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RIGHT
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  • 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.

        

  • Mr. Yoginder Beri v. Grover Eye &
    E.N.T. Hospital & Ors.


    2001 (2) CPR 358

         



    STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T: CHANDIGARH


       


    Consumer Protection Act, 1986 – Sections 2(1) (o) r/w Section 2(1) (g) 12 and 14 – Complaint about medical negligence – Deficiency in Medical service – Cataract operation of both eye was big and lazy – Fact known to complainant -
    O.P. did not assure restore of normal vision in right eye – Operation was successful – But due to big right eye, problem of double image and incompatible image occurred – Second opinion taken – No evidence of defective operation or defective treatment suggested – whether there is deficiency in service on facts or in law? (No) – Complaint dismissed – 1997 (2) CPR 126 NC) relied on. 

        


    Held: it is undisputed that the complainant Mr. Yoginder Beri had problem in his eyes and he consulted Opposite Party No.2 Dr. Rohit Grover of the Opposite Party No.1 – Grover Eye & ENT Hospital in May 1997. It is also not disputed that the Opposite Party No. 2 Dr. Rohit Grover advised surgery in his right eye by the imparting of intraocular lens with phaco emulsification. For the service rendered by the Opposite Party No. 2 Dr. Rohit Grover for himself and on behalf of Opposite Party No.1 the Hospital, the requisite fees was charged from the complainant and the same is not in dispute. It is also not disputed that ultimately the right eye of Mr. Yoginder Beri was operated upon on the date fixed i.e., 27/5/1997 at 6.30 a.m. at Hospital (Opposite Party No.1) by Opposite Party No.2 Dr. Rohit Grover. It is also not in dispute that the complainant himself went to have consultation from Dr.
    V.K. Dada, Head of Department. All India Institute of Medical Sciences
    (A.I.I.M.S.), New Delhi and that there he had some treatment of Yag Laser and other tests.

    (para 17)

        


    The dispute arises about the treatment by means of operation conducted by Opposite Party No.2 Dr. Rohit Grover on the right eye resulting to the problem in the eye of complainant regarding his seeing double image and incompatibility of images in two eyes i.e. right side operated eye and the left side eye. The main stand of the Opposite Parties No.1 & 2 is that the right eye of the complainant Mr. Yoginder Beri was bigger than the left eye and the result of it was that he was having bigger image of the object in his right eye than the size of the image perceived through the vision in the left eye. According to the aveerments made in the reply of the Opposite Parties No.1 & 2, this problem of bigger eye of the complainant on the right side was since the childhood and was thus a problem which he was having since his birth and childhood. It may also be mentioned that at the time of the initial check up of the eyes of the complainant Mr. Yoginder Beri was told by Dr. Rohit Grover about this abnormality and the fact that there was limited visual gain accepted in the right eye. The perusal of Annexure C-1 (2nd page) will go to show that an endorsement was made regarding the right eye by Dr. Rohit Grover, which is as follows:

       


    “Limited visual gain Rt. Eye explained”. (Para 18)

        


    A careful perusal of the statement of the complainant made in his cross examination will go to show that he could not contradict the fact that eye ball of his right eye was bigger as compared to the left eye. He also admitted as a fact that after the cataract operation, with the use of glasses, his vision was raised to 6/18. He also stated that it was correct that after the operation, eye sight of his right eye improved. The complainant Mr. Yoginder
    Beri, as per his statement made in cross-examination underwent laser treatment at
    AIIMS, New Delhi. He was not aware of the fact that it was not permissible atleast for the period of three months after the cataract operation. Mr. Yoginder Beri not only consulted Dr. Dadda at
    AIIMS, New Delhi but also had consultation in various hospitals such as Government Hospital, Sector 32, General Hospital, Sector 16 and
    P.G.I. at Chandigarh. The complainant also admitted as a fact that none of the Doctors to whom he consulted after his operation gave any opinion in writing about the operation conducted by Dr. Rohit Grover being deficient or that Dr. Rohit Grover was medically negligent in performing the operation and in the implantation of the intra-ocular lens. Now since the complainant himself could not contradict the fact that his eye ball of the right eye was bigger as compared to the left eye, the statement of Dr. Rohit Grover in regard to the problems faced by a person having such kind of defected size of eye ballbecomes quite relevant. It can not be said that the power of the lens implanted in the right eye of Mr. Yoginder Beri by Dr. Rohit Grover has not been done or proved by any reliable and cogent evidence of any specialist to be wrong and incorrect and thereby causing the problem said to be post operative to the said eye of the complainant Mr. Yoginder
    Beri. At this place, it may be useful to refer though at the cost of repetition that the complainant had a definite improvement, even according to his own statement in the vision in his right eye and he was able to read the top four lines of the chart though he claimed in his cross-examination that even prior to operation, he could read top three lines which fact, he has not proved by any medical evidence of any age specialist.

        

    Held on facts: It will be relevant to bear in mind that after getting the right eye operated from Opposite Party No.2 Dr. Rohit Grover, the complainant Mr. Yoginder Beri consulted other eye surgeons at different hospitals mentioned above at Chandigarh and also consulted Dr. Dada at
    A.I.I.M.S. , New Delhi and also had laser treatment and other tests which facts were not in the knowledge of Dr. Rohit Grover and the consultations were not made with the consent of the Opposite Party No.2. In other words, the complainant himself decided to have second and subsequent opinion and treatment after his operation aforesaid conducted by Dr. Rohit Grover. It is also significant to note that apart from the statement of the complainant Mr. Yoginder
    Beri, there is no other medical evidence of any eye specialist to show that the diagnosis of the ailment in the eye of the complainant made by the Opposite Party No.2 Dr. Rohit Grover was incorrect and faulty and line of treatment prescribed and given by the Opposite party No.2 was not the correct line of treatment. It can not thus be held on the basis of the evidence on record that Dr. Rohit Grover on facts, was either negligent in performing the operation and providing treatment to the complainant Mr. Yoginder Beri or was deficient in anyway in rendering the services hired by the complainant Mr. Yoginder
    Beri.

    (Para 24)

         


    Held on law relying on 1997 (2) CPR 126 NC: In our considered view, the case law cited by the learned counsel for the respondent is quite applicable to the facts of the instant case.
    Resultanly, the complainant has failed to prove any deficiency in service on the part of Opposite Party No.2 Dr. Rohit Grover of Opposite Party No.1 Grover Eye & ENT Hospital and has further failed to show that Dr. Rohit Grover was in any way medically negligent in providing the treatment to the complainant. The complainant, without the advise or approval of Dr. Rohit Grover abandoned the treatment prescribed by Dr. Grover and consulted several other eye specialists at Chandigarh and also at
    A.I.I.M.S. , at New Delhi where he under went laser treatment and other tests which according to Dr. Rohit Grover should not have been undertaken so soon after the operation for the cataract in the right eye. In other words, the complainant himself is responsible to the condition of the eye, in which he is placed after the operation. Since the complaint fails against the Opposite Parties No.1 and 2, the question of any liability on the part of Opposite Party No.3 namely new India Assurance Company Ltd., does not arise and the complaint deserves to be dismissed against the Opposite Parties. The Opposite Party No.3 is the Insurance Company which has insured the Opposite Parties No.1 & 2 (Para 26).

        


    Held finally: Consequently, this complaint lacks merit and is dismissed. However, in the circumstances of the case, the costs of the complaint shall be borne by the parties themselves.

    para 27)

       


    Result: Complaint dismissed

     


    Case referred:

       


  • Kailash Kumar Sharma v. Dr. Hari Charan Mathur,


    1997(2) CPR 126. (Para 24)

       


    IMPORTANT POINT


       


    The complainant has failed to prove any deficiency in medical service of eye surgeon or the eye hospital either on facts or in law regarding problem in his right eye due to cataract operation.

       



    ORDER


        


    K.K. Srivastava, President – The complainant Mr. Yoginder Beri a resident of House No. 5155/3, Modern Housing Complex,
    Manimajra, Chandigarh approached Opposite Party No. 2 Dr. Rohit Grover of Grover Eye & ENT Hospital, Kothi No. 140, Sector 35-A, Chandigarh (Opposite Party No.1) for treatment of problem in his eyes. The Opposite Party No.2 Dr. Rohit Grover after thoroughly checking the eyes of the complainant Mr. Yoginder Beri apprised him that he was having a Cataract in both his eyes and advised him for operation on urgent basis. The operation was to be done for Phaco Emulsification i.e. by implanting Intra Ocular Lens (for short to be referred as
    I.O.L). The complainant had consulted Dr. Rohit Grover on 2nd May 1997 for finalizing the date of further queries from the Opposite Party No.2 Dr. Rohit Grover whether any reoperation is possible to rectify the disorder by change of lens implanted by him but Dr. Rohit Grover showed his ignorance and recommended the names of Doctors for consultation who according to him were authorities in said kind of surgery in India:-

        



    1)
    Dr. (Prof) V.K. Dada Head of Deptt

    AIIMS, HP, Hospital, New Delhi

        



    2)
    Dr. Kumar & Dr. Keiky Mehta Colaba Hospital, Bombay

       


    It is alleged that the complainant Mr. Yoginder Beri went to New Delhi and sought appointment with
    nDr. V.K. Dada at his residence as he was on leave from the hospital. The complainant visited the AIIMS Hospital on 7.7.1997 for consultation and after checkup Dr. Dada recommended yag laser and other tests and asked him to visit again on 10/7/1997. On 10/7/1997, Dr. Dada verbally advised the complainant that risk of re-operation should not be taken as the chances of its success are almost nil and advised the complainant Mr. Beri that he should remained dependent on the left eye and be cautious in the event of its operation if required at later stage.

        


    It has been contended by the complainant that due to poor vision, he had to seek his premature retirement from the job with the State Bank of India otherwise in the normal course, the complainant was to retire on attaining the superannuation age of 60 years on 30/4/2001 as his date of birth was recorded as 15/4/1991. The complainant however sought his premature retirement as aforesaid on 2/6/1998. It is the allegation of the complainant that he suffered permanent disability in his vision resulting in physical and mental harassment due to the deficiency in service on the part of the Opposite Parties, Mr Yoginder
    Beri, the complainant, claimed damages to the extent of Rs.7 lacs with the following break up:- 

        


    Sr.No. Details Amount

        


    1. Paid to Opposite Party No.1 towards the operation
    Rs. 12,500.00

    2. Paid as consultation charges Rs. 75.00

    3. Loss of Salary of two months Rs. 37,425.00

    4. Compensation for permanent disability, physical torture Rs.6,50,000.00

    Total Rs.7,00,000.00 




    3.
    The complainant, however, averred that he received a sum of Rs.10,000/- from his employer i.e. the State Bank of India being the benefit of medical reimbursement which is admissible in the service of the complainant. The complainant has assured in Para 14 of his complaint to return the said amount of Rs.10,000/- to his employer, if the same was ordered and actually to be paid to him by the Opposite Parties.

      


    4.
    The complainant got a legal notice served on 5-4-1998 on Opposite Party Nos. 1 & 2 claiming the compensation of Rs.7,00,000/-. The said legal notice was replied by both the Opposite Parties vide reply dated 31-5-1998 and denied their liability to pay any amount of compensation. With these allegations, this complaint was filed before this Commission through counsel Shri Ashok Gupta, Advocate on 31/3/1999 and amended complaint was filed on 15/10/1999. The amount was claimed against the three Opposite Parties. The third Opposite Party being the New India Assurance Company Ltd. Sector 17-D.
    Chandigarh, the insurer of Opposite Parties No. 1 & 2.

      


    5.
    After serving the notices of the complaint case, a joint reply was filed by the Opposite Parties No.1 & 2. Certain preliminary objections were raised in the reply which states briefly as under:-

        


    1. The complainant does not disclose the basis of the opinion formed by the complainant for any deficiency in service. No documentary proof has been filed alongwith the complaint from any Specialist showing the treatment given by the Opposite Parties being not accordance with the medical science.

    2. There is no basis for claiming compensation for a sum of Rs.7
    lacs. The payment made to the Opposite Parties No.1 & 2 included other charges out of which a sum of Rs.4800.00 paise were the operation charges.

       



    6.
    It has been alleged that the amount of compensaiton claimed by the complainant is exorbitant. As a matter of fact the complainant approached Dr. Rohit Grover the answering Opposite Party No.2 for removal of Cataract by automated machine called Phaco for short. The complainant was provided intro-ocular lens with phaco emulsification, which is the latest and safest method of Cataract surgery being most popular in America and Opposite Party No.2 had been practising on this line since 1994.

       


    7.
    It was specifically averred in Para 3 by the Opposite Parties that the complainant was told that since his right eye has been weak since birth and even after operation, there will be certain limitation of vision as compared to normal eye. The complainant was using spectacles before operation of the number about 10.0 in the right eye which he never used as the eye never functioned well with the glasses. This condition of Anisoetropic Amblyopia (for short hereafter called lazy eye). It was further contended that the success of the operation was absolute and the complainant was happy after having shown to Professor V.K.Dada of
    AIIMS., New Delhi. The complainant had absolutely normal post operative recovery except for the problem of weak right eye as explained above. It was also averred that as a matter of fact the complainant wanted to take leave on medical ground as he wanted to avoid posting ot of station and he intended to prolong the medical leave with the help of Opposite Parties, which was refused and this complaint has been filed only after the said refusal on the part of the Opposite Party No.2.

       


    8.
    In Para 4 of the preliminary objections, it was contended that the eye has been traditionally compared to a camera and cinema project or where object of the outside world is focused on the other side of the lens. It is submitted that longer the eye the larger will be the size of the image as is clear with the diagrams drawn and attached with this reply. If the object is focused on the retina of the eye and is viewed with internal lens system of the eye then the longer eye needs minus number of the glasses for focusing the image as is common that the minus numbered glasses make the image seen smaller and plus numbered glasses make the image appear bigger.

      


    9.
    In the case of the complainant, there were conflicting situations due to inherent in born condition, which makes it possible to give either near zero spectacles number with greater image size difference of the two eyes as is explained above and to keep the image size similar between the two eyes. It was categorically mentioned in the para aforesaid that the above matters were fully explained to the complainant. The treatment prescribed by the Opposite Party No.2 is the correct treatment as per the Specialist’s opinion
    Dr.V.K. Dada in his book, the extract of which was attached with the reply. In nutshell the Opposite Parties No.1 & 2 averred in the last paragraph of Para No.4 of the preliminary objections as under:-

        


    “Hence the entire treatment given to the Complainant by the Respondents was in accordance with the latest Medical Science and the Complainant has improved from the stage he was before operation”. 

        



    10.
    On merits, the averments made in the complaint were replied to. The relevant paragraphs to which our attention was drawn are paragraphs 9, 10,11 and 12 to which reference may be made as under: 




    11
    Para 9, the averments of the complaint were denied and it was submitted that it is evident from post operative recovery that spectacles number was prescribed within two weeks of surgery. The difference of spectacle number of the two eyes which has been since childhood was reduced to a great extent. The correct power of lens to be implanted is decided after taking into account both the eyes, if the size of both the eyes is similar and in the case of complainant his right eye was bigger than the left eye, hence there was a difference of image.

       


    12.
    In Para 10, it was averred after denying the averments made in Para 10 of the complaint that the complainant failed to understand the meaning of diabolical images which he kept on asserting. It is submitted that the double image or diplopia can result if lazy eye is again put to work in late stage of life. The deficiency in power of glasses of the left eye, which was not operated, cannot be commented upon. The use of normal zero powered glasses as suggested to the complainant for his right eye is a very valid suggestion and is being adopted by the complainant.

       


    13.
    It was further averred that the complainant started wearing glasses since he used to have double vision. However, he tried to wear the correct powered spectacle for his right eye during young age. If spectacle power of the right eye is to be matched with the left eye, that can be done at this stage but the persistence of double vision is likely to be there on account of image size disparity of two eyes due to difference in size.

       


    14.
    In Para 11, the allegations made in the complaint were denied as incorrect and it was sibmitted that the complainant cannot read even the top line of the chart before the operation and after operation his vision was brought to 6/18 (top 4 lines) in the right eye.

