Legal) Ferozepur vide Ex R-4. The Deputy D.A. (Legal) Ferozepur made his report Ex. R-5 dated 27-11-1997 vide which he opined that the treatment and medicines given to Shanker Singh, father of complainant were justified and death of Shanker Singh was natural death being an old man of 80 years and he recommended the case for cancellation.
      
    After perusing the record, the District Forum reached the conclusion recklessness or departure from accepted and establlished rules of treatment, on the complainant has badly failed to prove his case by leading any cogent and convincing evidence and dismissed the complaint .
     
    In the appeal before us , it has been stated that the death of the father of the complainant after two days of admission in the hospital with no serious allment itself goes to show that the patient died due to the utter rashness and negligence on the part of O.P. No. 2 and hence it is deficiency in rendering service and the prayer is to compensate the appelant for the amount claimed by him.
      
    The question which arises for consideration in this appeal is whether O.P. No. 2 can be held liable for any negligence in discharge of his duty as  a physician ?
      
    The patient Shanker Singh was brought to the hospital on 19-7-1996 at 5:00 p.m. with complaint of weakness of left side of body two hours prior to admission . On admission his pulse was 80/min. regular, B.P. 160./86 mm. Hg. Respiration rate 20/min. A diagnosis of cerebrovascular accident with left-side hemiparesis was made. The appropriate treatment was given and investigation were carried out. Chest X-rayshowed the consistent with age. arctic calcification was seen. ECG old anterior wall myocardial infarction with the lateral wall and apicil Ischemic changes were seen. On follow up on 20th July, 1996 , his condition was stable, he had slight fever. On 21st morning rounds general condition was stable ,he had slight fever. On 21st morning rounds genreal condition was better but there were ‘ronchi’ in chest. So injection Lasic and injection Derephyllin were ordered and given at 10:20 a.m. , the patient suffered respiratory arrest followed bu cardiac arrest. Resuscitation methods were tried but proved unsuccessful and the patient was declared dead at 10:40 a.m. The cause of death being Cardio Respiratory Arrest’ and precipitating causes mentioned as ‘ Ischaemic Heart Disease’ Cerebrovascular.
      
    The diagnosis and treatment given by the O.P. No. 2 has been challenged buy the complainant levelling allegations against him but at the same time he has not produced any evidence to prove these allegations levelled in the complainant against the O.P. No.2. No expert opinion has been produced by the complainant to contradict the report of the Board of Doctors . All medical negligence cases concern various questions of fact , when we say burden of proving negligence lies on the complainant, it means he has the task of convincing the Court that his version of
      
    The Supreme Court of India , in Dr. Laxman Bala Krishna Joshi v. Dr. Trimbak Bapu Godbole & another , has laid down that doctor when consulted by a patient owes him certain duties, namely, 
    (a) a duty of care in deciding whether to undertake the case
    (b) a duty of care in deciding what  treatment to give 
    (c) a duty of care in administration of that treatment. 
    A breach of any of these duties gives a cause of  action for negligence to the patient. It is in the light of the above principles that it is to be seen now whether there was a breach of duty of care on the part of O.P. 2 in the process of treatment of Shri Shanker Singh. the facts is the correct one.
      
    In the case in hand, there is nothing on record to prove the negligence doctor gets more strengthened by the report of the Board of the doctors and cancellation of the F.I.R lodged by the complainant.
      
    For the reasons recorded above, we do not find any legal infirmity in the detailed and well reasoned order passed by the District Forum . We can not be oblivious of the misery and mental agony caused by the frivolous and vexatious complaint to a doctor. Inexpensive remedy provided under the Consumer Protection Act to provide relief to the exploited has been exploited and the cheap remedy has been really made “cheap” by the complainant . Hence we dismiss the appeal with costs of Rs. 5000/- and the opposite parties are entitled to recover the same from the complainant in accordance with law. 
    Appeal dismissed.
        

  • RADHAKRISHNAN v. MANIKANDANUNNI
    II (2001) CPJ 167
       
    Consumer Protection Act, 1986 – Section 15 – Appeal – Negligence / Deficiency in Service – Inferior Quality of Medicine – Compensation – Opposite party sold the medicine to complainant – Complications developed on consuming the medicine – Complainant got himself admitted in Medical College – Compensation claimed – No expert evidence tendered – Complainant underwent treatment due to consuming of medicine not proved – Negligence / deficiency in service on part of opposite party not proved – Complaint rightly dismissed by Forum.
        
    Held – In the impugned order it is pointed out by the District Forum that there is no material to connect the opposite party that he caused to issue any advertisement. As regards the qualities of medicine in the question, no advertisement was produced. It is also pointed out that the notice Exbt. A13 contains nothing to connect the opposite party with the same. OPW1 denied to his having sold the said medicine. The Commission who filed Exbt. C1 report at his visit did not see the opposite party in the concern, he says two colleagues of his were in the shop. As to how he infered them as the colleagues of the opposite party are not stated. A3, A5 A8, A9 and A10 the prescriptions and bills for purchase of medicine, and Exbt. A1 series the treatment record of the Medical College Hospital though could show that the complainant was an in-patient in the Medical College Hospital and he underwent treatment, there is no acceptable material to show that the ailment of the complainant for which he underwent treatment in the Medical College Hospital was caused due to consuming the aforesaid medicines. In a matter like this expert evidence as to the said aspect was necessary without which it would be hazardous to find that the ailment of the complainant was due to his taking the aforesaid medicines. No expert evidence was tendered. When no expert evidence on this aspect is tendered to connect the ailment of the complainant with the defects or deficiency of the medicine that he consumed, one cannot find that there was deficiency of service on the part of the opposite party, even assuming that he supplied aforesaid medicine. Opposite party is a `Kazhakakaran’ attached to the temple, he is not a physician. Having regard to the fact that there is no expert evidence to demonstrate that on analysis of the aforesaid medicine it was found to have defect and the said defect caused ailment to the complainant , even if it is assumed that the opposite party sold or caused to be sold the aforesaid medicine and that the complainant consumed the same as claimed by him, unless the aforesaid expert evidence is forthcoming negligence or deficiency alleged by the complainant cannot be taken to have been established or proved. There is no evidence on that aspect. Having regard to the same the aforesaid finding of the District Forum cannot be successfully assailed. (Para 6)
      
    (ii) Ex-parte Order – Setting Aside – Jurisdiction of Forum – Suppression of opposite party`s description - Ex-parte order secured by fraud – Abuse of process of Court – Fora has jurisdiction to recall an order obtained by fraud - Ex-parte order set aside.
       
    Held : It will be noted that in para 4 of the said petition the opposite party alleges that by giving wrong description of the opposite party the ex-parte order was secured by fraud. Therefore, the petition cannot be treated as one for review though it purportedly is styled as a review petition. The argument of the learned Counsel is, assuming that the District Forum has no jurisdiction to set aside the ex-parte order or review its order, since the Forum has the jurisdiction to recall an order obtained by fraud or forgery; or by abuse of process of Court the Forum can recall the order. 
    (Para 8 )
      
    Result : Appeal dismissed.
      
    ORDER
      
    Mr. Justice L. Manoharan, President –
    The complainant in O.P.No.186/96 on the file of the Consumer Disputes Redressal Forum, Malappuram is the hospital.
       
    2. The complainant alleged before the District Forum; he was employed as Tutor in Paramount Academy of Computer Education and since he suffered from dust allergy due in which he developed cough and obstruction in breathing. Then attracted by the notice issued by the opposite party claiming the qualities of a medicine “Swasasudarana”, he approached the opposite party who assured him that on taking the aforesaid medicine for one year his ailment would be got redressed upon which he took 20 bottles of the said medicine and on coming to know that the said medicine was banned, he again approached the opposite party who claimed, same medicine is available as `Vasakasamrutham’, believing the said representation on consuming two bottles of the said medicine he developed swelling on the tongue and feet, it became difficult for him to talk and walk, growth from the side of the eyes were also noticed. Thereupon he approached Dr.P.P. Joy and Dr.Krishnakumar who treated him at Medical College Hospital, Calicut. He was hospitalized for 12 days in the Medical College Hospital, Calicut and had to spend an amount of Rs.12000/- for treatment. Apart from financial loss he had to undergo anxiety and agony due to the said conduct and act of the opposite party. He wanted redressal.
       
    3. In the version filed by the opposite party he denied to his having supplied such medicine or advised him to take the said medicines. He is not the owner of “J.R.Consultants” mentioned in the complaint, the proprietor of which is one Rajan. He has not published any notice as is alleged. If at all the complainant sustained any injury, the opposite party is not responsible for the same and the complication for which he allegedly underwent treatment in the Medical College Hospital also was not due to his consuming any medicine supplied by the opposite party. He is not trained for treating patients. He is only a “Kazahakakaran” in a temple. He wanted dismissal of the complaint.