       


    15.
    In Para 12, it was averred, interalia, as under:

       


    “………….. The complainant was explained that spectacles will be needed after surgery with limitation of vision due to inherent condition. The complainant probably has not informed about his right eye being lazy eye since birth and also did not mention that he underwent YAG Lazer Capsulotomy for his right eye at New Delhi on 7th of July, 1997 without the advice of the operative Surgeon, which was not required at all and which is not taken atleast for three months after Cataract surgery. The power difference of the two eyes can be undertaken if the image size disparity factor is overlooked”.

        



    16.
    The case proceeds ex-parte against the Opposite Party No.3, New India Assurance Company Limited. The parties filed their respective evidence in the shape of their affidavit and were cross examined by the opposite counsel. The learned counsel for the complainant made his submissions before us which were replied to and given submissions were put worth by the learned counsel for the Opposite Parties No 1 & 2. We were taken through the record of the case in detail which included the reference to the pleading and to the affidavits and cross examination of the parties. Both the parties relied on the case law regarding the case being brought under the category of medical negligence and consequently the deficiency in service on the part of Opposite Party No.2 and the denial of it by the said party.

       


    17.
    Before proceeding to consider the case of the complainant regarding deficiency in service on part of Opposite Party No.2 and medical negligence on his part as the factor responsible for the persistent trouble in the eye of the complainant Mr. Yoginder
    Beri, it would be useful to refer to certain salient features of the case, as also to the evidence of the parties. It is undisputed that the complainant M r. Yoginder Beri had problem in his eyes and he consulted Opposite Party No.2 Dr. Rohit Grover Eye & ENT Hospital in May 1997. It is also not disputed that the Opposite Party No.2 Dr. Rohit Grover advised surgery in his right eye by the imparting of intraocular lens with phaco emulsification. For the service rendered by the Opposite Party No.2 Dr. Rohit Grover for himself and on behalf of Opposite Party No.1 the Hospital, the requisite fees was charged from the complainant and the same is not in dispute. It is also not eisputed that ultimately the right eye of Mr. Yoginder Beri was operated upon the date fixed i.e. 27/5/1997 at 6.30 a.m. at Hospital (Opposite Party No.1) by Opposite Party No.2 Dr. Rohit Grover. It is also not in dispute that the complainant himself went to have consultation
    from.Dr. V.K. Dada, Head of Department, All India Institute of Medical Sciences
    (AIIMS) New Delhi and that there he had some treatment of yag Laser and other tests.

       


    18.
    The dispute arises about the treatment by means of operation conducted by Opposite Party No. 2 Dr. Rohit Grover on the right eye resulting to the problem in the eye of complainant regarding his seeing double image and incompatibility of images in two eyes i.e. right side operated eye and the left side eye. The main stand of the Opposite Parties No. 1 and 2 is the right eye of the complainant Mr. Yoginder Beri was bigger than the left eye and the result of it was that he was having bigger image of the object in his right eye than the size of the image perceived through the vision in the left eye. According to the averments made in the reply of the Opposite Parties No.1 & 2 this problem of bigger eye of the complainant on the right side was since the childhood and was thus a problem which he was having since his birth and childhood. It may also be mentioned that at the time of the initial check up of the eyes of the complainant. Mr. Yoginder Beri was told by Dr. Rohit Grover about this abnormality and the fact that there was limited visual gain accepted in the right eye. The perusal of Annexure C-1 (2nd page) will go to show that an endorsement was made regarding the right eye by Dr. Rohit Grover, which is as follows:-

        


    “Limited visual gain Rt. Eye explained”.

      

    Dr. Rohit Grover filed his affidavit by way of evidence and deposed therein the allegations made in the written reply. The affidavit contains almost the same allegations which are mentioned in the written reply, a reference to which has already been made in the earlier part of our
    judgement. Dr. Rohit Grover was cross examined by the complainant. In his cross examination, he stated,
    interalia, as under:-

       

    “After examining the complainant, I found that he suffered from cataract in his both eyes. The right eye had more Cataract than the left eye. I advised surgery for the removal of the Cataract in his right eye. The complainant was advised in the alternative two treatments, the one was the surgery for Cataract with stiches and the other without
    stiches. I told the complainant that Phaco (Phaco) is the best available form of surgery regarding the treatment of Cataract. The difference between the two types of surgeries is that the Phaco surgery has the speedial recovery and is also safe than the other form of surgery for the removal of Cataract. The document numbered C-2 was prepared in my office regarding the treatment of the complainant. The attached document with C-2 has also been prepared by me. The number of eyes which are mentioned in the attached document were prescribed after examination of the complainant by me. I have seen the documents C-3, C-4 and C-5 which are dated 27/6/1997, 24/7/1997 and 27/5/1997 respectively and the same have been prepared by me in relation to the treatment of the complainant. 

       


    The complainant had come to me with the complaint that he was not comfortable with the spectacles containing the number given by me and I after examining him changed the prescription for the spectacles. The complainant again came to me with the grievance that he was still not comfortable with his eyes and wanted my opinion to consult another eye surgeon and have second opinion. I suggested him the name of Dr. Dada, Head of the Department. All India Institute of Medical Sciences
    (A.I.I.M.S.)”

       



    19.
    The complainant Mr. Yoginder Beri was cross examined with reference to his affidavit dated 15/7/1999. The relevant cross examination of the complainant may be referred to as under:

        


    “…..It is correct that I used spectacles even prior to this operation. The right eye was provided with only plain glasses and in the left eye. I possessed power glasses. During the process of operation, which was held on 27/5/1997, there might have been minor difficulty, otherwise, it was OK. It is correct that after one week, I was provided with power glasses. I am unable to contradict that Eye-ball of the right eye, in my case, is bigger as compared to the left eye.

        


    I thereafter went to the All India Institute of Medical Sciences
    (AIIMS) and consulted Dr. V.K. Dada. Besides, I also went to Government Hospital, Sector 32, General Hospital, Sector 16 and
    P.G.I. at Chandigarh. The Doctors in the aforesaid institutes verbally told me that the lens fixed by Dr. Grover, respondent No.2 is wrong and that I should contact him once again. However, none of the Doctors in the aforesaid Institutes gave me written opinion in this regard. I have gone through para No.4 of affidavit of Dr. Grover dated 23/7/1999 (Annexure R/) and it is correct. 

       


    It is correct that after the cataract operation, with the use of glasses, the vision was raised to 6/18. It is incorrect that before the operation, I could read 4th line. On the contrary, prior to operation I could read even first three lines. It is correct that after the operation eye-sight of my right eye improved.

       


    It is correct that at New Delhi, I also had a laser treatment. It was done in
    AIIMS. I don’t know that it was not permissible atleast for a period of three months after the cataract operation. I may add that it has no relevance with the merits of the case”.

       


    The complainant Mr. Yoginder Beri in his affidavit reproduced the averments made in Para 10 and averred as
    point,(a) about the adjustment by atleast one or two powers of the lens which is to be implanted in the eye by operation. This has referred to above that the averments made in Para 10 have been not admitted in the reply of Opposite Parties No.1 and 2 and the Opposite Party No.2 has in his affidavit also denied the same. In cross examination of Opposite Party No. 2 Dr. Rohit Grover, a suggestion was put to him as under:

       


    “….. The lens to be replaced is normally taken out on or before the date of operation, before being inserted during the surgery. The type of that looking to the condition of the eye of the complainant, the lens of the strength of 8 or 9 ought to have been used but due to negligence or mistake, the lens of the power of 12 was inserted in his right eye”.

       


    It appears that the word “denial” of the suggestion has been omitted to be mentioned. The statement in the cross examination is to be read in the light of affidavit filed by the deponent i.e. Dr. Rohit Grover and also the stand taken by him in his reply. Viewed from this angle, this cannot be stated to be the admission of Dr. Rohit Grover at any rate and it was not even argued by the learned counsel for the complainant. 

       



    20.
    A careful perusal of the statement of the complainant made in his cross examination will go to show that he could not contradict the fact that eye ball of his right eye was bigger as compared to the left eye. He also admitted as a fact that after cataract operation, with the use of glasses, his vision was raised to 6/18. He also stated that it was correct that after the operation, eyesight of his right eye improved. The complainant Mr. Yoginder
    Beri, as per his statement made in cross examination underwent laser treatment at
    AIIMS, New Delhi. He was not aware of the fact that it was not permissible at least for the period of three months after the cataract operation. Mr. Yoginder
    Beri, however, went on to state that it had no relevance with his case. It is also note worthy that the complainant Mr. Yoginder Beri not only consulted Dr. Dadda at
    AIIMS, New Delhi but also had consultation in various hospitals such as Government Hospital, Sector 32, General Hospital, Sector 16 and
    P.G.I. at Chandigarh. The complainant also admitted as a fact that none of the Doctors to whom he consulted after his operation gave any opinion in writing about the operation conducted by Dr. Rohit Grover being deficient dfor that Dr. Rohit Grover was medically negligent in performing the operation and in the implantation of the intra-ocular lens. Now since the complainant himself could not contradict the fact that his eye ball of the right eye was bigger as compared to the left eye, the statement of Dr. Rohit Grover in regard to the problems faced by a person having such kind of defected size of eye ball becomes quite relevant. It can not be said that the power of the lens implanted in the right eye of Mr. Yoginder Beri by Dr. Rohit Grover has not been done or proved by any reliable and cogent evidence of any specialist to be wrong and incorrect and thereby causing the problem said to be postoperative to the said eye of the complainant Mr. Yoginder
    Beri. At this place, it may be useful to refer though at the cost of repetition that the complainant had a definite improvement, even according to his own statement in the vision in his right eye and he was able to read the top four lines of the chart though he claimed in his cross-examination that even prior to operation, he could read top three lines which fact, he has not proved by any medical evidence of any eye specialist.

        


    20 Alongwith his reply, Dr. Rohit Grover has sketches as Annexure R-1 of (1) Normal Eye, (2) Myopia (Long eye) out of focus image. (3) Long Eye Myopia with low power IOL,Focussed image of larger size (4) Long eye with IOL and Minus Powered spectacle lens giving focussed image of reduced size (similar to normal).

        



    21.
    In support of his defence, Dr. Grover attached extracts from the book on
    I.O.L. and Phacoemulsification Secrets (Second Edition) by Dr.
    V.K. Dada, Professor of Ophthalmology, Dr. Rajendra Prasad Centre for Opthalmic Sciences, All India Institute of Medical Sciences, New Delhi, India published by Jaypee Brothers, Medical Publishers (P) Ltd. B-23/23B Ansari Road,
    Daryaganj, P.B. 7193, New Delhi 110 002, New Delhi. 

       


    22.
    Chapter 12 deals with power considerations in IOL and a reference is made to the following question and answers (marked with red ink by Opposite Party No.2 Dr. Rohit Grover)

        



    Q.
    State some relevant factors concerning intraocular implant power.

        



    Ans.
    1. Patients involved in near work for most of the day may be over correct in implant to be without glasses for near. Minus spectacles should be given for distance.



    2. A Preoperative my ope should over corrected in implant to be with myopic glasses postoperatively.



    3. Fellow eye with good vision with glasses demands a similar spectacle power in the operated eye to prevent intolerable
    anisometropia.



    4. Fellow eye with gross diminution of vision is not considered in power calculation of implant.



    5. It is better to implant + 19.00 D standard powered implant if keratometry and axial length measurement facilities are not available because 80% of the implants are powered between + 18.00 to 20.00 D (Author’s observation).



    6. Chances of having ametropia more than 2.00 D is 5% and more than 5.00 D is less than 1%.

       



    23.
    Apart from it, extracts of book on “Refraction and Clinical Optics” edited by Aran
    Safir, M.D, Director, Institute of Computer Science, Mount Sinai School of Medicine of the City, University of
    NewYork, New York City has been annexed and reference has been made to the underlined portion under the heading
    “INTRAOCULAR LENS/SPECTACLE COMBINATIONS” which is reproduced as under:-



    “Most patients with intraocular lenses do require additional spectacle correction (27,28) and the net image magnification is the product of that induced by the intraocular lens and that of the spectacle. Since aniseikonia refers to a difference in the size of the retinal images of the two eyes. It is also necessary to consider what image magnification or minification is induced by the spectacle correction of the phakie eye….” 

       



    24.
    It will be relevant to bear in mind that after getting the right eye operated from Opposite Party No.2 Dr. Rohit Grover, the complainant Mr. Yoginder Beri consulted other eye surgeons at different hospitals mentioned above at Chandigarh and also consulted Dr. Dada at
    AIIMS., New Delhi and also had laser treatment and other tests which facts were not in the knowledge of Dr. Rohit Grover and the consultations were not made with the consent of the Opposite Party No.2. In other words, the complainant himself decided to have second and subsequent opinion and treatment after his operation aforesaid conducted by Dr. Rohit Grover. It is also significant to note that apart from the statement of the complainant.

         

  • M.P.
    BALAMANI
    v. M.A.R.K.M.H. & RESEARCH CENTRE


    (2001) CPJ 483

     

    KARNATAKA STATE CONSUMER

    DISPUTES REDRESSAL COMMISSION,

    BANGALORE


     

    Consumer Protection Act, 1986 – Section 14(1)(d) – Medical Negligence
    – Error of Judgement in Diagnosis – Compensation – Histopathology Cytology Report issued
    by opposite party on the biopsy specimen – Report
    diagnosed the case as – sclerosing adenosis, post
    inflamatory state and terminal ductal hyperpiasia -
    Examination of same slide and block about 40 days after
    disclosed that, – patient having an advanced breast
    cancer – Patient suffering from cancer confirmed -
    Error of judgment on part of opposite party established -
    Contention, wrong diagnosis recorded in the Histopatholoy
    Report resulted in avoidable sufferings and ultimate death
    of patient – Contention not acceptable – Error of
    judgment not contributed to the type of suffering which the
    patient had to undergo – Ailment if would have been
    detected 45 days earlier, position would have been no
    different – Opposite party absolved from the stigma of
    negligence – Complainant failed to establish deficiency in
    service, not entitled to any compensation.

     

    Held : Looking at the tenor of the complaint, the
    prime target is opposite party-4 Dr. Vasudeva Rao,
    Consultant Pathologist of the Bangalore Hospital, who had
    issued a Histopathology & Cytology Report on the biopsy
    specimen of Balamani sent to him from opposite party-1
    hospital. The report (Ex.C4) diagnosed the case as “elerosing
    adenosis, post inflammatory state and terminal
    ductal hyperplasia”. The examination of the same slide and
    block at Kidwai Memorial Institute of Oncology about 40 days
    later however disclosed that “the patient was having an
    advanced breast cancer”. According to the complainants,
    the wrong diagnosis recorded in the Histopathology Report by
    opposite party-4 resulted in the avoidable suffering and
    ultimate death of the patient. (Para 18)

     

    Held further : It is borne out from records that
    while Ex.C4 was issued on 20/10/1994, Ex. C11 was issued by
    Kidwai Memorial Institute on 3.12.1994. The crucial point
    for consideration in this backdrop is whether the type of
    cancer as revealed on 3.12.1994 could have been halted or
    eliminated had it been correctly diagnosed on 20.10.1994
    i.e., about 45 days earlier. Dr. Lakshmaiah has spoken on this aspect very clearly
    in the following words:

     

    ” In
    breast cancer 30 to 40 days would not make any difference as
    regards the stage “.

     

    With regard to the stage in the development of breast cancer, C.w. 2 has in her chief-examination clarified as follows:

     

    ” As per Ex.C11, the grade of the cancer of the breast relating to the slide in question is Grade-III. Grade III suggests that the cancer of the breast was in any aggressive form “.