    4. The complainant got himself examined as P.W.2 and produced Exbts.A1 to A13, MO1 and M02, Commissioner filed Exbts.C1 and C2 reports. The opposite party was examined as OPW1. On a consideration of the said material the District Forum dismissed the complaint. The said dismissal is under challenge in this appeal.
       
    5. Learned Counsel for the appellant assailed the order of the District Forum maintaining that the District Forum did not correctly appreciate the evidence produced on behalf of the complainant and had it was approached the same in the correct perspective the Forum would have seen that actually the opposite party sold the medicine to the complainant and on consuming the same he developed complications which required him to get himself admitted in the Medical College Hospital, Calicut and undergo treatment. Yet another argument was also advanced by the learned Counsel maintaining that the setting aside of the ex-parte order dated 27th September, 1996 by the order dated 21st April, 1997 on I.A.18/96 by the District Forum was erroneous and without jurisdiction and, therefore the order on I.A.18/96 has to be ignored. Consequently the order dated 27th September, 1996 even now govern on that ground also the impugned order by the District Forum cannot be sustained. On the other hand the learned Counsel for the respondent supported the order of the District Forum pointing out that there was no material before the District Forum to show, either, the opposite party sold the medicines in question to the complainant or on consuming the same he sustained injury. In other words, according to him on both aspects, viz., the opposite party sold he medicine, and on consuming the same the complainant developed complications which required him to be hospitalized and undergo treatment there is no acceptable evidence. Apart from the same, here being no expert evidence to show that the aforesaid medicines caused the complication the complainant is not eligible for direction in his favour. As regards the order of the District Forum on I.A.18/96 it is maintained by the learned Counsel, since the said order has not been challenged, the complainant cannot questioned the same. Alternatively, it was maintained that the ex-parte order since was secured by practising fraud and abuse of process of Court, the District Forum was within its jurisdiction to re-call the said order. It is also contended that since the said order was rendered not by a Court, the infirmity, it at all any, cannot make the same absolutely void so as to be ignored.
        
    6. In the impugned order it is pointed out by the District Forum that there is no material to connect the opposite party that he caused to issue any advertisement. As regards the qualities of medicine in the question, no advertisement was produced. It is also pointed out that the notice Exbt.A13 contains nothing to connect the opposite party with the same. OPWI denied to his having sold the said medicine. The Commission who filed Exbt.C1 reports at his visit did not see the opposite party in the concern, he says two colleagues of his were in the shop. As to how he inferred them as the colleagues of the opposite party are not stated. The District Forum also points out that Exbts. A3, A5, A8 A9 and A10 the prescriptions and bills for purchase of medicine, and Exbt. A1 series the treatment record of the Medical College Hospital though could show that the complainant was in in-patient in the Medical College Hospital and he underwent treatment, there is no acceptable material to show that the ailment of the complainant for which he underwent treatment in the Medical College Hospital was caused due to consuming the aforesaid medicines. In a matter like this expert evidence as to the said aspect was necessary without which it would be hazardous to find the ailment of the complainant was due to his taking the aforesaid medicines. No expert evidence was tendered. When no expert evidence on this aspect is tendered to connect the ailment of the complainant with the defects or deficiency of the medicine that he consumed, one cannot find that there was deficiency of service on the part of the opposite party, even assuming that he supplied aforesaid medicine. Opposite party is a `Kazhakakaran’ attached to the temple, he is not a physician. Having regard to the fact that there is expert evidence to demonstrate that on analysis of the aforesaid medicine it was found to have defect and the said defect caused ailment to the complainant, even if it is assumed that the opposite party sold or caused to be sold the aforesaid medicine and that the complainant consumed the same as claimed by him, unless the aforesaid expert evidence is forthcoming negligence or deficiency alleged by the complainant cannot be taken to have been established or proved. There is no evidence on that aspect. Having regard to the same the aforesaid finding of the District Forum cannot be successfully assailed.
      
    7. Now, as noticed that there is another argument by the Learned Counsel for the appellant that this complaint was once allowed ex-parte by the order dated 27th September, 1996, the same came to be set aside by the order on I.A.18/96. The said order according to the Learned Counsel for the appellant being void as without jurisdiction the ex-parte order which allowed compensation must be deemed to be in force. Therefore, irrespective of the aforesaid finding on the basis of the evidence, on the strength of the said ex-parte order the second order passed by the District Forum cannot have any effect. Reliance was made by the Learned Counsel on the decision of the Supreme Court in Jyotsana Arvind Kumar Shah & Ors. V. Bombay Hospital Trust, 1999 (1) SCC 402=III (1999) CPJ 1 (SC)=VII (1999) SLT 146. In the said decision the Supreme Court holds, “State Commission, however, fell into an error in not bearing in mind that the Act under which it is functioning has not provided with any jurisdiction to set aside the ex-parte reasoned order.” It is urged by the Learned Counsel a reading of the order dated 27th September, 1996 since would show that the same is a reasoned order, the District Forum did not have the jurisdiction to set it aside. It is also urged by the Learned Counsel that I.A.18/96 was a petition seeking review of the order dated 27th September, 1996 since the Forum has no jurisdiction to review its earlier order, on that ground also the order of the District Forum is without jurisdiction. On the other hand Learned Counsel for the respondent maintained since the same is not a reasoned order the decision in Jyotsana`s case (supra) cannot have application. One cannot confuse an order on `merit’ with a ” reasoned order.” Here the reading of the order would show that though the complainant has filed an affidavit to the amount mentioned in the complaint, and directs to pay the said amount. This would show that the Forum applied its mind, appreciated the ex-parte evidence tendered and then passed the order. Therefore, it cannot be said that the same is not a reasoned order though it is an ex-parte order.
       
    8. It is true, though the petition is styled as a review petition, the contents of the petition would show that the same is simply to set aside the order passed on 27.9.1996. The petition was treated as such by the District Forum. It will be noted that in para 4 of the said petition the opposite party alleges that by giving wrong description of the opposite party the ex-parte order was secured by fraud. Therefore, the petition cannot be treated as one for review though it purportedly is styled as a review petition. The argument of the Learned Counsel is, assuming that the District Forum has no jurisdiction to set aside the ex-parte order or review its order, since the Forum has the jurisdiction to recall the order obtained by fraud or forgery; or by abuse of process of Court the Forum can recall the order. Reliance was made by the District Forum on the decision of the Supreme court in Indian Bank v. Satyam Fibers (India) Pvt.Ltd. 1996 (5) SCC 550. The Learned Counsel has another alternate argument that the order since was rendered by a `Forum’ not a effective inter-parties till the same is set aside by higher Forum. Reliance was made by the Learned Counsel on the decision of the Supreme Court in State of Kerala v. M. K. Kunhikannan Naimbiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 Supreme Court 906. Still another argument advance by the Learned Council is, in view of the decision of the Supreme Court in New India Assurance Co.Ltd. v. R. Srinivasan, (2000) 3 SCC 242-1 (2000) CPJ 19 (SC)=II (2000) SLT 520, the order on I.A.18/96 cannot be held to be without jurisdiciton.
        
    9. We may first take up the last point urged by the Learned Counsel for the opposite party as to the applicability of the decision in Sreenivasan`s case (supra). The said decision considers the jurisdiction of the Forum on the matter of restoration of a complaint dismissed for default; what is urged it, since the Supreme Court held that the Consumer Disputes Redressal Forum has inherent power and jurisdiction to restore a complaint dismissed for default provided the complainant shows good reason for non-appearance, the same principle should apply for setting aside ex-parte order also which also is rendered due to the default of the opposite party rendered due to the default of the opposite party to appear on the date to which the matter stood posted. We cannot go into the worthness of this argument, “the reasoning maintained by the Learned Counsel though may seem attractive,, as has already been noted, the Supreme Court since was held in Jyotsana`s case (supra), the Act has not provided jurisdiction to set aside ex-parte reasoned order, the Forum cannot set aside an ex-parte reasoned order. We cannot hold, since the later decision held in a matter for restoration of a complaint dismissed for default the FOR A has inherent jurisdiction to set aside ex-parte order also when there is the specific decision of the Supreme Court in Jyotsana`s case to the contrary.
        