       

    This form of aggressive cancer did not respond to chemotherapy. Hence if it had been detected about 45 days earlier, the position would have been no different as deposed by C.W.3. This leads us to the inevitable conclusion that even if opposite party-4 had come out with the correct diagnosis, there would have been no salvation for the patient which is most unfortunate. But on that account the complainants have no case to allege that but for the negligence of opposite party-4 and by extension opposite party-3 the patient would have been cured and she would have been alive today. The evidence adduced by C.W.2 and C.W.3 would indicate srongly that an error of judgment in opposite party-4 had not contributed to the type of suffering which the patient had to undergo and this factory contributes largely to absolve opposite party-4 of the stigma of negligence attributed to him by the complainants. Considering the totality of circumstances brought into being on reocrd, we have no hesitation to say that opposite party-4 and by vicarious extention opposite party-3 cannot be construed as negligent in diagnosing the condition of complainant No.1. Rather, we are inclined to believe that opposite party No.4 committed an error of judgment while issuing the histopathology report with regard to the existing condition of the patient which cannot be termed as deficiency of service. (Para 35, 36 & 37)

     

    Held further: If that be so, it has to be held in conclusion that the complainants have failed to establish any deficiency of service within the meaning of that expression under the Consumer Protection Act, against opposite parties by acceptable evidence. It is true, we have found an error of judgment in opposite party-4, but such an error cannot, in the context of the surrounding circumstances of the case, be construed as negligence. (Para 41)

     

    Result: Complaint dismissed.

     

    ORDER

     

    Mr. Abdul Perwad, Member – This is a complaint filed under Section 12 r/w Section 17 of the C.P. Act, 1986 alleging deficiency of service on the part of four opposite parties including 2 hospitals. The facts of the case as narrated in the complaint are as follows:

     

    Mrs. Balamani, aged about 31 years, with the second complainant got herself admitted opposite party-1 hospital on 17.10.1994 on account of a pain in the left breast while feeding her 3 months’ old child. There was a lump in her breast which was examined by Dr. Srikant opposite party-2 and diagnosed as granulome and hence a biopsy was conducted and the specimen was sent to opposite party-3 Bangalore Hospital for pathological examination. Dr. Vasudeva Rao (opposite party-4), Pathologist opposite party-3 hospital diagnosed the ailment as Sclerosing Adenosis and a report to that effect was issued. Opposite party-2, on the basis of the report, diagnosed that complainant-1 was not suffering from cancer of the breast and hence discharged her on 20.10.1994, assuring that it was an infection.Certain drugs were also prescribed at the time of discharge which were however asked to be discontinued about 20 days later.

     

    2. It is the case of the complainants that the patient did not register any improvements; on the other hand her condition worsened. She developed swelling of the left hand and lumps developed in the lymph and neck. Hence, on advise of well-wishers, she approached Kidwai Memorial Institute of Oncology. The slide and paraffin block were obtained from opposite party- 3 hospital and submitted for examination. Kidwai Memorial Institute, after due examination, diagnosed the ailment as “Invasive ductal carcinoma, GR-III of the breast”. It is alleged that when complainant-1 approached opposite party-1 in the month of October, 1994 she had developed cancer of the breast and by 3.12.1994, the disease had spread to the lymph nodes and the neck region. According to the complainants this could have been prevented but for the wrong diagnosis of opposite party-3 and opposite party-4.

      

    3. At the Kidwai Memorial Institute complainant-1 was treated with chemotherapy by Dr. Lakshmaiah, but no surgery was undertaken since the disease had spread intensively. It is the case of the complainants that such a spreading could have been prevented, had it been properly diagnosed by opposite party-4. In fact, it would have been possible to remove the cancerous growth from the breast before it could spread to other areas and the patient would have recovered completely. It was the type of ailment which a beginner in the field of pathology would detect, but on account of the negligence of an exerienced opposite party-4, and the staff of opposite party-3, complainant -1 came to be the victim of a dreaded, incurable disease, opposite party-1 and opposite party-2 are also privy to such a happening, since it is they who directed the complainants to opposite parties-3 and 4 to get a pathology report. They had a duty to cross-check the diagnosis of opposite parties-3 and 4 which they have failed to do. Hence it is alleged that opposite parties 1 to 4 are all responsible for the gruesome ailment to which complainant-1 was subjected to.

     

    4. It is further alleged that apart from a sum of Rs. 60,000/- already spent on treatment, much more will have to be spent on complainant-1consistent with the sinister nature of the ailment which called for expensive treatment. The financial burden on complainant-2 had proved deplorable for the further reason that he was at that point of time unemployed. The children, one of whom was hardly 10 months’ old, was to be looked after by compnt-2 since compnt-1 was not able to do it. They were totally deprived of the care of the mother which in itself was a cause of hardship and trauma resulting in acute mental distress and anxiety to all concerned. Since such an avoidable misery was the direct outcome of the negligence of the opposite parties, they are liable to pay appropriate damages to the complainants, which the opposite parties have declined when a lega, notice was issued to them. The complainants, therefore, prayed that the opposite parties be directed to pay a sum of Rs.10 lakhs by way of damages, together with interest @ 18% p.a. from the date of complaint till payment.

     

    5. In the objection filed, opposite parties-3 and 4 refused these allegations strongly on the following lines:

      

    (1) When complaint-1 reported at the Bangalore Hospital, her last child was 10 months old. Complainant -1 had seen lump in her breast (L) when the child was 3 months old and at that point of time itself she had pain while feeding the child. Nevertheless, she chose to report at opposite party-3 hospital after 7 months, by which time the process of advancement of the damage to a point of no return had set in. This is a costly negligence for which complainants alone are responsible.

     

    (2) The reference made by opposite party-1 hospital to opposite party-3 hospital to conduct a histopathological examination was in a small piece of paper, with virtually no information about the clinical condition of the patient. The referring doctor had suggested cancer of the breast and infective granuloma as the two alternative clinical diagnosis of the patient. Medical jurisprudence will testify that in such a situation the pathologist will generally lean on a common cause while making a diagnosis in a difficult situation. Histopathological examination is a long drawn  process which takes about 2-3 days before a report is drawn up. In the instant case all possible precautions have been taken to arrive at a correct conclusion.

     

    (3) The surgeon or the doctor who attends to the patient is responsible to corroborate the clinical picture and the histopathological examination report. It there is variance, he should obtain a second opinion or reexamine the patient to eliminate possibility of malignancy involving any destructive procedure.

     

    (4) In the instant case diagnosis was made by Kidwai Memorial Institute of Oncology. If only review of the diagnosis was sought, opposite parties-3 and 4 also could have diagnosed the disease as cancer.

      

    (5) There was an interregnum of only 40 days between the histopathology by opposite parties-3 and 4 and the final diagnosis at Kidwai. At that time cancer had already spread to different parts of the body of the patient. The gap of 40 days makes absolutely no difference as the disease process had reached the status of micro-metastasis when the patient first noticed the lump and pain in her breast 7 months earlier.

     

    (6) The pathological report issued by opposite parties-3 and 4 clearly indicates that malignancy cannot be ruled out and the patient needs to be followed up in that direction. It is difficult even for an experienced pathologist to distinguish a malignancy from an acute inflamatory lesion.

     

    (7) The work of a pathologist consists of examining the tissue and have a microscopic view to identify the disease process. The opinion of the pathologist is neither final nor conclusive since it is based on either a tissue or a slide and he has no total picture of the clinical condition of the patient. Despite these constraints, opposite parties 3 and 4 have opined that the patient had a pre-malignancy condition which should be treated to cure. Hence no negligence can be attributed to opposite parties 3 and 4.

     

    (8) From the very nature of the complexity of this case which is bound to involve complicated medical issues calling for expert evidence, the issues involved are to be sorted out in a Civil Court and not in a summary proceedings before this Commission.

     

     6. Opposite parties 1 and 2 took up the following defence vis-à-vis the allegations levelled against them:

     

    (a)  The patient was discharged from opposite party-1 hospital and was further treated as an out-patient for Sclorising Adenosis which is based on the pathology report. According to the said report it was not a case of the cancer of the breast but Sclorising Adenosis and hence malignancy was ruled out. Hence the patient was discharged on 20.10.1994, giving her certain antibiotics.

     

    (b)  On 25.10.1994 when the patient came to remove the sutures, a swelling in her left arm was noticed and hence Dr. Kamath, a physician of opposite party-1 hospital was consulted. He advised higher antibiotics in view of the pathological report of opposite party 4 and the patient was advised to come back again after a week for follow-up.

        

    When she came again as advised no increase in swelling was noticed and hence the antibiotics were discontinued and she was asked to come back again after a week. She however failed to report thereafter.

     

    (c)  There is no deficiency of service on the part of opposite parties 1 and 2 whatsoever and hence the contention of the complainants that opposite parties 1 and 2 whatsoever and hence the contention of the complainants that opposite parties 1 and 2 are also jointly and severally responsible with opposite parties 3 and 4 for whatever happened to complainant- 1 is not based on facts but a motivated allegation.

      

    (d)  Opposite party-1 hospital is run by the Trust created in the memory of Ravi Kirloskar where only nominal charges are levied for the services rendered. Hence opposite party-1 hospital falls outside the purview of the expression ‘service’ as defined in Section2(1)(d) of the C.P. Act, 1986 and hence the complaint is not maintainable against opposite party-1.

     

    (e) The case involves complicated recording of evidence by experts and other elaborate process and as such it is not liable to be adjudicated upon in summary proceedings before this Commission. The complainants have to seek their remedy in a Civil Court for the redressal of their grievances.    

      

    7. For these and other reasons set out in the statement of objections, filed, opposite parties 1 and 2 prayed that the complaint be dismissed as shorn of merits.

     

    8. Opposite parties filed their version. Opposite parties 1 and 2 filed their affidavit evidence with certain documents. Exs.C1 to C4 and C6 to C105 were marked for the complainants with consent. Exs.R1 to R10 were marked with consent for opposite parties 1 and 2, while Exs.R11 to R20 were marked for opposite parties 3 and 4, also with consent.

     

    9. Complainant 2 filed his affidavit (C1 had died in the meantime and as such her name was deleted from the complaint by an order of this Commission). In support of his case Complainant 2 has examined himself as C.W.1. Two witnesses, viz., Dr. Teena Ramarao and Dr. K.C. Lakshmaiah were examined as C.W.2 and C.W.3 respectively. On behalf of opposite parties Dr. Srikanth Jagirdar, Opposite party 2 is examined as R.W.1 and Dr. P. Vasudeva Rao, opposite party 4 is examined as R.W. 2.

     

    10. We have heard the arguments of Mr. T.R. Raghupati, learned Counsel for the complainants, Mr. K.M. Basavaraj, learned Counsels, for opposite parties 1 and 2 and Mr. Manojkumar for opposite parties 3 and 4.

      

    11. In the context of the various contentions raised and the issues highlighted by the learned Counsels, the following points arise for consideration :

      

    (1) Whether the complainants had to seek their remedy in a Civil Court in view of the complex nature of the case as contended by the opposite parties?

     

    (2) Whether the complainants have established deficiency of service on the part of opposite parties or any among them within the meaning of that expression under the C.P. Act by acceptable evidence?

      

    (3) Whether the complainants are entitled to any compensation?

     

    (4) What order ?

     

    12. Point No.1: In a case of alleged medical negligence necessary facts are to be established by evidence, which may mostly involve examination of witnesses and their cross-examination. If every case involving examination-in-chief and cross-examinations are to be construed as involving complicated medical issues, and if on account of such presumption every such case is to be referred to a Civil Court, it would virtually amount to taking away medical negligence cases from the purview of the C.P. Act. That was evidently not the view of the Hon’ble Supreme Court while taking a decision in Indian Medical Association v. V.P. Shantha & Ors. A parameter has nowhere been laid down for the purpose of deciding precisely when a case involving alleged medical negligence is to be referred to a Civil Court and when it can be adjudicated upon by the Consumer Forums. In the first instance, what are the issues which cannot be decided upon in a summary proceedings are not clearly defined anywhere, nor any rule of the thumb is indicated in any judgment pronounced till now. That being the case, it is necessarily within the realm of the Consumer Forums or the Commission, as the case may be, to decide whether it could rise up to the task or the issues involved would be too complicated to be decided in a so-called summary proceedings and hence to be safely referred to a Civil Court. In the instant case, having regard to the type of allegations made and the issues surrounding such allegations, we had no occasion to believe that it is beyond this Commission to adjudicate upon this case. Hence, apropos the contention of the opposite parties that the complainants have to seek their remedy in a Civil Court, we hold that this Commission is well equipped to deal with this case. In the result, we answer point No.1 in the negative.

       

    13. Point No. 2: Under this point it will have to be seen whether the deficiency attributed by the complainants to the opposite parties or for that matter to any of the opposite parties can be said to have been established by acceptable evidence.

      

    14. It is not in dispute that Balamani w/o M.Lakshminarasimhaiah was admitted to opposite party 1 hospital on 17.10.1994. It is also not disputed that a biopsy of her left breast was conducted and the specimen was sent to opposite party 3 hospital for pathological examination. It is also not disputed that a histopathological report on the basis of the examination conducted was issued. It is also not disputed that Balamani was discharged from opposite party 1 hospital on 20.10.1994. The dispute however centres round the alleged negligence on the part of the opposite parties in diagnosing and treating Balamani who had noticed a lump in her breast which pained while she fed her child.

       

    15. Mr. T.R. Raghupati, learned Counsel for the complainants, during the course of taking us through the facts of the case submitted that it was opposite party 3’s report which had laid the foundation for the unfortunate incident leading to the untimely death of Balamani. The learned Counsel pointed out that despite no denial in the reply notice, opposite party 4 had denied in his cross-examination that he had signed the Histopathology and Cytology Report (Ex.C4) of the Bangalore Hospital. It was pointed out that in his affidavit evidence opposite party 4 had disowned the report contending that it was signed by Dr. Jinka Subramanyam. The learned Counsel pointed out that it is only an after-thought to avoid responsibility arising out of a wrong diagnosis, by which the changes of saving a life was lost. The learned Counsel wondered what was it that the Hospital Authorities did when they found out that their Chief Pathologist had not signed his own report. Dr. Teena Rama Rao, (C.W.2) has during her cross-examination stated very clearly that the slide examined by opposite party 4 clearly showed that cancer was aggressive (Grade-III). The same opinion was expressed by C.W. 3, Dr. Lakshmaiah that the patient had advanced cancer, but the report of the Bangalore Hospital does not suggest any cancer in the patient. According to C.W. 3, the ailment could have manifested about 5 years earlier. The learned Counsel submitted that despite such strong indications in the slide, opposite party 4 had given a report of no incidence of cancer which can only be born out of indifference in discharging his duties as a pathologist. The learned Counsel also submitted that having known that he had erred beyond redemption, opposite party 4 has been trying to take shelter behind the native contention that he was not the author of the report since, as he put it during his evidence, he does not allow anybody to sign for him. The learned Counsel pointed out that the role of opposite party 2 does not attract as much stigma since he had relied faithfully on the report of opposite party 4 yet he cannot be in the clear entirely since he had failed to double-check what opposite party 4 had to say, particularly when the patient had familiar symptoms.

      

    16. Mr. Manojkumar, learned Counsel for opposite parties 3 and 4 on the other hand argued that there is no merit in the contentions raised by the learned Counsel for the complainants in as much as his whole story falls to the ground when viewed from the proper perspective. In the first instance, the learned Counsel submitted, it is the bounden duty of the referring ddoctor to provide the history of the patient with all necessary clinical details to the pathologist which has not been done in this casewith a result, a report had to be produced on the basis of just a slide and a block. It was pointed out that opposite party 4 in his affidavit-evidence has clearly stated that Dr. Jinka Subramaniam had signed the report and not him, but the complainants had failed to implead Dr. Jinka Subramaniam for reasons best known to them. Moreover, it is not correct to say that Ex.C4 is bereft of any reference to cancer. In fact, the report very clearly indicated that the symptoms noticed may be a precursor to lobularcarcinoma which is enough warning on an impending cancer which was not well taken either by opposite parties-1 and 2 or by complainants themselves. To
    substanciate his contention that the patient had no cancer
    at the time when opposite party No.4 conducted the
    pathological examination, the learned Counsel invited our
    attention to the deposititon of Dr. Teena Rama Rao who
    stated that the cells had proliferted in the biopsy specimen
    in a benign way which only means that no malignancy was
    visible at that point of time. It is contended that opposite
    parties 3 and 4 have dutifully and painstakingly brought out
    a report indicating clearly the chances of cancer  setting in if effective steps are not taken, notwithstanding
    the constraints of not having the benefit of the patient’s
    history and hence no negligence could be attributed to them
    for whatever reason.

       

    (a) 
    Mr. K.M. Basawaraj, learned Counsel for opposite
    parties-1 and 2 submitted in his turn that Balamani came to
    opposite party-1 hospital with a lump and prickly sensation
    in her left breast for which a biopsy was done on 18.10.1994
    and the specimen was sent to opposite party-3 hospital for a
    histopathological report. When the report was received, it
    revealed that the lump in the breast was a benign growth and
    hence the patient was given necessary medication and was
    advised to come for follow-up. 
    The learned Counsel contended that this was the
    normal procedure followed in a case of this nature. Opposite
    parties-1 and 2 had adopted the time honour procedure of
    depending on the histopathological report for which opposite
    parties-1 and 2 cannot be faulted. The learned Counsel
    invited our attention to the deposition of Dr. Lakshmaiah (C.W.
    3) that the opinion of the Pathologist is conclusive. The
    learned Counsel while taking us through the contents of
    Ex.C4 emphasised that for the type of observations made in
    the report, opposite party Nos. 1 and 2 has no option
    whatsoever to go through any line of treatment other than
    what was actually given to the patient. It was submitted
    that the patient was treated with the best possible case in
    opposite party-1 hospital and hence there could be no iota
    of blemish or negligence attributable to it for any reason
    whatsoever. In support of his contention the learned Counsel
    relied on the following case laws while summing upon his
    argument on the above lines.

     

       (1) 
    AIR 1996 SC 2111

     

       (2) 
    AII Eng. Reporter 1957 (2) P. 118

     

       (3) 
    AIR 1969 SC 128 (para 11)

      

      
    (4) 
    AIR
    1998 SC 1801

      


    17.
    We have given due consideration to the detailed
    submissions made on either side. At the very outset,  
    it is necessary to have a clear perspective with
    regard to the approach to be adopted in a case of this
    nature. It has to be stated at this juncture itself that the
    standard of care expected of a medical man is neither too
    high nor too low. What the law expects from him is neither a
    miracle nor achieving the impossible but exercise of a duty
    of care expected of a reasonably skilled practitioner who
    performed the functions he is called upon to do diligently
    and conscientiously. The path of a medical man is not strewn
    with roses all the way; it is thorny most of the time,
    albeit what a patient expects from him, but law looks at
    neither of these aspects, but evaluates his performance on
    the basis of certain parameters. The Hon’ble Supreme Court
    in Dr. Laxman Balkishan Joshi v. Dr. Trinbak Bapu Godbole,
    reported in AIR 1969 SC 128 (quoted in D. P. Bhandhari v.
    Sir Ganga Ram Hospital, reported in II (1991) CPJ 409), has
    laid down the following criteria to make such evaluation:

      

       (i)              
     
    A duty of care in deciding whether to undertake the
    case,

       (ii)               
    A duty of care in deciding what treatment to give,
    and

       (iii)              
    A duty of care in the administration of that
    treatment.

       

    A
    breach of any of these duties gives a right of action to a
    patient for negligence. These tests presuppose that a
    medical practitioner must bring to his task a reasonable
    degree of knowledge and skill and perform his duties with a
    reasonable degree of care.  
    The super-speciality atmosphere prevailing in
    high-tech corporate hospitals was not susceptible of adding
    much to these basic concepts of duties required of a medical
    practitioner, except perhaps broadening the sphere of
    treatment to some extent. Even today, the test for
    establishing negligence in diagnosis or treatment on the
    part of the doctor is whether he/she has been proved to be
    guilty of such failure as no doctor of ordinary skill could
    be guilty of when acting with reasonable care.

       


    18.
    It
    is necessary to approach the instant case bearing these
    guidelines in mind in order to arrive at a conclusion
    whether the negligence attributed to the opposite parties or
    for that matter to different opposite parties individually
    can be said to have been established by acceptable evidence. 
    Looking at the tenor of the complaint, the prime
    target is opposite party-4 Dr. Vasudeva Rao, Consultant
    Pathologist of the Bangalore Hospital, who had issued a
    Histopathology & Cytology Report on the biopsy specimen
    of Balamani sent to him from opposite party-1 hospital. The
    report (Ex. C4) diagnosed the case as – sclerosing adenosis,
    post inflammatory state and terminal ductal hyperplasia.
    The examination of the same slide and block at Kidwai
    Memorial Institute of Oncology about 40 days later however
    disclosed that “the patient was having an advanced
    breast cancer.” According to the complainants, the wrong
    diagnosis recorded in the Histopathology Report by opposite
    party-4 resulted in the avoidable suffering and ultimate
    death of the patient. Para 8 of the complaint describes this
    aspect in the following words:

      

    “It
    is submitted that if the ailment had been diagnosed properly
    at the earliest stage it would have been possible to remove
    the cancerous growth in the left breast. It would have prevented further spreading of the
    disease. Complainant No.1 would have fully recovered from
    the ailment. Solely
    on account of the wrong diagnosis made by the 3rd
    and 4th respondents, the complainant No.1 has
    suffered immeasurably and the disease has now become
    incurable. Even
    a Pathologist with little experience would have been able to
    diagnose the ailment correctly.
    It is abvious that the wrong diagnose is the result
    of sheer negligence on the part of the 4th
    respondent and the staff of the third respondent
    hospital”.

      


    19.
    It is this specific allegation which calls for
    examination on the basis of evidence, both documentary and
    oral, adduced in this case. 
    Opposite party-4 has taken the contention that Ex.C4
    has not been signed by him, but it is signed by Dr. Jinka
    Subramaniam who was also a Pathology Consultant in opposite
    party-3 hospital. During the course of his cross-examination
    by Mr. Raghupathi,  learned
    Counsel, opposite party-4 has spoken as follows:

      

    “However in my affidavit filed on 15.5.1999, I have stated that I have not given the report and
    that I have not signed that report. In Ex. C4 the signature
    above my name is not my signature”.

      

    In continuation, opposite party-4 has also stated as
    follows:

      

    “I did not normally allow anybody to sign for
    me”.

     

    However, he makes the following admission:

     

    “I have not stated that I have not given the report
    at Ex.C4, either in the reply given to the legal notice or
    in the version filed by me or in the first affidavit which I
    filed before this Commission”.

        

    20. A reading of these
    depositions in conjunction would hardly fail to reveal the
    fact that opposite party-4 who had missed out 
    on hiding behind the shadow of his colleague in the
    first instance had come wise later to the situation where
    his colleague had signed for him. 
    He admits that Dr. Jinka Subramanyam is “shown to
    have signed for me”. In Ex. C4 the name of opposite party-4 is typed out
    at the bottom and Dr. Jinka Subramanyam has signed it “for” Dr. T. Vasudeva
    Rao, M.D. Opposite party-4 has in
    his deposition stated that he did not “nornally” allow
    anybody to sign for him, which means that exceptions are
    made. In the combined version filed by him and opposite
    party-3, after explaining that opposite party-3 hospital had
    two distinguished Pathologists, namely Dr. T. Vasudeva Rao
    and Dr. Jinka Subramanyam, it is stated as follows:

     

    “The Pathologist of Bangalore Hospital who examined
    the tissue did make every effort to reach a conclusion”.

       

    21. If at all the test was conducted by Dr. Jinka Subramanyam, this was the occasion to mention it. However the identity is not divulged here since, apparently, opposite parties-3 and 4 were testing the water as to the course the case would take in due course. At a later stage when it was evident that things would zero in on opposite party-4 in particular, the aforementioned contention was raised in the affidavit filed by opposite party-4 on 15.5.1999 which was not taken in the first affidavit he filed on 1.7.1997. Such an intention is entirely evident from the material on record. Even opposite party No. 2 has stated in his evidence. “However my information is that Dr. Vasudeva Rao did the Pathology test”. Hence, taking into account the totality of circumstances, we have no hesitation to hold that opposite party No.4 is the author of Ex.C4, and Dr. Jinka Subramanyam has signed it on behalf of opposite party-4 due to unexplained exigencies.

      

    22. If that be so, what is to be seen next is whether Ex.C4 is a precurser to the course of events that took place later thereby, according to the complainants, the patient had to undergo avoidable pain and suffering which ultimately lead to her untimely demise. In order to get an insight into the import of the Report (Ex.C4), particularly when its contents have been the subject-matter of not only diverse pleadings but also expert opinion of varying shades, it would be in the fitness of things to reproduce it. The body of the report reads as follows:

      

    “Cross Examination: Two firm to soft grey nodular pieces of tissue measuring 1×0.5 x 0.5 cms and 0.5 x 0.5 cm are received. They are sectioned and processed in toto.

     

    Microscopic Examination : Aggregates of compressed ducts with surrounding fibrous tissue are seen. Inflammatory cells predominate around them and some dilated ducts. The scarring gives the appearance of a sclerosing adenoma. A terminal duct hyperplasia is seen. It may be a precursor of labular carcinoma. Follow up of this case is suggested.

      

    Microscopic Diagnosis :

    (1) Sclerosing adenosis, post inflammatory state.

    (2) Terminal ductal hyperplasia (See microscopy above)”

      

    23. The report also indicates that the preopposite party diagnosis of the referring doctor, namely opposite party-2 was “Ca Breast”, “Chronic infective granuloma”. According to opposite party-4 these are two alternative diagnosis on the basis of which he was called upon to give a histopathology report of the specimen sent to him. He was contended that even though the referring doctor is supposed to give him the background material of the case, opposite party No.2 has not given him any details, with a result, he was contrained to formulate his report on the basis of what he was in the slide and block sent to him. He has detailed the constraint in which he had to issue Ex.C4 in para 3 (ii) of the joint-version filed by him and opposite party-3, which reads as follows:

       

    (ii) The reference made to the Bangalore Hospital from Ravi Kirloskar Hospital, was to conduct a histopathological examination, was in a small piece of paper with virtually no information about the clinical condition of the patient. The referring doctor has put both the cancer of the breast and the infective granuloma as the two alternative clinical diagnosis of the patient. As the first complainant mother of a small child and as she was breast feeding the child the commonest cause for such pain in the breast was the infection of the breast. This aspect is made clear as one of the diagnosis by the referring Surgeon. The medical jurisprudence would testify that in such a situation the pathologist would generally lean on a common cause while making a diagnosis in a difficult situation. If there is any error of judgment, it is both natural and permitted by the referring Surgeon that the clinical picture and clinical diagnosis strongly suggested the presence of infective process in the breast”.

      

    24. On this aspect opposite party-2, Dr. Srikanth Jagirdar has not come out with any explanation in his affidavit. He has only said that “the disease was diagnosed as “Ca Breast (L)” “chronic infective granuloma” and hence “the tissue was sent to the 3rd respondent hospital for histopathological examination on the same day”. He has nowhere come out with a contention that it was not incumbent on him to inform the pathologist about the clinical condition of the patient. It is seen that Ex. R19 which is the requisition slip sent by opposite party2 to opposite party-3 hospital requesting for a histopathology report does not contain any information regarding the clinical condition of the patient. It is therefore, evident that opposite party-4 had no feed back from the referring doctor with regard to the case history of the patient or her clinical condition at the time when he received the requisiton from opposite party No.1 hospital, except the pre-OP diagnosis of opposite party-2 that the patient had either cancer of the breast or chronic infective granuloma.

      

    25. “Granuloma” according to Oxford Concise Medical Dictionary is a mass of granulation tissue produced in response to chronic infection, inflammation, a foreign body or to unknown causes”. In other words, it is not a malignant mass. Hence opposite party-4 had to keep in view two options while examining the slide and the block sent to him. According to him histopathological examination is a long drawn process which takes atleast 2-3 days before a report is drawn up. The work of a pathologist consists of examining the tissue and to have a microscopic view to tell the disease process that is reflecting in a patient. His opinion is neither final nor conclusive as he is totally handicapped regarding the total picture of the patient as he is given either a tissue or a slide to work on and nothing else. In the instant case, according to him even the referring doctor was not helpful in providing necessary clinical inputs of the patient, with a result, his task was made extremely difficult. Cancer is a concealed disease which in many cases is not apparent to the naked eye. Even the attending doctor or surgeon infers on the disease and its stage preliminarily from the oral complaints of the patient and from his examination and lab reports. In such circumstances, it is stated, the tissue and the slide alone cannot give a full picture to make a total or final diagnosis. Hence it is the case of opposite party-4 that there is enough scope for an error of judgment.

      

    26. What might be an error of judgment, if at all, for opposite party-4 is negligence par excellence to the complainants. In para 6 of the complaint the following specific allegation has been made:

      

    “After examination of the very same slides and paraffin blocks by the Kidwai Memorial Institute of Anchology the ailment was diagnosed as Invasive Ductal Carcinoma GR III of the breast. When complainants had approached the first respondent in the month of October, 1994 itself she had developed cancer of the breast. By 3.12.1994, the disease had spread further to the lymph nodes and neck region. This resulted solely on account of wrong diagnosis made by the respondents 3 and 4”.

      

    27. Opposite parties-3 and 4 have strongly reputed this allegation on the basis of the very Ex.C4 on which the complainants have relied upon to make the type of allegations referred to above. According to opposite party-4 he has not ruled out cancer in his report entirely. Ex.C4, clearly indicates that the features seen in his microscopic examination “may be a precursor of lobular carcinoma”, which means that the symptoms of impending cancer was evident in the tissue examined. In view of such possibility it is stated, he had suggested follow up of the case which in itself is ample testimony that he had diagnosed possible occurrence of cancer in the patient, but at the moment of examination what was seen was Sclerosing adenosis in post inflammatory state and terminal ductal hyperplasia.

      

    28. Dr. Teena Rama Rao, Asst. Professor of Pathology (C.W. 2) who conducted the examination of the slide and the paraffin block at the Kidwai Memorial Institute and came to the conclusion that the patient was suffering from “Invasive ductal carcinoma GR-III breast intraduct comedocarcinoma present” has, in her evidence spoken abouty Ex.C4 in the following terms:

      

    It would mean that the cells of the breast have proliferated in number in a benign form. We call it as benign proliferative breast disease.

     

    It is also reflected therein that the same could be a pre-cancerous stage”.

     

    This evidence corroborates the contention of opposite party-4 that his report is not benefit of any reference to cancer but an observation has indeed been made by him warning the onset of cancer in the patient for which he has also suggested follow-up. C.W.2 however does not believe that opposite party-4 had any constraints for want of clinical inputs of the patient from opposite party-1 hospital since, in her cross-examination she has stated that “in her opinion Ex.R-19 itself contains adequate clinical history”. As far as the observation in Ex.C4 (which contradicted Ex. C11A) is concerned C.W.2 observed, “I would only say it is the opinion of other pathologist”.

     

    29. The fact that the patient was suffering from cancer and not from benign proliferative breast disease as diagnosed by opposite party No.4 has been confirmed in his chief-examination by Dr. K.C. Lakshmaiah, Asst. Professor of Oncology in Kidwai Memorial Institute (C.W. 3) in the following words:

      

    “The patient was having an advanced breast cancer. In medical terminology it was stage 4 form”.

      

    This evidence corroborates the diagnosis at Ex.C11A (except for the stage of the disease which is mentioned as Grade III in Ex. C11A) which goes to establish that the patient was indeed suffering from cancer of the left breast. With regard to the question as to the probable period during which the patient could be said to be suffering from the said ailment, C.W. 3 has spoken in the course of his cross-examination as follows:

      

    “Having regard to the stage of cancer as on 6.12.1994, that is the day on which the patient came to our hospital, it is my view that the lady must have started development of malignant-clone substances more than five years ago”.

      

    30. This piece of important evidence, coming as it does from a doctor under whose supervision the patient was administered chemotherapy and even salvage chemotherapy at a later stage proves conclusively that the patient was suffering from cancer of the left breast but opposite party-4 has not diagnosed it as cancer, but has concluded that it was a case of benign proliferative breast disease, which in his own words is described as “Sclerosing adenosis, post inflammatory state terminal ductal hyperplasia”. However it has to his credit that he has not entirely ruled out cancer, since he has expressed his apprehension that the condition revealed in histopathology is a precancerous stage for which he had suggested a follow up.

      

    31. These facts which have crystallised from the material placed on record would lead to an inevitable conclusion that there has been a slip on the part of opposite party-4 in coming to the right conclusion with regard to the nature of existing ailment in the patient as the biopsy specimen disclosed. In his own words, it may amount to an error of judgment but not a case of negligence as contended by the complainants. In para 3 (ii) of the joint-version, opposite party 3 has stated on behalf of opposite party-4 as follows:

      

    It is more than possible that the pathologist given the benefit of doubt in the first instance. But error in judgment would not be an act of negligence in medical parlance”.