    10. Now as to the question whether the order can be treated to have been recalled as has already been noted, in para 4 of the petition he alleges by giving the wrong description the opposite party the complainant got the ex-parte order by practising fraud. If there is suppression of the description of the opposite party and on account of the same the complainant secured an ex-parte order, having regard to the attending circumstances in a given case, the same could amount to abuse of process of Court which would enable the FORA to recall the ex-parte order. The order on I.A.18/96 is self-explanatory. It states, the notice to the opposite party initially was issued to “Mr. Unni, J.R.Consultants, Fathima Nagar, Mandoor.” The said notice was returned stating that there is no such establishment in Fathima Nagar, Mandoor and the name of the establishment is J.R. & Co. Tax Practitioners and Job Typing. The name of the owner was reported to be Manikandan Unni. Therefore, the name of the opposite party was wrong, and the name and details of the establishment also was wrong. The whole description of the opposite party thus was far from correct. Another notice sent with the particular furnished too was with incorrect description, his name was not shown in full. The service of the same notice was as “unclaimed” and it was on the strength of the said service, the opposite party was set ex-parte and the ex-parte order came to be passed. Now the name of the complainant is stated to be `Manikantanunni’. Even after getting the correct name and address of the opposite party in the complainant did not take steps to amend cause title of the complaint. The District Forum notes all these and says that the order came to-be passed with the wrong description of the opposite party; it finds therefore, the order cannot be said to be against the petitioner / opposite party. The District Forum also stated that it is doubtful whether the said order could be binding on the opposite party, observing so the District Forum sets aside the order. From the materials thus revealed it could be seen that not only the name of the opposite party / respondent was wrongly mentioned; the address of the establishment also was wrong and to crown that the service was as `unclaimed’. When such is the situation pronouncement of the ex-parte order with the wrong person in the party array stating that himself is the opposite party, in the facts and circumstances would amount to abuse of process of Court. Then the order on I.A.18/96 has to be upheld as one which recalled the ex-parte order. Now having regard to the aforesaid view taken by us it will not be necessary to go into the other question whether the said order was liable to be set aside by a higher Forum. When such is the situation the setting aside of the ex-parte.
        

PATHOLOGIST
  

  • Raj Kumar v. Dr. Ajay Gupta
    I (2001) CPJ 495
       
    Consumer Protection Act, 1986 – Sections 2(1) (g), 14 (1) (d) - Medical Negligence – Wrong Diagnosis – Compensation - Complainant’s wife suffering from cancer not diagnosed – Damages claimed – Pathological examination done in the nature of report, no treatment advised – No fault/negligence on behalf o opposite parties proved – Opposite parties not liable for death of complainant’s wife – Complaint dismissed.
      
    Held further : We have perused the record in the present case. The only question to be decided is whether the opposite party Nos. 1,2 and 3 who have done the diagnosis can be held responsible for the death of the claimant’s wife and whether there was any negligence on their part which caused the death of the complainant’s wife . It is an admitted fact that the complainant’s wife was suffering from some disease and she was taken for pathological examination and submitted their report. They had not done clinical diagnosis of the complainant’s wife nor they have given any opinion regarding the disease which might have been contacted by the complainant’s wife but later on died. The complainant has not been able to prove by cogent evidence that there was any negligence on behalf of the opposite party Nos. 1 and 3. Similarly the pathological examination which was done by opposite party No. 2 was also in the nature of report which was based on the examination. He has also not advised anything. to the complainant for treatment of his wife . It has not been indicated by any one of the opposite party Nos. 1,2 and 3 that the complainant’s wife is suffering from Cancer any other disease. It is suffering from Cancer or any other disease. It was for the doctor who had not come to definite understanding as to what was the disease present on the wife of complainant. They merely submitted their report and it was for the surgeon who had performed the operation. It was for them to see whether there was any cancer present in the complainant’s wife. The opposite party Nos. 1,2, and 3 have nothing to do with this part of diagnosis . Even in ultrasound the Cancer if it is less than 2 cms. cannot be detected, therefore, in our opinion there was no fault on behalf of the opposite party Nos. 1,2 and 3 in causing the death of the complainant’s wife because they have not diagnosed the case. Thus we find that no case is made out against the opposite party Nos. 1,2 and 3.
      
    RESULT : Complaint dismissed.
      
    1.  Mr. Justice K.C. Bhargava, President – By means of this complaint , the complainant has prayed for damages of Rs. 4,00,00/- against the opposite party Nos. 1,2 and 3 along with 18 % interest.
      
    2.  The facts of the case stated in brief are that the petitioner’s wife Smt. Vimlesh whose age is about 45 years had some trouble in her abdomen and was taken to the opposite party No. 1 Dr. Ajay Gupta , Radiologist and Ultrasonologist on 18-9-91 for medical check-up. The opposite party No.1 after completing all the formalities and after receiving all fees certified as suggestive of “GB Stones with Ascites”. The Photostat copy of report is filled as Annexure No. A . Thereafter Smt. Vimlesh was taken to opposite party No. 1 for further diagnosis and investigation. The cat scanning was done on 1-10-1991 after receiving a sum of Rs. 3,600/-   as fee. The photocopy of the same is filled as Annexure No.B . The patient was then referred by him to Dr. A.M. Nagar, MS of LLR Medical College , Meerut . On the report given by opposite party No. 2 it also shows ” Ascities, Fluid Cytology” , the photo-copy of which is filed as Annexure-C. On the advice of Dr. Adip Mitra of Medical College, the petitioner took the patient to opposite party No. 3 after clinical examination certified as under :
      
    “Acitic Fluid-PAP-Staning of Smt. Vimlesh suggest as Negative for Malignant Cells”. The petitioner had paid charges of Rs. 180/- vide Receipt No. NIL dated 30/10/1991. The photo-copies of the said certificate and the receipt are attached herewith respectively as Annexures D & E.”
      
    All of the above reports given by the opposite parties to show that the patient was suffering from some other disease than the Cancer and that too of a very primary stage and not of an advance stage. It was advised that the necessary operations should be got done for removing the stone from the gall bladdar and for Acites. Thereafter the patient was admitted to the Medical College and was operated on 16/10/1991 for carrying on Ovarian Cycst. The operation shows that the abdomen was opened in layers. The report is as under :
      
    ” A risk is given in pentoneum and fluid is drained out, fluid is clear, strained in colour and about 6-8 ltrs. is drained out. Pentonium omentum is seen studded, malignany is hard cartelagreous consistency, uterus is normal, ovary is nodular, normal in size , liver surface is filled with dodule of servne consist all intestive are metted together. A piece of Biopsy is send for HPE from oreneat case is found inoperable, thus adbomen is closed in layers. Skin is stitched with mattress sutune abdomeal avessing done. “
      
    3. The concerned doctor detected the case of Cancer of IVth Stage and suggested that the patient might have been suffering from Cancer for last many years. 
      
    4.  If the petitioner would have been advised properly at the earliest then the patient might would not have been operated upon and she would not have died so early. She died early on account of the operation which was wrong advice of opposite party Nos. 1,2 and 3. The examinations carried out by opposite party Nos. 1,2,e and the report submitted by them are frivolous and mala fide and these three persons are solely responsible for the death of patient.
      
    5. In the written version the opposite party No. 1 has alleged that the answering opposite party is not liable for any claim as the operation was done in the Medical College and he has nothing to do with the treatment which was done in the Medical College. The answering opposite party only did abdomen Ultrasonography of the complainant’s wife and gave his report. This Commission has nojurisdiction to try this complaint. The complaint is bad for non-joinder of parties, namely Dr. M. Nagar and Dr. Adip Mitra who have performed the operation. The complainant is not a consumer . After the Ultrasonography on 18/9/1991 the Cat-Scanning ultimately the diseased wife of the complainant Government Hospital. She died on 28/11/1991 having a natural death. The matter should have been brought before the Civil  Court and this Commission has no jurisdiction to try this complaint.
      
    6.  It is further alleged that the professional services were rendered by the doctors under the contract of personal service depending upon the skill of the doctors.
      
    7.  On the basis of the Ultrawound X-ray film the report was correctly given as stated by the complainant. No finding can be given by the answering opposite party. It is wrong to say on the basis of the report of answering opposite party that the case of Cancer was made out and it was not told to the complainant at the time explanatory. The report did not indicate any disease like Cancer . The Ascitis was detected which is indicative of the following which means fluid in peritoneal cavity and it is seen in the following diseases :
       (1)  Cancer any where in the body 
       (2)  Tuberculosis abdomen 
       (3)  Cirrhosis liver
       (4)  Hypo Protenemia
    The complainant has not enclosed the operation slip prepared by the doctor which is very much needed for the decision of the controversy. The death certificate indicates that the operation was not for “Ovarian Cyst” but she was operated for Malignant Ovarian Tumour. The ultrasoundhas no role in detection of secondary Cancer of liver and Intestine etc. The accuracy of secondary Cancer of liver and intestine etc. The accuracy of secondary Cancer of liver and intestine etc. The accuracy of secondary Cancer of liver is only 50-70 percent and that will depend upon the size and density of the Nodule . It is further stated that the size of the secondary Cancer is less than 2 cms . then it cannot be detected in the ultrasound.
      
    8. The opposite party No. 2 in its written version has alleged that the complainant is not a consumer and she died of natural death. The complainant never wrote any letter or complaint authenticity of pathological examination report given by him before operation was done. The pathological report submitted by the answering opposite party has not been challenged and has not also been disproved by any cogent evidence. The matter relates to the Civil Court and the State Commission has no jurisdiction to decide the same because the complicated question of law and facts are involved.
     
    9. The complainant has not attached the copy of the prescription of the treating doctors, Dr. M. Nagar and Dr. Adip Mitra of Medical College. The examination of Ascitic Fluid of the complainant’s wife was done by the means of physical, biochemical and microscopic examination by the answering opposite party. No diagnosis was done by the answering opposite party and he is merely submitted his report on the basis of examination. No clinical examination was done by the opposite party. The opposite party only charged a sum of Rs. 120/- from the complainant and not Rs. 160/- as alleged. The answering opposite party is not responsible for the death of the complainant’s wife. There is no medical report on record to show that the patient was suffering from Cancer IVth  Stage from a very long time. Parties filed their evidence in support of their case. We have heard the learned Counsel for the opposite parties 1 and 3 Mr. R. Chadha and Mr. K. C. Goyal on behalf of opposite party No. 2. the complainant was absent on the date of arguments.
     
    10.  We have perused the record in the present case. The only question to be decided is whether the opposite party Nos. 1,2 and 3 who have done the diagnosis can be held responsible for the death of the claimant’s wife and whether there was any negligence on their part which caused the death of complainant’s wife . It is an admitted fact that the complainant’s wife was suffering from some disease and she was taken for pathological examination to opposite party Nos. 1 snd 3 for the first time and thereafter opposite party No. 2 did the pathological examination and submitted their report. They had not done clinical diagnosis of the complainant’s wife nor they have given any opinion regarding the disease which might have been contacted by the complainant’s wife but later on died. The complainant has not been able to prove by cogent evidence that there was any negligence on behalf of opposite party Nos. 1 and 3 . Similarly the pathological examination which was done by opposite party No. 2 was also in the nature of report which was based on the examination. He has also not advised anything to the complainant for treatment of his wife . It has knot been indicated by any one of the opposite party Nos 1,2 and 3 that the complainant’s wife is suffering from Cancer or any other disease. It was for the doctor who had not come to definite understanding as to what was the disease present on the wife of complainant . They merely submitted their report and it was for the Surgeon who had performed the operation. It was for them to see whether there was any Cancer present in the body of the complainant’s wife. The opposite party Nos. 1,2 and 3 have nothing to do with this part of diagnosis. Even in ultrasound the Cancer if it is less than 2 cms. cannot be detected , therefore, in our opinion there was no fault on behalf of the opposite party Nos. 1,2 and 3 in causing the death of the complainant’s wife because they have not diagnosed the case . Thus we find that no case is made out against the opposite party Nos. 1,2 and 3 . 
      
    It may be said that Cancer is the disease and once the Cancer developed the life expediency of a patient cannot be predicted. It cannot be said that the life span of the patient will get reduced no merit in the case and the complainant liable to be dismissed.
      
    ORDER :-
    The complaint is dismissed. Under the circumstances, there will be no order as to the costs. Let copy of this order be made available to the parties as per rules.
    Complaint dismissed.
      
      

ORTHOPAEDIC SURGEON :
  

  • Ashok Kumar v. Dr. Suresh Sharma
    1 (2001) CPJ 478
      
    Consumer protection Act -, 1986 – Section 14(1)(d) – Medical Negligence – Compensation claimed – Fractured pieces repaired - Plaster changed twice – Complainant still to go under further treatment – No expert evidence produced to prove negligence of opposite party – Treatment not against prescribed norms under medical jurisprudence – Complainant not entitled to any compensation.
      
    Held : Admittedly, no expert has been produced by the complainant to prove negligence of the opposite party. After removal of the plaster, it was discovered that lower portion of patella had not united with the rest of the patella. Plaster was changed twice on 18.11.1996 and on 18.12.1996 and the complainant had approached the opposite party for follow up action on 2.3.1997 and 5.12.1997 respectively. The complainant was still to undergo further treatment by the opposite party by way of removal of wire and removal of cause pain and problem to the complainant, even after removal of the wire. He stopped getting further treatment from the opposite party after removal of the wire, as advised.
      
    Thus, it cannot be said with exactitude that treatment of the complainant by the opposite party was against the norms prescribed under the medical jurisprudence or that the opposite party in any way was negligent or deficient in performance of his duties. We, thus, do not find any infirmity in the order of the District Forum.
      
    RESULT : Appeal dismissed.
      
    ORDER :
    Mr. Justice H.S. Brar, president – Brief facts as stated in the complainant are that on 9.10.1996 complainant was going on his scooter when he met with an accident, as a result of which his left knee joint patella got fractured into pieces. Complainant had consulted the opposite party (hereinafter called O.P.) and hired the services for treatment as opposite party had assured cent percent healing of patella and the restoration of normal functioning of the leg. During the course of treatment, the opposite party operated upon the left knee joint patella portion on 9.10.1996. The complainant remained admitted in his hospital up to 18.10.1996. The injured leg of the complainant was put under plaster. A wire was also inserted to join and unite the broken pieces of patella. It is then stated in the complaint that after removal of plaster, it was discovered that the lower portion of patella had not united with the rest of patella and thus it was causing constant pain and movement of the complainant was also restricted and painful. It is then stated in the complainant that after sometime the complainant again contacted opposite party and complained of pain in the knee joint. Opposite party advised him to undergo another operation. The complainant then consulted another Orthopaedic Specialist, Dr. Rajiv Saigal, who told him that during the operation conducted by the opposite party the lower portion of the patella was not united with rest of the patella and it was causing pain and restricted ,movement of the ;eg and that is why the normal  functioning of the leg had not been restored. The complainant had been consulting the opposite party constantly and making complaint of pain and painful movement. The opposite part used to prescribe painkillers. It is then alleged in the complaint that the opposite party was negligent in rendering medical service to the complainant and failed to observe the standards of medical proficiency required of him. The opposite party had failed to unite the lower part of patella with rest of its part . The circumferential wire was not also properly inserted . The complainant was not properly medically treated by the opposite party. The opposite party was, thus , deficient in providing service to the complainant . Rs. 15,00/- was claimed as spent on the treatment. Further compensation of Rs. 35,000/- was demanded due to sufferance of business etc.
      
    2.  In reply filed by opposite party , it is stated that the complainant was brought by his family members in his hospital on 9.10.1996 for treatment of his injured left knee region. 
      
    3.  Admittedly no expert has been produced by the complainant to prove negligence of the opposite party . After removal of the plaster, it was discovered that the lower portion of patella had not united with the rest of the patella. Plaster was changed twice pm 18.11.1996 and on 18.12.1996 and the complainant had approached the opposite party for follow up action o 2.3.1997 and 5.12.1997 respectively. The complainant was still to undergo further treatment by the opposite party by way of removal of wire and removal of lower fragment of patella in case it continued to cause pain and problem to the complainant, even after removal of the wire. He stopped getting further treatment from the opposite party after removal of the wire, as advised. 
      
    4.  Thus it cannot be said with exactitude that treatment of the complainant by the opposite paarty was against the norms prescribed under the medical jurisprudence or that the opposite party in any way was negligent or deficient in performance of his duties . We, thus , do not find any infirmity in the order of the District Forum.
    Consequently, this appeal is dismissed; however without any order as to costs.
    It may be mentioned here that the complainant may take recourse to any other remedy provided to him under the law, if so advised.
      
    Appeal dismissed.
     
     

OPTHALMOLOGIST :
  

  • Nirmalendu Paul v. Dr. P.K. Bakshi
    I (2001) CPJ 466
      
    Consumer Protection Act, 1986 – Section (14) (1) (d) – Medical Negligence – Wrong Surgery – Non- removal of Cord After Operation – Eye operated – Thread cord not removed, resulted in loss of vision – Expert opinion to support the allegation of negligence not produced – Loss of vision attributable to wrong surgery not observed by any renowned Physicians – Complainant failed to prove the allegations – Not entitled to any relief.
      
    Held : The complainant makes opposite party-1 responsible for losing the vision of his left eye. He states that one thread  cord was not removed after the initial operation. But it was removed after a lapse of 2 years when he complained of losing regular shape of left eye. According to the complainant this non – removal clinical and radiological examination, the complainant had been found to have compound comminuted fracture patella. The complainant was advised surgery and it explained to him that either broken pieces of patella are required to be removed or a attempt could be made to repair the patella by putting the wire around the same . The patient was admitted in the hospital for surgery with his consent and the opposite party decided to repair the fractured pieces of patella in view of the younger age of the complainant, which was the standard treatment . The complainant was give I.V. fluids and I.V. antibiotic cover. Under spinal anaesthaesia given by the anaesthesist under tourniquet control and under all aseptic conditions, fracture was exposed. All the fragments were held close to each other by self retaining towel clips. After maintaining articular congruency, a circumferential wire was put around all the fractured pieces of patella and wire was tightened . Quardriceps expansions were repaired and wound was closed over a drain and plaster was applied. Thereafter , upto 18.10.1996 the dressing of the operated wound through window in the plaster were regularly changed and when the wound had become healthy, the complainant was discharged in satisfactory condition from the hospital. The complainant was advised to visit the hospital for further check-up from time to time . Thereafter, the complainant had come for treatment as OPD patient. The OPD record was retained by the patient, as the prescription slip was handed over to him. As per the Photostat copy of the prescription slips produced by the complainant before the District Forum, plasters were changed twice on 18.11.1996 and 18.12.1996 and thereafter the complainant came up for follow up on 2.3.1997 and 5.12.1997 . From the record produced on the file, the complainant appeared to have visited Dr. Salaria on 6.2.1997 . On 5.12.1997 the complainant was advised wire removal, but to the best of knowledge of the opposite party , he did not get wire removed , which could be the cause of pain complained by the complainant . Complainant was given proper, prescribed and accepted treatment as required to the particular case in view of the younger age of the complainant. The complainant had yet to undergo further treatment by way of removal of wire and removal of lower fragment of patella, in case , it continued to cause pain and problem to the complainant, even after the removal of wire.
      