      

    32. It is in the context of this submission that we need to recall the following words of Load Denning in Res. v.Minister of Health, (1954) 2 QB 66:

      

    “One final word. These two men have suffered such terrible consequences that there is a natural feeling that they should be compensated. But we should be doing a dis-service to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due case for the patient at every point, but we must not condemn as negligence that which is only a misadventure” (Emphasis supplied).

       

    33. When a similar issue involving error of judgment in Whitehouse v. Jordan, I (1981) All ER 267, came up in appeal before the House of Lords, a circumstantial variance in such error was emphasised. Lord Fraser pointed out thus:

       

    “The true position is that an error of judgment may, or may not, be negligence, it depends on the nature of the error. It it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made then it is not negligence”. (quoted in M/s. Spring Meadows Hospital v. Harjol Ahluwalia, reported in AIR 1998 Supreme Court 1801 ” para 9)

       

    34. Tested by the touch-stone of these observations, it has to be said that opposite party No.4 is guilty of an error of judgment in diagnosis which does not amount to negligence, particularly when he has not entirely ruled out cancer. The natural question that arises in the context of the apparent error of judgment by opposite party-4 is to what extent a correct diagnosis would have contributed to the welfare of the patient. We have already alluded to the deposition of Dr. Lakshmaiah who has stated very clearly that having regard to the stage of cancer as on 6.12.1994 the development of malignant clone substance must have started in the breast of the patient more than 5 years earlier. When the patient was examined in Kidwai Memorial Institute, she was suffering from Grade-III cancer, which was not susceptible of being removed even by surgery. It was a stage where the patient did not respond even to chemotherapy. If the patient was in such a condition, whether she could have been helped if opposite party-4 had correctly diagnosed her case about 45 days earlier is the million dollar question which needs to be answered before opposite party-4 is to be labelled as entirely responsible for the suffering and ultimate death of the patient.

      

    35. It is borne out from records that while Ex.C4 was issued on 20.10.1994, Ex.C11 was issued by Kidwai Memorial Institute on 3.12.1994. The crucial point for consideration in this backdrop is whether the type of cancer as revealed on 3.12.1994 could have been halted or eliminated had it been correctly diagnosed on 20.10.1994 i.e. about 45 days earlier. Dr. Lakshmaiah has spoken on this aspect very clearly in the following words:

      

    “In breast cancer 30 to 40 days would not make any difference as regards the stage”.

       

    36. With regard to the stage in the development of breast cancer, C.W. 2 has in her chief examination clarified as follows:

     

    “As per Ex.C11, the grade of the cancer of the breast relating to the slide in question is Grade-III. Grade III suggests that the cancer of the breast was in an aggressive form”.

         

    37. This form of aggressive cancer did not respond to chemotherapy. Hence if it had been detected about 45 days earlier, the position would have been no different as deposed by C.W. 3. This leads us to the inevitable conclusion that even if opposite party-4 had come out with the correct diagnosis, there would have been no salvation for the patient which is most unfortunate. But on that account the complainants have no case to allege that but for the negligence of opposite party-4 and by extension opposite party-3 the patient would have been cured and she would have been alive today. The evidence adduced by C.W.2 and C.W.3 would indicate strongly that an error of judgment in opposite party-4 had not contributed to the type of suffering which the patient had to undergo and this factor contributes largely to absolve opposite party-4 of the stigma of negligence attributed to him by the complainants. Considering the totality of circumstances brought into being on record, we have not hesitation to say that opposite party-4 and by vicarious extention opposite party-3 cannot be construed as negligent in diagnosing the condition of complainant No.1. Rather, we are inclined to believe that opposite party No.4 committed an error of judgment while issuing the histopathology report with regard to the existing condition of the patient which cannot be termed as deficiency of service.

      

    38. If that be so, what remains to be seen is whether opposite party-1 and opposite party No.2, particularly opposite party-2 is guilty of negligence as alleged by the complainants. The only allegation against them is that since Balamani was referred to opposite party-3 by opposite party-1 and opposite party-2 the latter are also jointly and severally liable to pay damages. In the course of his cross-examination complainant No. 2 has denied a suggestion that opposite party 2 was not guilty of negligence or deficiency in service. In the course of his affidavit evidence complainant No.2 has made the following averment:

      

    “It is also a case of negligence on the part of first respondent, as a doctor with bare minimum knowledge of medicine would have suspected cancer on noticing lumps in my wife’s left breast and the first and second respondents ought to have on their own ought to have advised us to take the block and slide to Kidwai Memorial Institute which is undoubtedly the best hospital for cancer in Bangalore”.

     

    39. We do not believe that failure to refer the patient to Kidwai Memorial Institute can be construed as negligence or for that matter an omission on the part of opposite party “1 and/or opposite party 2 since they have done what they thought best in the circumstances of the case. The complainants have infact not come out with an allegation that opposite party No.3 hospital is unequal to the task; rather, their allegation is that the task has been performed negligently. Hence we find that opposite party-1 or even opposite party-2 cannot be found fault with for referring the biopsy specimen to opposite party-3 hospital. We do not find any shortcoming or inadequacy in the manner or nature of the duties performed by them whatsoever.

      

    40. That leaves us with the other allegation that a doctor with a minimum knowledge of medicine ought to have suspected cancer on noticing lump in the breast of the patient. This allegation has no basis since one of the diagnosis of opposite party-2 as mentioned in Ex.R19 is “Ca Breast” which means cancer of the breast. The fact that Ex. R19 also suspects chronic infective granuloma does not take away the effect of the main diagnosis, namely cancer of the breast. Hence the type of allegation made by the complainants regarding diagnosis of the patient does not have much of a leg to sustain its weight. Even from the point of view of treatment given to the patient on receipt of Ex.C4, we have no reason to find fault with opposite party-1 or 2 since it has come in the evidence of C.W. 3 that if one gets a report like Ex.C4, the patient would be put on antibiotics and followed up. This is exactly what opposite parties-1 and 2 have done. It is not necessary for us to go into any other aspects of diagnosis or treatment of the patient in opposite party-1 hospital since the complainants themselves have not come out with any other allegation on other aspects. The material placed on record, it has to be stated, are not such as would point a finger of guilt on opposite party-2 in discharging his function at opposite party-1 hospital and hence we have no hesitation to hold that no stigma of deficiency of service can be attributed to either of them.

        

    41. It that be so, it has to be held in conclusion that the complainants, have failed to establish any deficiency of service within the meaning of that expression under the Consumer Protection Act, against opposite parties by acceptable evidence. It is true, we have found an error of judgment in opposite party-4 but such an error cannot, in the context of the surrounding circumstances of the case, be construed as negligence. We quote Lord Denning again to support this view.

      

    “You must not, therefore, find him negligent simply because something happens to go wrong; if, for instance, one of the risks inherent in an operation actually takes place or some complication ensures which lessens or takes away the benefits that were hoped for, or if in a matter of opinion he makes an error of judgment”.

       

    42. This is a warning which needs to be applied to every case involving medical negligence. In the instant case, by the standard set in the above words, we are not able to come to a conclusion that the opposite parties 1 to 4 are guilty of negligence in diagnosis and/or treating Balamani. In the result, we answer point No.2 in the negative.

      

    Point No.3

     

    43. In the view that we have taken under Point No.2, this point is also liable to be answered in the negative. Since no deficiency of service is attributable to the doctors (opposite party-2 and opposite party No.4) it has to be held that no vicarious liability could be attributed to either Ravi Kirloskar Memorial Hospital and Research Centre (opposite party-1) or The Bangalore Hospital (opposite party 3) or vice-versa.

      

    Point No. 4

       

    44. In the result we pass the following:

     

    ORDER

      

    The complaint is dismissed.

       


  • T.
    N. GHOSH v.DR. V. PAHWAL


    II (2001) CPJ 473

     

    WEST
    BENGAL STATE CONSUMER



    DISPUTES REDRESSAL COMMISSION,



    CALCUTTA


      

    Consumer Protection Act, 1986 – Section 15 -
    Appeal – Medical Negligence – Casual and
    careless examination by opposite party resulted
    in loss of vision – Complainant failed to
    prove the allegations of negligence on part of
    opposite party, not entitled to any relief.

     

    Result : Appeal dismissed.

     

    ORDER

     

    Mr. Justice S.C. Datta, President – This appeal is
    directed against order dated 6.8.1999 whereby
    the complaint was dismissed on contest. The
    Forum observed that the complainant has failed
    to establish any case of negligence on the part
    of the present respondent.

     

    Being aggrieved by the decision of the Forum the
    complainant has preferred this appeal on the
    ground that there has been gross miscarriage of
    justice. According to the appellant the
    negligence of the respondent is writ large on
    the face of the prescriptions of the respondent
    given by Dr. Pahwa himself. 
    His allegation is that Dr. Pahwa failed
    to diagnose the ailment of both of his eyes by
    all necessary examinations either by himself or
    by his assistants. 
    He specifically alleges that Dr. Pahwa
    failed to detect the glaucoma in his eyes though
    it had started developing in 1987. 
    Admittedly, the complainant was under the
    treatment of the opposite party for nearly 3
    years from 1991 to 1994. His first visit to Dr.
    Pahwa was on 18.6.1991 when the doctor detected
    some black spots in his eyes. The doctor could
    not detect glaucoma at that time nor could it be
    detected on subsequent visits to the doctor. On
    the advice of the doctor he visited him after 6
    to 8 months for review. Even during such visits glaucoma could
    not be detected. 
    All the time the doctor told him that he
    was afflicted with cataract and since the
    cataract did not mature the doctor did not
    advise for operation. The grievance of the
    complainant is mainly that the doctor being a
    busy practitioner could not devote sufficient
    time and give due care to examine him properly
    resulting in wrong diagnosis. His vision having
    visibly deteriorated, he approached Dr. Bakshi
    for examination of his eyes and treatment. Dr. Bakshi examined him on 29.6. 1994. At
    that time too Dr. Bakshi could not detect
    glaucoma in the yes of the complainant. Later on
    the glaucoma was detected and by this time his
    vision was greatly impaired. The complainant
    states that all the required tests could have
    been done on the first day of his visit to Dr.
    Pahwa and had these been done, the glaucoma
    would have been detected. The complainant was losing his eye sight
    very fast.
    Ultimately, his vision of right eye was totally
    impaired and he has become blind of one eye and
    for this unfortunate development he lays blame
    upon Dr. Pahwa. 
    His grievance is that the doctor made
    some cryptic notes in the prescription and
    released him after 4 or 5 minutes of casual
    examination. He alleges that proper care and
    attention was not given to him by the opposite
    party. It
    is not disputed that the eyes of the complainant
    were examined at intervals of 6 to 8 months and
    sometimes one year also and on each occasion the
    doctor advised him to come for review. According
    to the complainant this casual and careless
    examination by the opposite party resulted in
    the loss of vision. We noticed earlier that when
    he was examined for the first time by Dr. Bakshi,
    the latter did not notice glaucome on 
    his eyes. Later the glaucome was
    detected. In the meantime damage was done to his
    right eye and his vision was totally impaired.
    It appears that the Forum discussed the
    materials available with the record threadbare
    and came to the clear conclusion that the
    complainant has signally failed to prove the
    allegations of negligence on the part of the
    opposite party. We have considered every aspect
    of the case and materials on records and we
    cannot persade ourselves to hold otherwise. In
    our opinion, the case has been correctly decided
    and no interference is required. In that view of
    the matter, the appeal fails and is dismissed on
    contest.

     

    Appeal dismissed.

          



  • RANGANNAGARI YADAV REDDY
    v. DR.VIJAYA KUMARI


    II (2001) CPJ 391

        


    ANDHRA PRADESH STATE CONSUMER DISPUTES REDRESSAL 

    COMMISSION, HYDERABAD


        

    Consumer Protection Act, 1986 – Section 2(1) © Complaint – Medical Negligence – Premature attempt to separate placenta without even waiting for spontaneous delivery – Patient died – Complainant not turned up for cross examination, failed to substantiate the allegations leveled in the complaint – Absence of proof by themselves cannot be accepted – Complaint dismissed for want of evidence.

        

    Held: The complaint has not turned up for cross-examination in spite of several opportunities. The allegations in the complaint or in his affidavit are not tested in cross-examination. The opposite party is always ready to cross-examine the complainant. The complainant is neither available for cross examination by the opposite party nor his Counsel is available to cross-examine the witnesses on the side of the opposite parties. As such we are constrained to hold that the complainant has failed to substantiate the allegation leveled in his complaint. In the absence of proof by way of some evidence the averments of the complaint by themselves cannot be accepted.

        

    The complaint therefore, fails for want of evidence and it is accordingly dismissed. ( Paras 8 & 9)

      

    Mr. .Justice P. Ramakrishnam Raju, President – The complainant`s wife late
    Smt. Anuradha, who gave birth to three issues, was under antenatal care and treatment of the first opposite party during her third pregnancy. Till her death she was hale and healthy. Right from the time of her conception third time she was consulting the first opposite party. On completion of her full term pregnancy, she got her labour pains around 7.00 p.m. on 16.8.1992 and was taken to the first opposite party`s hospital. It was at 10.12 p.m. when she reached the hospital. Around 11.49 p.m. she delivered a male child and the delivery was normal. The first opposite party thereafter retired into her residence which is annexed to the clinic and returned at 00.10 hours. When she returned she appeared, drunk and was holding a liquor bottle in her hands and gulped the remaining liquor in the bottle after she entered the labour room. She threw the bottle on the floor and then enquired the lady nurse whether the patient delivered placenta. When the answer was in the negative the doctor remarked how long should I stay for this bitch. She thereafter waited for a couple of minutes and started making premature attempt to expel the placenta even before it was separated. In spite of the patient`s mother requesting her to wait for some time for spontaneous delivery of placenta she abused her mother and asked her to get out. The elder sister of the patient was still there. When she too requested the doctor to allow some time she too was asked to get out. Within few minutes they heard wild cry of the patient ” I am dying”. Immediately the mother and sister of the patient peeped into the labour room and observed that the doctor was trying to pull out the unseparated placenta manually. They also saw the patient lying unconscious. After a few minutes the opposite party came out of the room and asked them to arrange a jeep to take the patient immediately to Gandhi Hospital at
    Secunderabad. Co-brother of the complainant by name Narsimha Reddy a para medical assistant working in CDR Hospital, Hyderabad came and asked the opposite party as to what has happened. He checked the pulse and heart beat of the patient and expressed that she is no more. The opposite party pretended to examine the patient for a while and said Alas, she died. All this happened since the opposite party being intoxicant, feeling restless wanted to go to bed and, therefore, made premature attempt to separate placenta without even waiting even for half an hour for spontaneous delivery. This has resulted in irregular uterin contractions leading to
    haemorrhage. As such the husband of the complainant filed the complaint claiming a compensation of Rs.10.00
    lakhs.

       


    2.
    In the counter-affidavit filed by the 1st opposite party she denied that she was negligent or careless. She states that Smt.Anuradha was admitted in Vijaya Hospital. There was normal vazinal delivery as well as spontaneous delivery of placenta. Thereafter the patient being very weak developed uterin
    haemorrhage. As blood was not available at Gajwel the opposite party directed them to go to Gabdhi Hospital,
    Secunderabad. The patient was shifted into the jeep when she was alive. At that time, the mother and the husband of Anuradha were present. They promised to pay her delivery charges and cost of medicines after returning from Gandhi Hospital. She does not know what has happened thereafter. But after one month, the complainant came with a band of goondas and threatened her to write the case sheet and also the death certificate that the death occurred in her hospital. Out of fear she has written the case sheet in their presence. It is also stated in the counter that one Dr.V.Yadava Reddy is responsible for filing the complaint with false allegations to harass her.

       


    3.
    The complainant filed three or four documents which include the case sheet, death certificate issued by Sarpanch and also another certificate that the death was not recorded.

         


    4.
    The point for consideration is whether the complainant has established any negligence as alleged on the part of the 1st opposite party which resulted in the death of his wife.Smt.Anuradha ?