    Initially the complainant filed a case before the District Forum at Chinsurah , Hooghly but subsequently it was withdrawn with liberty due to sue fresh. Thereafter , he approached this commission claiming compensation of Rs. 50,000/- together with refund of all expenses incurred by him towards charges received by the opposite parties. He has also claimed damages and compensation against the opposite parties.
      
    The opposite parties have filed a written objection denying the allegations contained in the complaint petition. It is , however admitted that opposite party-1 performed operation on the left eye of the complainant on 29.6.1993.  According to the opposite parties, opposite party -1 is a doctor by  profession since 1969 . It has been claimed that he is attached to various medical institutions and hospitals both in and outside country . He has specialization in Opthalmology.
     
    According to the opposite parties the complainant was first examined by opposite parties -1 on 18.3.1993 when he noticed Cataracts in both eyes and suspected Glaucoma changes in both eyes. The patient was referred to Dr. Saha made Glaucoma Test, i.e. Tonometry , Gonioscopy and Perimetery Test on both the eyes with early filed changes in the left eye. Accordingly , the doctor advised the complainant for Cataract extraction and trab left eye. Accordingly , the doctor advised the complainant for Cataract and trab left eye first followed by right eye. Since the complainant agreed, tentative date for operation was fixed on 29.6/1993 amd tje [atoemt was govem doscjarge certofocate pm tjat date. The other allegations contained in the complaint petition have been denied and disputed. It has been specifically denied that there is negligence on their part in the matter of treatment of the patient . Accordingly , the opposite parties prayed for dismissal of the complaint petition.
     
    At the time of hearing, the complainant appears in person and argues the case. The opposite parties are represented by their Counsels . Be that as it may, the undisputed fact is that the complainant having trouble in his left eye approached opposite party-1 for treatment. Opposite party-1 referred him to Dr. Saha for further investigation because he found Cataracts in both eyes and suspected Glaucoma changes in both eyes. After the report pf Dr. Saha was available the same was produced before opposite party -1 who advised the patient for Cataract extraction and trab left eye first pre-operative routine examinations which were done and the date of operation was fixed on and he was discharged on the same date. Thereafter, the complainant consulted opposite party of the Cord was an act of negligence on the part of opposite party-1 and this resulted in the loss of vision was attributable to the wrong surgery done by opposite party – 1 . The complainant does not examine any expert on the subject to eastablish his allegation of negligence on the part of the doctor. to succeed in a case like this . We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of complaint. Under the circumstances, we cannot but hold that the complainant has failed to prove the allegations against the opposite parties. So he is not entitled to get any relief in this case .
     
    RESULT : Complaint dismissed.
       
    ORDER :
    Mr. Justice S.C.Dutta , President – The petitioner , Shri Nirmalendu Paul, aged 73 years approached the opposite parties for the first time on 18.3.1993 for the treatment of his eye. Opposite party-1 , is a Surgeon and Specialist in Intraoculur Lens implant and Micro-surgery and is attached to opposite party-2 , an Eye Foundation Centre. After examination of complainant , opposite party-1 observed that the poor vision in his advice, the petitioner went through some pre-operative tests. He was also examined by one Dr. D.K. Saha an associate of opposite party-1 and a specialist in the subject.
      
    On 29.6.1993, the complainant got himself admitted in the Clinic of opposite party-2 and Surgery was done in the left eye of the complainant. Thereafter, the complainant visited several times to the chamber of opposite party -1 for post-operative care and treatment. The petitioner claimed that the opposite arty has taken a total sum of Rs. 30,000/- on several occasions towards operation charges and other fees. It has been alleged that the opposite parties did not grant receipt for all the money they have received. According to the complainant because of gross negligence the vision of his left eye has been impaired. Gradually, the condition of his left eye deteriorated . The complainant consulted several other renowned Eye surgeons of the Town and was under their treatment for some 1.8.1995 , the complainant again met opposite party-1 who examined him and referred the complainant Dr. Siddhartha Bose . The said doctor doctor suggested re-operation of the left-eye . On 8.8.1995 , the complainant attended the Chamber of opposite party-1 when he was taken to the Operation Theatre. The petitioner felt that a Cord has been removed from his eye. According to the complainant the non-removal of the Cord at the time of the first operation was an act of gross negligence. His left eye had become smaller compared to the right eye . He suffered permanent disability in his left eye due to wrong operation. The complainant consulted Dr. V. Pahwa on 27.11.1995 and understood that he lost vision of the left eye because of wrong operation. The complainant wrote a letter to opposite party-1 making allegation about the damage done to his left eye by the operation. Subsequently , he served Lawyer’s notice upon opposite party-1 claiming compensation.party-1 on various occasions and was also under his treatment. Being dissatisfied with the result of operation, the complainant consulted some renowned Surgeons of the Town for regaining vision of his left eye. But there was no improvement, and he lost vision of his left eye. The complainant makes opposite party-1 responsible for losing the vision of his left eye. He stated that one thread Cord was not removed after the initial operation . But it was removed after a lapse of 2 years when he complained of losing regular shape of left eye. According to the complainant this non -removal of the Cord was an act of negligence on the part of the opposite party . 1 and this resulted in the loss of vision. As noticed , earlier the complainant consulted various renowned Physicians of his town but none of them has observed that the loss of vision was attributable to the wrong surgery done by opposite party-1. The complainant does not examine any expert on the subject to establish his allegation of negligence on the part of the doctor Unfortunate though the incident is , the complainant has failed to prove allegations against the opposite parties. So he is not entitled to get any relief in this case.
      
    In view of the aforesaid, we think that the case should fail. Ordered that the case be and the same is hereby dismissed on the contest but without cost.
      
    Complaint dismissed.
       
      

CARDIOLOGIST / CARDIOTHORACIC SURGEON :
 

  • V. Chandrasekar v. Malar Hospitals Ltd.
    2001 (1) CPR 628
       
    Consumer Protection Act, 1986 – Sections 12 and 17 – Medical negligence – Complainant underwent Coronary Angioplastry plus Stenting to LAD at opp. Party hospital but was not relieved of pain – He underwent then by-pass surgery in other hospital – Deficiency in service alleged in diagnosis and refusal on part of opp. Party to deliver the cassettes and photographs of Angiogram and Angioplastry alongwith report despite demand – Diagnosis made at opp. Party hospital was that complainant had a “Single Vessel Disease” whereas diagnosis made at other hospital was “Severe Triple Vessel Coronary Disease” – Wrong diagnosis and consequent treatment itself could not amount to negligence or deficiency in service – Complainant had been provided discharge summary providing all details – Non return of cassettes, photographs did not amount to deficiency in service.
    (Paras 11 to 14)
      
    Result : Complaint dismissed
      
    Case referred:
    1. Poona Medical Foundation Ruby Hall Clinic v. Marutirao L. Tikare and Anr, National Commission and Supreme Court on 
        Consumer Cases 1986-96 page 2656 (NS). (Para 13)
         
    Counsel for the parties:
    For the Complainant : Mr. C. R.Sathindran, Advocate.
     
    For the Opp. Party : None
     
    IMPORTANT POINT
     
    Wrong diagnosis and consequent treatment given by doctor itself cannot amount to negligence or deficiency in service.
      
    ORDER
    M. S. Janarthanam, President – This action has come before us for admission today.
        
    2. We heard arguments of learned Counsel Mr.C. R. Sathindran.
      
    3. We perused the avernments in the complaint and also the documents filed alongwith it.
      
    4. Such perusal reveals the following factors:
      
    The complainant is one V. Chandrasekar. On 2-8-1999 he was stated to have developed sever chest pain. He got admitted in Malar Hospital Ltd. (opposite party). He was admitted as an inpatient in the said hospital for a period of five days.
    As per the diagnosis, he underwent Coronary Angiogram on 3-8-1999. On 5-8-1999, he underwent Coronary Angioplastry plus Stenting to LAD at the opposite party`s hospital. He was then discharged on 9-8-1999.
     
    He was not relieved of the pain and suffering even after such treatment. Again, he was re-admitted in the opposite party`s hospital on 8-9-1999. He was put in the ICU for a day and then shifted to the ward. He was stated to have been releived of the pain. Later, it was found out that the relief was only temporary.
     
    He had paid a sum of Rs.88,250/- for Angiogram and Angioplastry at the opposite party`s hospital. This apart, he also paid a sum of Rs.41,400/- as hospital charges for hospitalisation for a period between 2-8-1999 and 9-8-1999. This apart, he had to pay a sum of Rs.4,096/- when he was re-admitted in the opposite party`s hospital on 8-9-1999. 
      
    Despite the treatment taken at the opposite party`s hospital at exorbitant expenses, he was not relieved of the pain and sufferings. Consequently, he was not satisfied with the treatment given in the said hospital He got admitted in Apollo Hospital on 3-3-2000 as he again had severe chest pain. There, he was advised to undergo by-pass surgery. As per the advice, he had undergone the by-pass surgery on 11-3-2000.
       
    5. The opposite party hospital refused to give the cassettes and photographs of the Angiogram and Angioplastry alongwith the report despite demand emerging therefore from him. He would say, a duty is cast upon the opposite party hospital to furnish such details. The non-functioning of such details, he would say, would tantamount to negligence or deficiency in service on their part. 
      
    6. The diagnosis made at the opposite party`s hospital, he would say, was wrong. The diagnosis, according to them, was that the complainant had a “Single Vessel Disease” whereas the diagnosis of the Apollo Hospital was the he had “Severe Triple Vessel Coronary Disease.” The complainant, therefore, would say that the diagnosis and treatment given at the opposite party`s hospital were wrong and consequently he had to suffer and get treatment again at a different hospital namely, Apollo Hospital.
      
    7. Because of the opposite party`s hospital refusal to furnish the cassettes, photographs of Angiogram, he had to suffer irreparable injury, mental agony and damages in that he had to not only incur expenses for the Angiogram again but also because of the wrong treatment / wrong diagnosis given by the opposite party he has to suffer injury and damages.
     
    8. He would claim the amounts as below from the opposite party:
      
    1. To pay the total medical expenses at
    opposite party`s hospital Rs.1,33,746.00
    2. Medical expenses at Apollo Hospital Rs.2,90,061.00
    3. Damage for mental agony and hardship Rs.2,25,000.00
    Total Rs.6,48,807.00 
       
    He would also claim interest @ 25% on the said amount till payment.
       
    9. The opposite party hospital, of course, furnished a discharge summary containing the details of investigation, diagnosis, treatment given besides the advice on discharge.
      
    10. From the perusal of the factors as above, it is thus abundantly crystal clear that according to the complainant that wrong diagnosis and consequent treatment and refusal to give cassettes and photographs of the Angiogram and Angioplastry alongwith the report amounts to deficiency in service on the part of the opposite party`s hospital.
          
    11. No doubt true it is as getting revealed from the records filed that the opposite party hospital, on diagnosis, found out that the complainant had Single Vessel Disease but on the contrary, it was diagnosed by the different hospital namely, Apollo Hospital that he had severe Triple Vessel Coronary Disease. Diagnosis is nothing but forming an opinion on examination of the patients suffering from a disease. Diagnosis may consist of physical as well as mechanical examination. Only on such examination, the opinion is formed as to the disease from which the patient is suffering. The opinion formed or diagnosed may vary from one medical expert to another medical expert just like the difference of opinion as expressed by the Lawyer regarding the factual matrix in the light of legal provisions. Only on the diagnosis, treatment is given. As respects wrong diagnosis and consequent treatment given, on occasions more than one, superior Forums had expressed, cannot at all amount to negligence or deficiency in service on the part of such professional
        
    12. The other negligence or deficiency in service attributed on the part of the opposite party hospital is relatable to its refusal to hand over the cassettes and photos of the Angiogram. Such refusal, we rather feel, would not also amount to deficiency in service on their part when especially the complainant had been furnished with a discharge summary containing the relevant details such as investigation, diagnosis, treatment given and advice on discharge.
       
    13. In Poona Medical Foundation Ruby Hall Clinic v. Marutirao L. Titkare & Anr. It was laid down by the National Commission that the non-supply to the complainant of the copies of the hospital records relatable to or pertaining to the surgical operation, can by no stretch of imagination to be construed as negligence unless there was a legal duty cast upon the hospital to furnish such documents to the complainant, patient. In the instant case, no material had been placed on record to point out that the complainant was legally entitled to have the copies of the document to be furnished to him.
      
    14. For the reasons as above, we are of the view that the factors getting revealed by way of averments incorporated in the complaint as well as the documents filed alongwith it do not at all prima facie point out any negligence of deficiency in service on the part of the opposite party hospital requiring further enquiry into the matter by taking the complaint on file.
        
    The complaint, as such deserves rejected I limine. We accordingly do so.
        
    Complaint dismissed.
       
      

OBSTETRICS & GYNAECOLOGIST
  

  • Revathy & Anr,. v. Dr. Chandra & Anr.
    2001 (1) CPR 600
       
    Sections 12 and 17 – Complaint alleging deficiency in service in conducting delivery of child of complainant by doctor – Relief claimed was Rs.2 lakhs spent on the birth of child and Rs.8 lakhs by way of compensation – Use of forceps by doctor during delivery was alleged to have caused internal injury to child and consequently puss developed in joints of child – Material could not be said prima facie pointing out jurisdiction of Commission – No evidence that Rs.2 lakhs was spent on treatment of child – No details pleaded for compensation of Rs.8 lakhs appeared purposely escalated – Total amount spent and quantum of compensation could not go beyond pecuniary jurisdiction of Dist. Forum – Complaint was liable to be returned to be presented before Dist.Forum.
    (Para 6)
    Result : Order accordingly.
      
    Counsel for the parties:
       
    For the Complainants: Mr. T. Mathi, Advocate
      
    For the Opposite Parties : None.
       
    ORDER
        
    M. S. Janarathanam, President –
    This action has come up for admisision before us today. We have perused the averments in the complaint and also the documents filed alongwith it. Such documents filed alongwith it. Such perusal reveals the following factors:
        
    (1) The 1st complainant Revathy is the mother of the 2nd complainant M.Indu, minor. During her pregnancy, it appears, she took treatment with the 1st opposite party – Doctor Chandra who is the proprietor of the 2nd opposite party – Chandra Hospital. The 2nd complainant was born in the 2nd opposite party-hospital and the doctor in charge of the delivery was the 1st opposite party-Dr.Chandra.
       
    (2) It appears it is a case of breach.
       
    (3) The child, it appears, was forcibly taken with the uses of forceps without resorting to ceaserian operation.
      
    (4) Because of the baby have been forcibly taken out by means of forceps, it appears, due to inertnal injury caused in such process, puss had been developed in joints and various portions of the body of the baby.
       
    (5) The baby was operated on various parts of the body for the removal of the puss.
       
    (6) Because of the alleged callous negligence on the part of the 1st opposite party, the 2nd complainant baby was put to face the agonising situation of operation for the removal of the puss formed on the joints and other portions of the body and the act of the 1st opposite party in such circumstances would prima facie tantamount to deficiency in service on her part.
       
    2. Alleging the factors as above, the complainant resorted to the institution of proceedings before this Commission for certain beliefs as prayed for in this complaint.
       
    3. The reliefs claimed in the complaint is for a direction to the opposite parties to pay a sum of Rs.2,00,000/- towards the amount stated to have been spent on the birth of the 2nd complainant, due to the callous, negligence and deficient services rendered by the opposite parties in extracting the 2nd complaint without any experience and by not giving proper aftercare and also for a direction to them to pay a sum of Rs.8,00,000/- by way of compensation for hardship and tension undergone by the 1st complainant during the course of delivery and also for mental agony, suffering, pain, tension, etc.
      
    4. We heard the arguments of learned Counsel Hspsiba representing learned Counsel Mr.T.Mathi, appearing for the complaint.
      
    5. The factors mentioned above as being culled out from the averments made in the complaint and other connected documents filed alongwith it prima facie point out deficiency in service on the part of the opposite parties for making a further enquiry into the matter.
       
    6. However, a question crops up for consideration as to whether the further enquiry is required to be made by this Commission or by the competent District Fora on the facts and in the circumstances of the case. We rather feel that the materials placed on record do not at all prima facie point out that the jurisdiction of this Commission would get attracted and if at all the jurisdiction of the competent District Fora would get attracted for the entertainment of this complaint. This complainant would claim that she had spent about Rs.2,00,000/- for the birth of the 2nd complainant and the subsequent operations the 2nd complainant minor underwent. No scrap of paper worth the name had been placed on record pointing out that she in fact spent a sum of Rs.2,00,000/-. This apart, she would also claim compensation quantified in a sum of Rs.8,00,000/- for the mental agony, hardship, tension, etc., she has undergone in the process of delivery. No details had been given for the computation of the said amount of compensation. We rather feel that the amount of compensation had been purposely escalated so as to attract the jurisdiction of this Commission added by the fact that no Court-fee need be paid for any amount of compensation claimed before the Commission or the Fora constituted under the provisions of the Act. On the facts and in the circumstances of the case, we are of the view that the total amounts spent by the complainant and the quantum of compensation she will be entitled to even the extreme case of there being any deficiency in service on the part of the opposite parties, cannot be beyond the pecuniary jurisdiction of the District Forum.
       