          


    5.
    On 27.7.1999 it is observed by this Commission that the complainant has not filed affidavit evidence of himself and other witnesses in spite of several adjournments even from 24.12.1997 onwards, it is adjourned to 24.8.1999 with an observation that the matter will be disposed of on the basis of the material available on that date.

      


    6.
    On 24.8.1999 the complainant has filed his affidavit evidence. The opposite party also filed her affidavit as well as the affidavits of two other witnesses. For cross-examination of witnesses it is posted to 24.12.1999. On 31.12.1999 the complainant sought time and the matter is posted to 27.3.2000 directing the witnesses to be ready for cross-examination. On 22.2.2001, witnesses on behalf of the complainant are not present while the opposite party is present. However, the matter is adjourned to 27.3.2001 observing that if the complainant or his Counsel is not present his right to adduce evidence as well as the right to cross-examine the witnesses of the opposite party will be forfeited. On 27.3.2001 the following order is passed.

        

    ” In spite of our order dated 22.2.2001 wherein we have observed that the complainant or his Counsel are not present and since it is an old matter it is finally adjourned to today and in case the complainant or his Counsel is not present to cross-examine the opposite parties, their right to cross-examination would be forfeited. Today also they are not present. Hence their right to cross-examine the opposite parties is forfeited and they have also not produced any evidence or present for cross-examination by the opposite parties. Hence evidence of the complainant is closed. In fact on an earlier occasion, notice was also given to the complainant by this Commission intimating that either the complainant or his Counsel are not present and they should be present for future adjournments. In spite of this there is no improvement and thereafter the complainant changed the Advocate, even then there is no improvement in the situation. Heard the learned Counsel for the first opposite party. Orders reserved.” 

        


    7.
    After the matter is reserved for orders we waited till today with the hope that the complainant may approach for reopening of the matter and seek for an opportunity. But nothing has happened during this time. Therefore, we are convinced that no useful purpose would be served while prolonging the matter any longer. As this is an old matter of the year 1993, we cannot indefinitely postpone the result. Hence the judgment is being pronounced today. 

       


    8.
    The complainant has not turned up for cross-examination in spite of several opportunities. The allegations in the complaint or in his affidavit are not tested in cross-examination. The opposite party is always ready to cross-examine the complainant. The complainant is neither available for cross examination by the opposite party nor his Counsel is available for cross-examine the witnesses on the side of the opposite parties. As such we are constrained to hold that the complainant has failed to substantiate the allegations leveled in his complaint. In the absence of proof by way of some evidence the averments of the complaint by themselves cannot be accepted.

       


    9.
    The complaint, therefore, fails for want of evidence and it is accordingly dismissed. In the circumstances, no costs.

    Complaint dismissed.

         

  • DR.
    (SMT.) N. ROHAN (YADAV)
    v. SMT. MANORAMA TAMRAKAR


    II (2001) CPJ 402

        


    MADHYA PRADESH STATE

    CONSUMER DISPUTES REDRESSAL

    COMMISSION, BHOPAL


       

    Consumer Protection Act, 1986 – Sections 2(1) (d), 2 (1) (o) Medical Negligence – Consumer – Service – Deficiency in service in not taking proper pre and post-operative precautions – Complainant admitted for delivery of child in Government Hospital – Services rendered free of charge – Payment of a token amount of Rs.2/- for registration purpose not alter the position of doctors and hospital – District Forum erroneously held that complainant was consumer, entitled to compensation – Forum had no jurisdiction to entertain the matter – Complaint not maintainable, liable to be dismissed.

        

    Held : Service are rendered free of charge to every body availing the medical service in the said hospital. The payment of a token amount of Rs.2/- for registration purposes only does not alter the position in respect of the doctors and hospitals. It is not the case of the complainant that in the hospital from a particular category.

       


    ORDER


      

    Mr. Justice S.K. Dubey, President – There are
    three appeals arise out of the order date
    31.10.2000 passed in Case No 108/98 by the
    District Consumer Disputes Redressal Forum Sagar
    (for short the ‘District Forum’).

      


    2.
    Facts giving rise to the case are thus : the
    compaint -Smt. Manorama Tamrakar filed complaint
    against Dr. Smt. Usha Saini, Dr. Smt. Shashi
    Thakur, Dr. N. Yadav and Miss Nathaval Nurse of
    the Duffrin Hospital, Sagar allegin deficiency
    in medical service provided to her while she was
    admitted and remained as an indoor patient in
    Government Hospital for delivery of child from
    14.8.1996 to 30.8.1996 from where she was
    discharged and then was the patients the fee or
    consideration is charged or the complaint had
    paid any amount of consideration or fee to the
    doctors concerned even at their residence. In
    the circumstances, in our opinion, the District
    Forum erred in miss-applying the law laid down
    by the Supreme Court and erroneously held that
    the complainant was the consumer and, therefore,
    for deficiency in medical service was entitled
    to compensation. Infact the complaint was not
    maintainable and was liable to be dismissed at
    the initial stage as the District Forum had no
    jurisdiction to entertain the complaint for
    redressal of the grievance of the complaint
    under the provisions of the Consumer Protection
    Act, 1986. (Para 6)

      

    Result : Ordered accordingly.

      

    Cases referred :

        








    1. 

    III
    (1995) CPJ 1 (SC).

    [Para
    5]

    2. 

    AIR
    1940 PC 222.

    [Para
    6]

    3. 

    1983
    JLJ 728.

    [Para
    6]

    4. 

    1988
    II MPWN 33.

    [Para
    6]

    5. 

    1992
    JLJ 489.

    [Para
    6]

    6. 

    Appeal
    No. 994/97, decided on 5.6.2000 by
    MPSADRC.

    [Para
    6]

        

    admitted in the Medical College Hospital,
    Jabalpur for treatment from 10.9.1996 till
    27.9.1996. The complaint averred that after
    lower segment caesarean operation was performed
    on 15.6.1996 whereby the female child was born,
    there was infection and pus formation, which did
    not stop inspite of treatment, hence she was
    referred to Jabalpur Medical College where she
    was admitted on 19.9.1996 and remained under
    treatment till 27.9.1996. In the Jabalpur
    Medical College, while dressing on 10.9.1996 it
    was found that at the place of stitching at the
    time of caesarean operation 5 mtrs. mop was
    left, which ultimately was taken out on
    30.9.1996 by operation. Leaving mop was an act
    of gross negligence on the part of the doctors
    of Government Hospital, Sagar, who performed
    lower segment caesarean operation, therefore,
    claimed the amount of Rs. 5 lacs as compensation
    for deficiency in medical service in not taking
    proper pre and post-operative precautions.
    During this period the female child also died
    for want of proper feeding. The complaint field
    was resisted. The District Forum after
    appreciation of evidence held that the
    complainant was maintainable even if no
    consideration was charged in the Government
    Hospital at Sagar. For the deficiency in
    Service, the District Forum ordered to pay
    compensation of Rs. 50,000/- and Rs. 5,000/- as
    costs of the proceedings within a period of one
    month from the date of the order, failing which
    amount of compensation to carry interest at the
    rate of 12% p.a.

       


    3.
    The hospital and Dr. Smt. Usha Saini and Dr.
    Smt. Shashi Thakur and Staff Nurse aggrieved of
    the order have filed Appeal No. 1763/2000, while
    Dr. Smt. N. Rohan has filed Appeal No. 96/BSP/2000.
    The complainant has also filed Appeal No.
    1803/2000 for enhancement of compensation.

      


    4.
    After hearing learned Counsel for the parties
    we are of the opinion that the order of the
    District Forum cannot be sustained.

      


    5.
    Admittedly, the complainant was admitted for
    delivery of the child in the Government
    Hospital, where no fee is charged on any
    category of the persons or patients accept token
    registration charge of Rs. 2/- from the patient.
    The complainant did not make any payment or
    consideration to the doctors and/or to the
    nurse, who performed the operation or treated
    the complainant at hospital at Sagar. In the
    circumstances, in view of the decision of the
    Supreme Court in case of Indian Medical
    Association v. V.P. Shantha & Ors., III
    (1995) CPJ 1 (SC), wherein the question has been
    dealt with and hospitals and doctors have been
    categorise in para 43 which we quote :

      


    “43.
    The other part of exclusionary clause
    relates to services rendered “free of
    charge”. The medical practitioners,
    Government hospital/nursing homes and private
    hospitals/nursing homes (hereinafter called
    “doctors and hospitals”) broadly fall
    in three categories :

      


    (i)
        where services are rendered free of charge
    to everybody availing the said services;


    (ii)
       where charges are required to be paid by
    everybody availing the services; and


    (iii)
      where charges are required to be paid by
    persons availing service but certain categories
    of persons who cannot afford to

            pay are rendered
    service free of charges.

      

    There is no difficulty in respect of first two
    categories. Doctors and hospitals who render
    service without any charge whatsoever to every
    person availing the service would not fall
    within the ambit of “service” under
    Section 2(1)(0) of the Act. The payment of a
    token amount for registration purposes only
    would not alter the position in respect of such
    doctors and hospitals. So far as the second
    category is concerned, since the service is
    rendered on payment basis to all the persons
    they would clearly fall within the ambit of
    Section 2(1)(0) of the Act. The third category
    of doctors and hospitals do provide free service
    to some of the patients belonging to the poor
    class but the bulk of the service is rendered to
    the patients on payment basis. The expenses
    incurred for providing free service are met out
    of the income from the service rendered to the
    paying patients. The service rendered by such
    doctors and hospitals to paying patients. The
    service rendered by such doctors and hospitals
    to paying patients undoubtedly fall within the
    ambit of Section 2(1)(0) of the Act.”

      


    6.
    The present case is covered by category (i)
    as services are rendered free of charge to every
    body availing the medical services in the said
    hospital. The payment of a token amount of Rs.
    2/- for registration purposes only does not
    alter the position in respect of the doctors and
    hospitals. It is not the case of the complainant
    that in the hospital from a particular category
    of the patients the fee or consideration is
    charged or the complainant had paid any amount
    of consideration or fee to the doctors concerned
    even at their residence. In the circumstances,
    in our opinion, the District Forum erred in
    misapplying the law laid down by the Supreme
    Court and erroneously held that the complainant
    was the consumer and, therefore, for deficiency
    in medical service was entitled to compensation.
    In fact the complaint was not maintainable and
    was liable to be dismissed at the initial stage
    as the District Forum had no jurisdiction to
    entertain the complaint for redressal of the
    grievance of the complainant under the
    provisions of the Consumer Protection Act, 1986.

      

    In view of the above, it is not necessary for us
    to deal with the findings recorded by the
    District Forum on merits as it is well-settled
    that when a Court had no jurisdiction to
    entertain the complaint then the findings
    recorded on merits of the disputes are without
    jurisdiction and are not binding on the parties.
    Therefore, the finding recorded by the District
    Forum on medical negligence would not be binding
    on the parties. See, Upendra Nath v. Lall, AIR
    1940 PC 222, and the decisions of Madhya Pradesh
    High Court in Chalchitra Karmchari Sangh v.
    Regal Talkies, Gwalior, 1983 JLJ 728; Smt.
    Sudamabai v. Pratap Singh, 1998 II MPWN 33; M.P.
    State Road Transport Corporation v. Dashrat
    Singh, 1992 JLJ 489, followed by this Comission
    in Ku. Shalini Kushwaha v. General Manager, SBI
    Fund Management, Mumbai, Appeal No. 994/97,
    decided on 5.6.2000.

       


    7.
    In view of the above, we have no alternative
    but to dismiss this complaint with liberty to
    the complainant if so advised to institute the
    suit in the Court of competent jurisdiction to
    claim compensation for negligence. If the
    complainant chooses to institute the civil suit
    for the relief claimed in these proceedings she
    can do so according to law and in such a case
    can claim the benefit of Section 14 of the
    Limitation Act to exclude the period sent in
    prosecuting the proceedings under the Consumer
    Protection Act while computing the period of
    limitation prescribed for such a suit.

      


    8.
    In the result, the Appeal Nos. 96/BSP/2000
    and 1783/2000 are allowed while Appeal No.
    1803/2000 filed by the complainant dismissed.
    Accordingly, the order of the District Forum is
    set aside. Consequently the complaint is
    dismissed with no order as to costs. A copy of
    this order be conveyed to the parties and a copy
    to be sent to the District Forum along with the
    record of the case.

      

    Ordered accordingly.

            


  • II (2001) CPJ 354

        

    UTTAR PRADESH STATE CONSUMER 

    DISPUTES REDRESSAL COMMISSION, LUCKNOW


      

    SMT. TAHIRA KHATOON – Appellant versus
    GOVERNMENT OF UTTAR PRADESH & ORS. -
    Respondents


      

    Consumer Protection Act, 1986 – Section 2(1) (d)
    – Medical Negligence – Consumer – M.T.P. surgery
    conducted – Uterus got burst, pus developed on
    permanent basis – Compensation claimed -
    Contention, Rs.100/- for room rent and Rs.25/
    for glucose charged – Contention not acceptable
    – Person under treatment has to pay incidental
    expenses – No fee charged for operation,
    complainant not a consumer.

        

    Held : A perusal of the judgment will go to show
    that a sum of Rs.2/- was charged for
    prescription and a sum of Rs.100/- was charged
    as room rent and Rs.25/- was charged for
    glucose.. No fee was charged from the
    complainant for doing the operation. These are
    incidental expenses, which a person has to pay
    for the treatment. The hospital does not bear
    this part of the expenses which are done during
    the period of operation or after that. Thus, we
    find that the services of the opposite parties
    were availed free of charge and hence the
    complainant is not covered under the definition
    of consumer. The findings of the learned
    District Forum are perfectly correct and need no
    interference.

        

    ORDER

        

    Mr. .Justice K. C. Bhargava, President –

    This is an appeal against the judgment and order
    dated 3.10.1992 passed by District Consumer
    Forum, Gorakhpur in Complaint Case No.74/1992.

        

    2. The facts of the case stated in brief
    are that the complainant went to the District
    Women Hospital, Gorakhpur on 6.8.1990 for her
    treatment. Thereafter on the next day she again
    went to the hospital for M.T.P. The surgery for
    M.T.P. was done on the same day. On account of
    this surgery, the uterus of the complainant got
    burst and there developed pus on permanent basis
    in the uterus. On account of this fact she was
    unable to enjoy sexual life with her husband.
    She has claimed a compensation of Rs.97,000/-

        

    3. On behalf of the opposite party it was
    alleged that the case is not triable by the
    learned District Forum as the complainant is not
    a consumer. Before this a complaint of a similar
    nature was lodged in which it was held that as
    no charges were made, therefore, the complaint
    is not maintainable on account of the fact that
    the complainant is not a consumer.

            

    4. It was further alleged that the
    treatment of the complainant was done free of
    charge in the District Hospital. The complainant
    disclosed on the next date that she has two sons
    and two daughters and she prayed for vasectomy
    operation. At that time it was found that the
    uterus of the complainant was in burst condition
    which was stitched. The operation was done under
    the supervision of competent doctors.

        

    5. Learned District Forum, after
    considering the case of the parties, came to the
    conclusion that the treatment was done free of
    cost and hence the complainant is not a consumer
    and dismissed the complaint.

       

    6. Aggrieved against the order of the
    learned District Forum, the complaint has come
    in appeal, and has challenged the correctness of
    the order passed by the District Forum.

      

    7. We have heard the learned Counsel for
    the appellant. Notice was sent to the opposite
    parties, but the opposite parties did not appear
    on the date of hearing.

       

    8. A perusal of the judgment will go to
    show that a sum of Rs.2/- was charged for
    prescription and a sum of Rs.100/- was charged
    as room rent and Rs.25/- was charged for
    glucose. No fee was charged from the complainant
    for doing the operation. These are incidental
    expenses which a person has to pay for the
    treatment. The hospital does not bear this part
    of the expenses which are done during the period
    of operation or after that. Thus we find that
    the services of the opposite parties were
    availed free of charge and hence the complainant
    is not covered under the definition of consumer.
    The findings of the learned District Forum are
    perfectly correct and need no interference.

        

    The appeal is thus liable to be dismissed.

        

    ORDER

          

    The appeal is dismissed and the judgment and
    order of the learned District Forum are
    confirmed. There will be no order as to the
    costs.