    7. In this view of the matter, the complaint is returned to be presented before the competent District Fora of course after amending the necessary paragraphs in the complaint. Time given for such presentation is one month from today. The Registry is directed to return this copy of the complaint and other documents filed alongwith it forthwith after obtaining the necessary and requisite endorsement for the same.
       
       

OPHTHALMOLOGIST / EYE SURGEON
  

  • Dr. K. Krishnankutty, Vijayasree Eye Hospital v. V.M. Vasu
    2001 (1) CPR 603
      
    (i) Consumer Protection Act, 1986 – Section 12 and 17 – Medical negligence – Courts would indeed be slow in attributing negligence – Courts would indeed be slow in attributing negligence on part of doctor if he has performed his duties to best of his ability with due care.
       
    Held: In 1996 (2) S.C.C. 634 – Achut Rao Hari Bhau Khoduva and others v. State of Maharashtra, the Supreme Court held “the skill of medical practitioners differ from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient. But as long as the doctor acts in a manner which is acceptable to the Medical profession and the Courts finds that he has attended on the patient with due care, skill and diligence and if the patient does not still survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. We had adopted this principle in deciding the case reported in 1999 (3) CPR 442.
    (Para 16)
         
    (ii) Consumer Protection Act, 1986 – Sections 12 and 17 – Medical negligence – Complainant was operated of his left eye and he lost eye sight – Claim for compensation – Defence plea that eyesight loss was due to presence of organised and present vitreous haemorrhage with tractional retina detachment due to diabetics – Expert evidence that retinal detachment could not be found out by ophthalmoscopy as media of left eye of complainant was not clear. – No negligence or deficiency could be attributed on opposite party – Order of District Forum awarding compensation was liable to be set aside.
    (Paras 15, 19 & 20)
          
    Result: Appeal allowed.
    Cases referred:
      
    1. Achut Rao Hart Bhau Khoduva and others v. State of Maharashtra, 1996 (2) SCC 634. (Para 16) 
    2. 1996(3) CPR 442. (Para 16)
    3. Roe v. Minister of Health, 1954(2) Q.B. 66 (Para 17) 
    4. Kailash Kumar Sharma v. Dr. Haricharan Madhu, 1997 (2) CPR 126..
     
    Counsel for the parties:
      
    For the Appellant : Shri S. Reghukumar, Advocate.
      
    For the Respondent : Shri M. Premchand, Advocate.
       
    IMPORTANT POINT
      
    Courts would be slow in attributing negligence on part of doctor if he has performed his duties to best of ability with due care and caution.
      
    ORDER
      
    K. Madhuri Latha, Member –
    The opposite in O.P. No. 784/96 of the Thrissur District Forum has filed this appeal against the order of the Forum dated 31/12/1998.
         
    2. The complainant’s case is that he went to the opposite party’s hospital on 28.9.1995 for the treatment of his eye. He was treated as an outpatient and medicines prescribed were regularly taken. The disease did not subside and he again approached the opposite party on 28/3/1996. The opposite party after assuring that the ailment will be cured, operated his left eye, 29/3/1996. After operation he completely lost eyesight of the left eye. He was advised by the opposite party to go to Aravind Eye Hospital, Madurai for further treatment. Even the expert and costly treatment there, could not cure the damage caused by the earlier operation. Hence he filed this complaint alleging negligence on the part of the opposite party claiming Rs.1,95,500/- as compensation for loss and injury.
      
    3. The opposite party appeared and filed version denying deficiency of service and negligence on his part. Opposite Party submitted that the operation was conducted after all necessary tests and after detailed examination and the eye sight was lost not as a result of the surgery but due to presence of organised and present vitreous haemorrhage with tractional retina detachment due to diabetics. There was no proximate connection between cataract operation and diabetic retinopathy. Opposite party also contended that the treatment to the complainant was free of cost and prayed for dismissal of the complaint. But the District Forum directed the opposite party to pay Rs. 25000 as compenstion for mental harassment, physical suffering and inconvenience caused to the complainant and also Rs.20000/- for medical expenses and Rs.1000/- towards costs of the proceedings.
       
    4. Aggrieved by the above order, the opposite party has come in appeal.
       
    5. The main points highlighted in the appeal memorandum are that the reasoning of the Forum is erroneous resulting from non-consideration and misappreciation of material documents. The oral evidence has also not been properly considered.
       
    6. We called for the records from the District Forum. The complainant’s evidence consists of the oral evidence of PWs 1 and 2 and Exhibits A1 to A20. The opposite party was examined as RW1 and Exhibits B1 to B14 marked on his side. 
      
    7. PW1 is the complainant. He states that his left eye was operated by the opposite party. For about 2 years, his eyesight was bad. He understood that he was suffering from diabetics when the opposite party examined him six months earlier than the operation. In the evening of the date of operation the bandage was removed and medicine was applied by the nurse. He could not see anything then. After two days the opposite party examined him.
        
    8. Opposite party gave an injection as according to him the loss of eyesight was due to want of sufficient blood pressure. After six days he was discharged from the hospital. There was no eyesight for the operated eye. The opposite party informed that it may be due to excessive smoking and nothing could be done by him to give him relief. Complainant wanted to go to the eye hospital at Madurai and the opposite party gave him a reference letter. The letter and prescription given by the opposite party hospital are marked as Exts. A1 to A7 and those from the Madurai hospital are marked as Exts.A8 to A12. The bills for purchase of medicine from outside are marked as A13 to A20. The complainant deposes that he was employed in a Snack Bar at Madras and was getting a salary of Rs.3500/- per month. He further says that his eyesight was lost due to operation and and he had spent Rs.20000/- for the operation. In cross examination he admits that the sight of the left eye was worse than that of the right eye. When he met the opposite party on or about 28th of February, the opposite party had opined that the complainant was suffering from cataract and it should be operated. When he met the opposite party for the second time his blood and urine were tested and E.C.G. taken. The complainant admits that all the tests prescribed by the doctor including scaning were done. He was wearing spectacles for twenty years and he was a smoker for about fifteen years. His eyesight was diminishing slowly. For a direct question” (Sic Matter in other language).
       
    9. PW 2 is Dr. Mary Kurtan, Professor of Ophthalmology of the Trichur Med ical College Hospital. She deposes that Vitreous haemorrhage can be caused due to many reasons. Retinal detachment can also be caused by many reasons including Vitreous haemorrhage. Retinal detachment can be found out by oph thalmoscopy examination if the media is clear. Lens implantation can be done even in a diabetic patient. In cases where retinal detachment is found out earlier, lens implantation is not done. According to PW2 even without slit lamp microscopy test cataract operation is done. Lens can be tested with even miscroscope of ophthalmoscope. She was confronted with a statement in the text book “Parson’s diseases of the eye” that lens cannot be thoroughly examined without the assistance of the slit lamp or ophthalmoscope. Her answer is that the said statement is not wrong. The tests to be conducted before a patient is operated for cataract is also stated by her in detail. She admits that in cases of retinal function disorders cataract operation need not be useful. The witness also says that 100% success could not be achieved even if all the tests are conducted. She does not rule out the possibility of vitreous haemorrhage due to retinal detachment. According to her it is not necessary to cause vitreous haemorrhage in all cases of antiglaucoma surgery. In cross examination she was asked whether diabetic retinopathy can be detected if the lens is opaque. She answers only if the media is clear this could be found out. If haemorrhage is present media will not be clear. To avoid complictions like hyper mature cataract, cataract extraction may become necessary even in cases of patients suffering from diabetic retinopathy. If diabetic retinopathy is present further treatment will become necessary. Organised and fresh vitreous haemorrhage can be caused due to diabetic retinopathy which may result in loss of vision.
         