      

    Let copy as per rules be made available to the
    parties.

     

    Appeal dismissed.

        


  • RAMESHCHANDRA
    GOSWAMI v. DR. DIPAK BANERJEE


      

    Consumer Protection Act, 1986 – Section 2(1)(g)
    – Medical Negligence – Deficiency in Service – Careless / negligence operation – Patient operated for appendicitis – Developed respiratory trouble after operation – Died due to cerebral attack occurred due to careless / negligent operation, patient did not regain consciousness due to wrong application of anesthesia – Allegation not established by expert evidence – Deficiency in service on part of opposite parties not proved – Complainant not entitled for a relief.

      

    Held: According to the complainant the cerebral attack occurred due to careless negligent operation by the
    doctor. But there is expert evidence to establish the fact that if operation was the proximate cause of the cerebral attack. In the petition of the complainant it has been alleged that because of wrong application anesthesia the patient did not regard consciousness, and ultimately died. Here again, there is no tangible evidence to establish fact. The learned Counsel for the opposite party-1 drawn our attention to noting in the bedhead ticket dated 4.8.1993 to show that one of the doctors had noticed marked improvement in condition of the patient while she was under treatment at SSKM Hospital. The learned Counsel of the opposite party has also drawn attention counter affidavit filed by the complainant wherein it has been stated in paragraph 2 thereof that doctors H.K.Mitra and Amit Kr.Mukherjee are the owners of the nursing home (opposite party-3) whereas the stand taken in the complainant petition was that the opposite parties-1 and 2 are the owners of the said nursing home. Anyway these are not very much relevant for the purpose of this case. The question that arises for consideration is whether there was any deficiency in service on the part of the doctors. As indicated earlier there is no satisfactory evidence to establish the allegation against the doctors. This being the position we cannot but reject the claim. (Para 5 )

       

    Result : Complaint dismissed.

        


    ORDER


         

    Mr. Justice S.C.Datta, President – The complainant is husband of the deceased Arati
    Goswami. He has approached this Commission claiming compensation to the tune of Rs.10 lakhs for the death of his wife on 31.8.1993 due to defective operation performed by the opposite party-1 on 7.7.1993.

         


    2.
    The case of the complainant in short is that his wife Arati Goswami suddenly fall ill on 30.6.1993 due to pain in the abdomen. She was immediately taken to Dr. Dipak Banerjee (opposite party-1) in his chamber for advice and treatment. After examination the said doctor advised for immediate operation for appendicitis. On his advice the patient was admitted to Shush Usha Nursing Home (opposite party-3) on 6.7.1993 at about 10.40 p.m. On the next day i.e. on 7.7.1993 at about 7.45 a.m. Dr.Banerjee performed the operation on the patient with the help of anesthetist Dr.Sujit das (opposite party-2). Immediately after operation the patient experienced respiratory trouble. The complainant alleges that this occurred due to negligence of the doctor performing the operation, nursing staff and absence of oxygen cylinder in the said nursing home. There is further allegation that no cardiologist was called for. In fact, tube patient lay uncared for about more than four hours in a precarious condition. Dr.Banerjee called
    Dr.S.K.Chatterjee, cardiologist (opposite party-4) at about 12 noon. Dr.Chatterjee noticed the precarious condition of the patient and advised shifting of the patient to a reputed hospital in Calcutta as otherwise she would be in a state of coma. Dr.Chatterjee further observed that this was a case of cerebral attack. The patient was shifted to Calcutta and admitted in the neurological medicine ward (female) of SSKM Hospital. The patient lay unconsciousness and she never regained her consciousness. Ultimately she expired on 31.8.1993. According to the complainant Dr.Banerjee being not a gynaecologist had no authority to perform such an intricate operation. Moreover, there was absence of necessary equipments and facilities at the nursing home resulting in untimely death of the patient. The complainant lodged complaint with the West Bengal Medical Council but without any consequence. Thereafter he approached this Commission for redress.

          


    3.
    The case is contested by the opposite parties-1 and 2 by filing a joint written version. It has been stated that he was sent for examination of the patient at the nursing home on 6.7.1993 and he advised immediate operation of the patient considering the seriousness of the ailment. Dr.Banerjee noticed that it was a case of pathological appendicitis. He advised for immediate surgery and also suggested that another surgeon should be consulted for second opinion. But the complainant insisted upon him to perform the operation. The complainant having expressed inability to consult another surgeon and having given procedural consent for such operation, Dr.Banerjee surgically removed the appendicitis of the patient with the help of opposite party-2 after taking all necessary precautions and following approval medical procedures for such surgery. The patient having felt respiratory trouble, Dr.Chatterjee was sent for who arrived on the same date at about 12 noon and advised for hospitalization. The opposite party denied that the patient died because of negligence. Since time was very short and condition of the patient worsened they had no time for detailed pathologica examination before the operation.

          


    4.
    The sole point for determination in the case is whether the complainant has succeeded in establishing deficiency in service in the matter of operation of he patient on 7.3.1993. Several ….. are committed. Dr. Banerjee is MBBS (Cal) and MAIMS (Delhi). Anyway the complainant consulted him while his wife fell ill following a pain in the abdomen. Dr. Banerjee performed the operation and removed the appendix. It has been alleged that he is not qualified to perform the said operation. It may be remembered that he is an MBBS doctor and as such it cannot be disputed that he had authority to perform the operation. The operation was done and appendix was removed within a few hours. The patient developed respiratory trouble and Dr.
    S.K.Chatterjee, a cardiologist was sent for. He observed that it was a case of cerebral attack. He advised immediate shifting of the patient to a reputed hospital in Calcutta. The patient was taken to Calcutta and admitted to SSKM Hospital for treatment. Later she expired there on 31.8.1993. The learned Counsel appearing for the opposite parties has drawn our attention to the death certificate wherefrom it appears that the death occurred due to brain stem infraction. It may be mentioned that the trouble started after the operation was done and one appendix was removed.

         


    5.
    According to the complainant the cerebral attack occurred due to careless / negligent operation by the doctor. But there is no expert evidence to establish the fact that the operation was the proximate cause of the cerebral attack. In the petition of complainant, it has been alleged that because of wrong application of anesthesia the patient did not regain consciousness, and ultimately died. Here again there is no tangible evidence to establish fact. The learned Counsel for the opposite party-1 has drawn our attention to noting in the bedhead ticket dated 4.8.1993 to show that one of the doctors had noticed marked improvement in the condition of the patient while she was under treatment at SSKM Hospital. The learned Counsel of the opposite party has also drawn attention to counter affidavit filed by the complainant wherein it has been stated in paragraph 2 thereof that doctors H.K.Mitra and Amit Kr. Mukherjee are the owners of the nursing home (opposite party-3) whereas the stand taken in the complaint petition was the opposite parties-1 and 2 are the owners of the said nursing home. Anyway these are not very much relevant for the purpose of this case. The question that arises for consideration is whether there was any deficiency in service on the part of the doctors. As indicated earlier there is no satisfactory evidence to establish the allegation against the doctors. This being the position we cannot but reject the claim. 

       

    In view of the aforesaid, the case deserves to be dismissed which we hereby do.

        

    Ordered that the case be and the same is hereby dismissed on contest.

        

    Complaint dismissed.

         


  • RAKESH KUMAR v. DR.D.P.BAKSHI


    II(2001) CPJ 59 (NC)

       

    Consumer Protection Act, 1986 – Section 24A – `Medical’, `Barred by Limitation’ – Complainant`s hand did not fully respond to the operation – Whether the complaint is barred by limitation ? – Whether the complaint has given any explanation for this inordinate delay ? [No].

        

    Held: The fact is that the absence of the radial nerves was known to the complainant on 2nd June, 1990 and that the right radial artery was missing. But the complainant filed the present complaint in February, 1999 which is almost 9 years after the said operation. Limitation provided under Section 24A of the Act is 2 years. Such delay can, however, be explained in terms of proviso to the said section. But no explanation for such long delay has been made before us.

       

    In these circumstances, we are not inclined to condone the delay of about 7 years in filing the complaint. This original petition is, therefore, dismissed, as time barred. This diposal shall not prevent the complainant to such remedy in any other Forum in accordance with law.
    (Paras 1 & 2 )

       

    Result: Original Petition dismissed.

         


    ORDER


        

    Mr.Justice J.K.Mehra, Member – This is a complaint filed by the complainant against the opposite party who is a Surgeon for the alleged negligence committed by the said Surgeon in operating upon the complainant`s right hand. It is alleged that the patient could not move his wrist and the fingers. It was to remedy this malady that the operation was carried out on 20th April, 1990 at Calcutta. It is stated in the complaint that the hand of the patient did not fully respond after the operation and certain complications also developed later. Even the report of one, Dr. A.K.Biswas which is relied upon by the complainant in the complaint is that of 2nd June, 1990 wherein the fact of missing radial nerves and radial artery is noted. Thereafter, the patient was treated at different centers including All India Institute of Medical Sciences
    (AIIMS). The fact is that the absence of the radial nerves was known to the complainant on 2nd June, 1990 and that the right radial artery was missing. But the complainant filed the present complaint in February, 1999 which is almost 9 years after the said operation. Limitation provided under Section 24A of the Act is 2 years. Such delay can, however, be explained in terms of proviso so the said section. But no explanation for such long delay has been shown nor any prayer for condonation of delay has been made before us.

       

    2. In these circumstances, we are not inclined to condone the delay of about 7 years in filing the complaint This original petition is, therefore, dismissed, as time barred. This disposal shall not prevent the complainant to such remedy in any other Forum in accordance with law.

       

    Original Petition dismissed.

         

  • Dr.
    (Smt.) N. Rohan Yadav v. Smt. Manorama Tamrakar & Ors.


    2001(2) CPR 35

     

    STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MADHYA
    PRADESH : BHOPAL


     

    Consumer Protection Act, 1986 – Sections 2 and 14 – Consumer
    – Medical Negligence – At the time of Caesarean operation 5
    mtrs mop was left which was later on taken out by another
    operation – Forum awarded compensation holding complaint
    maintainable against appellants, doctors of Government
    Hospital – Appeal – No fee was charged from any category of
    persons or patients except taken registration charge of Rs.
    2 from the patient – No case of complainant that from a
    particular category of patients fee or consideration was
    charged – Complainant could not be said to be consumer and
    complaint was not maintainable.    
    (Para 5 to 7)

     

    Result : Appeals allowed.

     

    IMPORTANT POINT

     

    Patient who avails medical service of Government Hospital
    where no fee or consideration is charged except a small
    amount as registration charges, he cannot be said to be a
    consumer.

     

    ORDER

     

    S.K. Dubey, President – The three appeals arise out of the
    order dated 31-10-2000 passed in case No. 108/98 by the
    District Consumer Disputes Redressal Forum, Sagar (for short
    the ‘District Forum’).

     

    2. Facts giving rise to the case are thus : the
    complainant Smt. Manorama Tamrakar filed a complaint against
    Dr. Smt. Usha Saini, Dr. Smt. Shashi Thakur, Dr. N. Yadav
    and Miss Nathaval, Nurse of the Duffrin Hospital, Sagar
    alleging deficiency in medical service provided to her while
    she was admitted and remained as an indoor patient in
    Government Hospital for delivery of child from 14-8-1998 to
    30-8-1998 from where she was discharged then was admitted in
    the Medical College Hospital, Jabalpur for treatment from
    10-9-1998 till 27-9-1998. The complainant averred that after
    lower segment caesarean operation was performed on 15-8-1996
    where by the female child was born, there was infection and
    pus formation, which did not stop inspite of treatment,
    hence she was referred to Jabalpur Medical College where she
    was admitted on 19-9-1996 and remained under treatment till
    27-9-1996. In the Jabalpur Medical College, while dressing
    on 10-9-1996 it was found that at the place of stitching at
    the time of Caesarean operation 5 mtrs mop was left, which
    ultimately was taken out on 30-9-1996 by operation. Leaving
    mop was an act of gross negligence on the part of the
    Doctors of the Government Hospital, Sagar, who performed
    lower segment caesarean operation therefore, claimed the
    amount of Rs. 5 lacs as compensation for deficiency in
    medical service in not taking proper pre and post operative
    precautions. During this period the female child also died
    for want of proper feeding. The complaint filed was
    resisted. The District Forum after appreciation of evidence
    held that the complainant was a consumer and the complaint
    was maintainable even if no consideration charged in the
    Government Hospital at Sagar. For the deficiency in service,
    the District Forum ardered to pay compensation of Rs.
    50,000/- and Rs. 5,000/- as costs of the proceedings within
    a period of one month from the date of the order, falling
    which amount of compensation to carry interest at the rate
    of 12% p.a.

       

    3. The Hospital and Dr. Smt. Usha Saini and Dr. Smt.
    Shashi Thakur and Staff Nurse aggrieved of the order have
    filed appeal No. 1763/2000. while Dr. Smt. N. Rohan has
    filed appeal No. 96/BSP/2000. The complainant has also filed
    appeal No. 1803/2000 for enhancement of compensation.

     

    4. After hearing learned counsel for the parties we
    are of the opinion that the order of the District Forum
    cannot be sustained.

      

    5. Admittedly, the complainant was admitted for
    delivery of the child in the Government Hospital, where no
    fee is charged from any category of the persons or patients
    except token registration charge of Rs. 2 from the patient.
    The complainant did not make any payment or consideration to
    the doctors and/or to the nurse, who performed the operation
    or treated the complainant at Hospital at Sagar. In the
    circumstances, in view of the decision of the Supreme Court
    in case of Indian Medical Association v. V.P. Shantha and
    others, wherein the question has been dealt with and
    hospitals and doctors have been categorized in para 43 which
    we quote :

       

    43. The other part of exclusionary clause relates to
    services rendered “free of charge”. The Medical
    Practitioners, Government Hospital / Nursing Homes and
    private Hospital / Nursing Homes (hereinafter called “Doctors
    and Hospitals”) broadly fall in three categories :-

     

    (i) where services are rendered free of charge to everybody
    availing the said services.

     

    (ii) where charges are required to be paid by everybody
    availing the services, and

     

    (iii) where charges are required to be paid by persons
    availing service but certain categories of persons who
    cannot afford to pay are rendered service free of charges.

     

    There is no difficulty in respect of first two categories.
    Doctor and Hospitals who render service without any charge
    whatsoever to every person availing the service would not
    fall within the ambit of “service” under section
    2(1)(o) of the Act. The payment of a token amount for
    registration purposes only would not alter the position in
    respect of such Doctors and hospitals. So far as the second
    category is concerned, since the service is rendered on
    payment basis to all the persons they would clearly fall
    within the ambit of Section 2(1)(o) of the Act. The third
    category of Doctors and hospitals do provide free service to
    some of the patients belonging to the poor class but the
    bulk of the service is rendered to the patients on payment
    basis. The expenses incurred for providing free service are
    met out of the income from the service rendered to the
    paying patients. The service rendered by such Doctors and
    hospitals to paying patients undoubtedly fall within the
    ambit of Section 2 (1)(o) of the Act”.

      

    6. The present case is covered by category (1) as
    services are rendered free of charge to everybody availing
    the medical services in the said hospital. The payment of a
    token amount of Rs. 2 for registration purposes only does
    not alter the position in respect of the doctors and
    hospitals. It is not the case of the complainant that in the
    Hospital from a particular category of the patients the fee
    or consideration is charged or the complainant had paid any
    amount of consideration or fee to the doctors concerned even
    at their residence. In the circumstances, in our opinion,
    the District Forum erred in mis-applying the law laid down
    by the Supreme Court and erronesously held that the
    complainant was the consumer and therefore, for deficiency
    in medical service was entitled to compensation. In fact the
    complaint was not maintainable and was liable to be
    dismissed at the initial stage as the District Forum had no
    jurisdiction to entertain the complaint for redressal of the
    grievance of the complainant under the provisions of the
    Consumer Protection Act, 1986.

      

    7. In view of the above, it is not necessary for us
    to deal with the findings recorded by the District Forum on
    merits as it is well settled that when a court had no
    jurisdiction to entertain the complaint then the findings
    recorded on merits of the disputes are without jurisdiction
    and are not binding on the parties. Therefore, the finding
    recorded by the District Forum on medical negligence would
    not be binding on the parties. See, Upendra 
    Nath v. Lall and the decisions of Madhya Pradesh High
    Court in Chalchitra Karmchari Sangh v. Regal Talkies,
    Gwalior, Smt. Sudamabai v.Pratap Singh, M.P. State Road
    Transport Corporation v. Dashrat Singh, followed by this
    Commission in Ku. Shalini Kushwaha v. General Manager, SBI
    Fund Management Mumbai.

     

    8. In view of the above, we have no alternative but
    to dismiss this complaint with liberty to the complainant if
    so advised to institute to suit in the Court of competent
    jurisdiction to claim compensation for negligence. If the
    complainant chooses to institute the civil suit for the
    relief claimed in these proceedings she can do so according
    to law and in such a case can claim the benefit of Section
    14 of the Limitation Act to exclude the period spent in
    prosecuting the proceedings under the Consumer Protection
    Act, while computing the period of limitation prescribed for
    such a suit.

      

    9. In the result, the appeals No. 96/BSP/00 &
    1763/00 are allowed while appeal No. 1803/2000 filed by the
    complainant is dismissed. Accordingly the order of the
    District Forum is setaside. Consequently the complaint is
    dismissed with no order as to costs. A copy of this order be
    conveyed to the parties and copy be sent to the District
    Forum alongwith  the
    record of the case.

     

    Appeals allowed.

        

  • Sunita
    Vasant Heganawar & Ors.v.Miraj Medical
    Center

    1994 (2) CPJ 544: 1994 (3) CPR 214 (Mah
    SCDRC)

       

    More Details      Click
    Here

        

  • Amir
    Ali Shakil v. St. John’s Medical College
    Hospital, Bangalore

    1996(1)
    CPJ 169: 1995 (3) CPR 174 (Karnataka SCDRC)

       

    More Details      Click
    Here

       

  • B.
    Hegde v. Dr. Sudhansu Bhattacharya

    1992(2) CPJ 449 (Mah SCDRC)

          


    More Details      Click
    Here


         

  • Renu
    Jain v. Escorts Heart Hospital and Research
    Institute.

    1992 (2) CPJ 391 (NCDRC)

       


    More Details      Click
    Here


       

  • Bhajan
    Lal Gupta & Anr. v. Mool Chand  Kharati
    Ram Hospital & Ors.

    2000(1) CPR
    70 (NC)

      

    More Details      Click
    Here


        

  • Sir
    Gangaram Hospital v D.P Bhandari & Ors.

    1992
    (2) CPJ 397 (NCDRC).

        

    More
    Details      Click
    Here


       

  • Poona
    Medical Foundation Ruby Hall Clinic v Maruti Rao
    L Tikare & Anr

    1995
    (1) CPJ 232 :1995 (1) CPR 661 (NCDRC)

       

    More
    Details      Click
    Here


       

  • Dr
    Narayan Choudhary & Anr v Dr (Mrs ) Rita
    Poddar & ors.

    1997(3)
    CPJ 557 : 1998 (3) CPJ 66 (WB SCDDRC)

       

    More
    Details      Click
    Here


        

  • Shubh
    Lata v. Christian Medical College

    1
    1995(1)CPJ 165(Punjab) SCDRC

       

    More Details      Click
    Here


        

  • Dr.
    JOSLIN CHRYSOSTOM v. S. LOURDU


    III (2001) CPJ 126

    TAMILNADU STATE CONSUMER DISPUTES REDRESSAL
    COMMISSION, CHENNAI

        

    More Details
         
    Click
    Here


         


         


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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.
        

  • Mr. Yoginder Beri v. Grover Eye & E.N.T. Hospital & Ors.
    2001 (2) CPR 358
         
    STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T: CHANDIGARH
       
    Consumer Protection Act, 1986 – Sections 2(1) (o) r/w Section 2(1) (g) 12 and 14 – Complaint about medical negligence – Deficiency in Medical service – Cataract operation of both eye was big and lazy – Fact known to complainant - O.P. did not assure restore of normal vision in right eye – Operation was successful – But due to big right eye, problem of double image and incompatible image occurred – Second opinion taken – No evidence of defective operation or defective treatment suggested – whether there is deficiency in service on facts or in law? (No) – Complaint dismissed – 1997 (2) CPR 126 NC) relied on. 
        
    Held: it is undisputed that the complainant Mr. Yoginder Beri had problem in his eyes and he consulted Opposite Party No.2 Dr. Rohit Grover of the Opposite Party No.1 – Grover Eye & ENT Hospital in May 1997. It is also not disputed that the Opposite Party No. 2 Dr. Rohit Grover advised surgery in his right eye by the imparting of intraocular lens with phaco emulsification. For the service rendered by the Opposite Party No. 2 Dr. Rohit Grover for himself and on behalf of Opposite Party No.1 the Hospital, the requisite fees was charged from the complainant and the same is not in dispute. It is also not disputed that ultimately the right eye of Mr. Yoginder Beri was operated upon on the date fixed i.e., 27/5/1997 at 6.30 a.m. at Hospital (Opposite Party No.1) by Opposite Party No.2 Dr. Rohit Grover. It is also not in dispute that the complainant himself went to have consultation from Dr. V.K. Dada, Head of Department. All India Institute of Medical Sciences (A.I.I.M.S.), New Delhi and that there he had some treatment of Yag Laser and other tests.
    (para 17)
        
    The dispute arises about the treatment by means of operation conducted by Opposite Party No.2 Dr. Rohit Grover on the right eye resulting to the problem in the eye of complainant regarding his seeing double image and incompatibility of images in two eyes i.e. right side operated eye and the left side eye. The main stand of the Opposite Parties No.1 & 2 is that the right eye of the complainant Mr. Yoginder Beri was bigger than the left eye and the result of it was that he was having bigger image of the object in his right eye than the size of the image perceived through the vision in the left eye. According to the aveerments made in the reply of the Opposite Parties No.1 & 2, this problem of bigger eye of the complainant on the right side was since the childhood and was thus a problem which he was having since his birth and childhood. It may also be mentioned that at the time of the initial check up of the eyes of the complainant Mr. Yoginder Beri was told by Dr. Rohit Grover about this abnormality and the fact that there was limited visual gain accepted in the right eye. The perusal of Annexure C-1 (2nd page) will go to show that an endorsement was made regarding the right eye by Dr. Rohit Grover, which is as follows:
       
    “Limited visual gain Rt. Eye explained”. (Para 18)
        
    A careful perusal of the statement of the complainant made in his cross examination will go to show that he could not contradict the fact that eye ball of his right eye was bigger as compared to the left eye. He also admitted as a fact that after the cataract operation, with the use of glasses, his vision was raised to 6/18. He also stated that it was correct that after the operation, eye sight of his right eye improved. The complainant Mr. Yoginder Beri, as per his statement made in cross-examination underwent laser treatment at AIIMS, New Delhi. He was not aware of the fact that it was not permissible atleast for the period of three months after the cataract operation. Mr. Yoginder Beri not only consulted Dr. Dadda at AIIMS, New Delhi but also had consultation in various hospitals such as Government Hospital, Sector 32, General Hospital, Sector 16 and P.G.I. at Chandigarh. The complainant also admitted as a fact that none of the Doctors to whom he consulted after his operation gave any opinion in writing about the operation conducted by Dr. Rohit Grover being deficient or that Dr. Rohit Grover was medically negligent in performing the operation and in the implantation of the intra-ocular lens. Now since the complainant himself could not contradict the fact that his eye ball of the right eye was bigger as compared to the left eye, the statement of Dr. Rohit Grover in regard to the problems faced by a person having such kind of defected size of eye ballbecomes quite relevant. It can not be said that the power of the lens implanted in the right eye of Mr. Yoginder Beri by Dr. Rohit Grover has not been done or proved by any reliable and cogent evidence of any specialist to be wrong and incorrect and thereby causing the problem said to be post operative to the said eye of the complainant Mr. Yoginder Beri. At this place, it may be useful to refer though at the cost of repetition that the complainant had a definite improvement, even according to his own statement in the vision in his right eye and he was able to read the top four lines of the chart though he claimed in his cross-examination that even prior to operation, he could read top three lines which fact, he has not proved by any medical evidence of any age specialist.
        
    Held on facts: It will be relevant to bear in mind that after getting the right eye operated from Opposite Party No.2 Dr. Rohit Grover, the complainant Mr. Yoginder Beri consulted other eye surgeons at different hospitals mentioned above at Chandigarh and also consulted Dr. Dada at A.I.I.M.S. , New Delhi and also had laser treatment and other tests which facts were not in the knowledge of Dr. Rohit Grover and the consultations were not made with the consent of the Opposite Party No.2. In other words, the complainant himself decided to have second and subsequent opinion and treatment after his operation aforesaid conducted by Dr. Rohit Grover. It is also significant to note that apart from the statement of the complainant Mr. Yoginder Beri, there is no other medical evidence of any eye specialist to show that the diagnosis of the ailment in the eye of the complainant made by the Opposite Party No.2 Dr. Rohit Grover was incorrect and faulty and line of treatment prescribed and given by the Opposite party No.2 was not the correct line of treatment. It can not thus be held on the basis of the evidence on record that Dr. Rohit Grover on facts, was either negligent in performing the operation and providing treatment to the complainant Mr. Yoginder Beri or was deficient in anyway in rendering the services hired by the complainant Mr. Yoginder Beri.
    (Para 24)
         
    Held on law relying on 1997 (2) CPR 126 NC: In our considered view, the case law cited by the learned counsel for the respondent is quite applicable to the facts of the instant case. Resultanly, the complainant has failed to prove any deficiency in service on the part of Opposite Party No.2 Dr. Rohit Grover of Opposite Party No.1 Grover Eye & ENT Hospital and has further failed to show that Dr. Rohit Grover was in any way medically negligent in providing the treatment to the complainant. The complainant, without the advise or approval of Dr. Rohit Grover abandoned the treatment prescribed by Dr. Grover and consulted several other eye specialists at Chandigarh and also at A.I.I.M.S. , at New Delhi where he under went laser treatment and other tests which according to Dr. Rohit Grover should not have been undertaken so soon after the operation for the cataract in the right eye. In other words, the complainant himself is responsible to the condition of the eye, in which he is placed after the operation. Since the complaint fails against the Opposite Parties No.1 and 2, the question of any liability on the part of Opposite Party No.3 namely new India Assurance Company Ltd., does not arise and the complaint deserves to be dismissed against the Opposite Parties. The Opposite Party No.3 is the Insurance Company which has insured the Opposite Parties No.1 & 2 (Para 26).
        
    Held finally: Consequently, this complaint lacks merit and is dismissed. However, in the circumstances of the case, the costs of the complaint shall be borne by the parties themselves.
    para 27)
       
    Result: Complaint dismissed
     
    Case referred:
       

  • Kailash Kumar Sharma v. Dr. Hari Charan Mathur,
    1997(2) CPR 126. (Para 24)
       
    IMPORTANT POINT
       
    The complainant has failed to prove any deficiency in medical service of eye surgeon or the eye hospital either on facts or in law regarding problem in his right eye due to cataract operation.
       
    ORDER
        
    K.K. Srivastava, President – The complainant Mr. Yoginder Beri a resident of House No. 5155/3, Modern Housing Complex, Manimajra, Chandigarh approached Opposite Party No. 2 Dr. Rohit Grover of Grover Eye & ENT Hospital, Kothi No. 140, Sector 35-A, Chandigarh (Opposite Party No.1) for treatment of problem in his eyes. The Opposite Party No.2 Dr. Rohit Grover after thoroughly checking the eyes of the complainant Mr. Yoginder Beri apprised him that he was having a Cataract in both his eyes and advised him for operation on urgent basis. The operation was to be done for Phaco Emulsification i.e. by implanting Intra Ocular Lens (for short to be referred as I.O.L). The complainant had consulted Dr. Rohit Grover on 2nd May 1997 for finalizing the date of further queries from the Opposite Party No.2 Dr. Rohit Grover whether any reoperation is possible to rectify the disorder by change of lens implanted by him but Dr. Rohit Grover showed his ignorance and recommended the names of Doctors for consultation who according to him were authorities in said kind of surgery in India:-
        
    1) Dr. (Prof) V.K. Dada Head of Deptt
    AIIMS, HP, Hospital, New Delhi
        
    2) Dr. Kumar & Dr. Keiky Mehta Colaba Hospital, Bombay
       
    It is alleged that the complainant Mr. Yoginder Beri went to New Delhi and sought appointment with nDr. V.K. Dada at his residence as he was on leave from the hospital. The complainant visited the AIIMS Hospital on 7.7.1997 for consultation and after checkup Dr. Dada recommended yag laser and other tests and asked him to visit again on 10/7/1997. On 10/7/1997, Dr. Dada verbally advised the complainant that risk of re-operation should not be taken as the chances of its success are almost nil and advised the complainant Mr. Beri that he should remained dependent on the left eye and be cautious in the event of its operation if required at later stage.
        
    It has been contended by the complainant that due to poor vision, he had to seek his premature retirement from the job with the State Bank of India otherwise in the normal course, the complainant was to retire on attaining the superannuation age of 60 years on 30/4/2001 as his date of birth was recorded as 15/4/1991. The complainant however sought his premature retirement as aforesaid on 2/6/1998. It is the allegation of the complainant that he suffered permanent disability in his vision resulting in physical and mental harassment due to the deficiency in service on the part of the Opposite Parties, Mr Yoginder Beri, the complainant, claimed damages to the extent of Rs.7 lacs with the following break up:- 
        
    Sr.No. Details Amount
        
    1. Paid to Opposite Party No.1 towards the operation Rs. 12,500.00
    2. Paid as consultation charges Rs. 75.00
    3. Loss of Salary of two months Rs. 37,425.00
    4. Compensation for permanent disability, physical torture Rs.6,50,000.00
    Total Rs.7,00,000.00 

    3. The complainant, however, averred that he received a sum of Rs.10,000/- from his employer i.e. the State Bank of India being the benefit of medical reimbursement which is admissible in the service of the complainant. The complainant has assured in Para 14 of his complaint to return the said amount of Rs.10,000/- to his employer, if the same was ordered and actually to be paid to him by the Opposite Parties.
      
    4. The complainant got a legal notice served on 5-4-1998 on Opposite Party Nos. 1 & 2 claiming the compensation of Rs.7,00,000/-. The said legal notice was replied by both the Opposite Parties vide reply dated 31-5-1998 and denied their liability to pay any amount of compensation. With these allegations, this complaint was filed before this Commission through counsel Shri Ashok Gupta, Advocate on 31/3/1999 and amended complaint was filed on 15/10/1999. The amount was claimed against the three Opposite Parties. The third Opposite Party being the New India Assurance Company Ltd. Sector 17-D. Chandigarh, the insurer of Opposite Parties No. 1 & 2.
      
    5. After serving the notices of the complaint case, a joint reply was filed by the Opposite Parties No.1 & 2. Certain preliminary objections were raised in the reply which states briefly as under:-
        
    1. The complainant does not disclose the basis of the opinion formed by the complainant for any deficiency in service. No documentary proof has been filed alongwith the complaint from any Specialist showing the treatment given by the Opposite Parties being not accordance with the medical science.
    2. There is no basis for claiming compensation for a sum of Rs.7 lacs. The payment made to the Opposite Parties No.1 & 2 included other charges out of which a sum of Rs.4800.00 paise were the operation charges.
       
    6. It has been alleged that the amount of compensaiton claimed by the complainant is exorbitant. As a matter of fact the complainant approached Dr. Rohit Grover the answering Opposite Party No.2 for removal of Cataract by automated machine called Phaco for short. The complainant was provided intro-ocular lens with phaco emulsification, which is the latest and safest method of Cataract surgery being most popular in America and Opposite Party No.2 had been practising on this line since 1994.
       
    7. It was specifically averred in Para 3 by the Opposite Parties that the complainant was told that since his right eye has been weak since birth and even after operation, there will be certain limitation of vision as compared to normal eye. The complainant was using spectacles before operation of the number about 10.0 in the right eye which he never used as the eye never functioned well with the glasses. This condition of Anisoetropic Amblyopia (for short hereafter called lazy eye). It was further contended that the success of the