    10. RW1 is the opposite party Dr.K. Krishnankutty. He admits having treated the complainant. He proves Exts. B1 to B14. Ext.B1 is the outpatient record and Ext.B2 is the inpatient record relating to the complainant. The complainant came to him on 28.8.1995 initially. His eyesight was tested. The right eye had 6/12 vision. The left eye could make out the fingers held only a distance oftwo meters. He could not read. His blood sugar was tested. He was a smoker and he was warned that diabetics and smoking will impair his eye sight. Test was conducted to find out the presence of sinusitis and gums were checked up. The eye pressure was also examined. Again tests were conducted a day before the opeation. Then the left eye sight was very meagre. He could identify only the red light. Cataract operation had to be urgently conducted to avoid bursting and unbearable pain. The patient was told about all this and he was informed that the operation is complicated. The patient was told about all this and he was informed that the operation is complicated. The patient expressed his willingness for operation in writing. He was admitted in the hospital on the 28th and operated on the 29th. Next day when the bandage was removed there was only slight bulging of the eye which was usual. Again bangage was applied and on the third day eyesight was examined. He could not see any light. Direct and indirect, opthalmoscopic tests were conducted. It was directed that he was having both new and old vitreous haemorrhage. For confirmation slight lamp microscope examination was done. It was confirmed that he was having organised and fresh heamorrhage and the patient was advised to take a second expert opinion and referred him to the Madurai Hospital. The report from the said hospital was brought by the patient and shown to the opposite party. The loss of vision is due to diabetic retinopathy and smoking. RW1 says that he had conducted all the tests, there was no negligence or want of deligence on his part in treating the patient and there was no nexus between the operation and the loss of eye sight.
       
    11. Ext. B3 is the record to show that sonography test conducted before the operation. Only if the heamorrhage is very heavy, it could be find out by this method. RW1 says that he did not find any presence of vitreous heamorrhage before the operation.The patient was referred to Aravind Eye Hospital, Madurai for specialised surgery. The witness denied negligence and want of care on his part.
      
    12. Exts. A1 to A20 proved by the complainant as PW1. It is evident that the surgery was conducted by the opposite party in the left eye of the complainant, had to pay for the same both in the hospital run by the opposite party and also in the Aravind Eye Hospital, Madurai. The complainant was referred by the opposite party for expert opinion and treatment to Dr. Namperumal Swamy of Aravind Hospital. It is also beyond controversy that the complainant did not get any relief by the surgery or treatment and the condition of his left eye became worse. But the question to be considered is as to whether there was any negligence or deficiency in service on the part of the opposite party in advising the complainant, in prescribing medicines, in conducting the surgery and in the post operational care meted out to the complainant. It is relevant to note that the complainant admists that he was a smoker for more than twenty years and was using spectacles. Even according to him his left eye sight was very poor. When he first came to the opposite party in August, 95, he was examined and on finding that he was a diabetic patient advice was tendered that surgery could be conducted only after controlling diabetics. From Ext. B1 and B2 it is established that initially he was treated as an outpatient and later as an inpatient for operation. Ext. B5 is the blood sugar report dated 27/3/1996. Ext.B3 is the ultrasonography, B4 is the blood chemistry report. Ext.B6 is the biochemistry report. Ext. B7 is the dental hygience report, Ext. B8 is again the biochemistry report and B9 the clinical chemistry report. B10 is the urine test report and B11 is the urine C and S report. B13 is the pre-operative instructions and B14 is the E.C.G. of the complainant dated 4/3/1996. Complainant frankly admits that all the tests prescribed by the opposite party were taken before the operation.
       
    13. The District Forum went at a tangent and doubted the tests conducted for the following reasons.
       
    (a) Ext. B1 and B2 the inpatient and outpatient cards do no show that tests have been conducted.
    (b) The test reports are of different clinics and hospitals and as the tests were not conducted by the opposite party in his hospital they could not be relied on.
    (c) These tests are done at the instance of the opposite party before PW1 was operated upon and hence not reliable.
       
    Apart from the above, opposite party was not complied with the five preliminary tests which are mandatory before a patient can be operated upon and intraocular lens could be implanted. For these and for not conducting opthalmoscopic test it was held by the District Forum that opposite party has failed to discharge his duty to conduct tests and find out vitreous heamorrhage before the operation.
       
    14. We have to observe that the five tests propounded in the text book namely “Person’s diseases of the Eye” VIIIth Edition by Stephen - J.H. Miller, only says that the tests are only valuable. It is nowhere stated that these tests are mandatory.
      
    15. One has to go by the expert evidence available in the case. We have summarised earlier the evidence of PW2. It is an admitted fact that the media of the left eye of the complainant was not clear. His vision was lazy and eyelens was opaque. The retinal detachment could be found out, according to PW2 by Opthalmoscopy examination only if the media is clear. She says that lens implanation can be done even in a diabetic patient. The view expressed in Parson’s Diseases of the Eye” has been erroded by the advancement of medical science. It is true lens implantation is not to be attempted in a patient having retinal detachment. In this case retinal detachment could not be found out because of the condition of the eye of the complainant. We anxiously analysed the evidence of PW2 to assess that the treatment and surgery on the patient evidences any deficiency in service or negligence. We could not find any one of the deficiencies alleged by the complainant is post operative namely that the bandage was removed by the nurse on the same evening and not by the doctor. But the opposite party in his deposition says that the bandage was removed in his presence after three days. It does not stand to conviction that a nurse will remove the bandage on the same evening of the operation. It seems that the complainant is anxious to allege some deficiency on the opposite party. It is alleged in the notice of the complainant dated 3/6/1996 that sufficient precautions were not taken by the opposite party in treating him. In his evidence as PW1 he admits that all the necessary tests as prescribed by the opposite party were taken. There seems to be no consistant case for the complainant that the opposite party assured him complete cure by a minor operation. The fact that the operation was not minor is evident from the letter of consent given by the complainant before operation. In a case of minor surgery no such consent letter is required. On appreciation of the totality of evidence we are of the view that no negligence or deficiency in service can be attributed on the opposite party.
       
    16. In Achut Rao Hari Bhau Khoduva and others v. State of Maharashtra, the Supreme Court held the skill of medical Practitioners differ from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient. But as long as the doctor acts in a manner which is acceptable to the Medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient does not still survive or suffers a permanent ailment it would be difficult to hold the doctor to be guilty of negligence. We had adopted this principle in deciding the case reported in 1999 (3) CPR 442. This case was brought to our notice by the learned counsel for the appellant. 
        
    17. Lord Denning said in Roe v. Minister of Health “we would be doing a disservice to the community at large if we were to impose a liability on hospitals and doctors for everything that happens to go wrong. Doctors would be lead to think of their own safety than the good of their patients, initiative would be stiffed and confidence shaken. A proper sense of proportion requires us to have regard to the condition in which hospitals and doctors have to work. We must insist a due care for the patient at every point but we must not condemn as negligence which is only a misadventure”.
      
    18. The same law Lord in Hatcher v. Black (1954) Times 2nd July explained the law on the subject of medical negligence against doctors and hospitals in the following words. “In a hospital when a person who is ill goes for treatment, there is always some risk, no matter what cure is used. Every surgical operation involves risks. It would be wrong and indeed bad law to say that simply because of misadventure mishap occurred, the hospitals and doctors are thereby liable. It would be disastrous for the community if it were so. It would mean that if a doctor examining a patient or a surgeon operating at a table instead of getting on with his consent would be forever looking over shoulder to see if someone was coming up with a dagger. His professional reputation is as dear to him as his body. Perhaps more so and an action for negligence can wound his 
        
    2.      1999 (3) CPR 442
    3.      1954 (2) Q.B. 66
         
    reputation as severally as a dagger can his body. You must not therefore find him negligent simply because something happened to go wrong. If for instance one of the risks inherent in operation actually takes place or some complication ensues which lessens or takes away the benefits that were hoped for or if in a matter of opinion he makes an error in judgement you should only find him guilty of negligence when he falls short of the standards of a skillfull medical man”.
      
    19. The learned counsel for the appellant brought to our notice a decision of the National Commission reported in Kailash Kumar Sharma v. Dr. Haricharan Madhu. In the said case the opposite party conducted surgery for cataract on the complainant and Intra Ocular Lens was fitted. The complainant alleged total loss of vision thereafter and claimed compensation for improper implantation. In the said case even though as per the opinion of another doctor loss of vision wasdue to improper implantation, the case was dismissed finding that the complainant had failed to discharge the burden of negligence on the opposite party. In the present case the contention is that there was organised and fresh vitreous haemorrhage and the opposite party failed to detech this and retinal detachment and conducted the lens implantation resulting in complete loss of vision. The independent evidence of PW2 is sufficient to rebut the contention of the complainant. The letter from Dr. Namperumal Swamy does not also give any indication that the opposite party was negligent in any manner either in examining the patient, conducting the surgery or giving post operative care. The District Forum has faulted the opposite party in so far as all the tests were not conducted by him or in his hospital.no one can expect such facilities in an opthalmic hospital. Minimum facilities and experienced doctors relating to opthalmology are available for treatment of the eye and the non-availability of other general infrastructural facilities or want of most modern sophisticated equipments cannot be termed as deficiency in service of the hospital or doctor.
       
    20. The above discussion lead us to the conclusion tat there is no evidence for negligence or deficiency in service against the opposite party/appellant. The order of the District Forum is liable to be set aside. We allow the appeal, set aside. We allow the appeal, set aside the order of the District Forum and dismiss the complaint. The parties are directed to bear their respective costs through out.
       
    Appeal allowed.
       

 

 

By |2022-07-20T16:41:46+00:00July 20, 2022|Uncategorized|Comments Off on Medicolegal

About the Author: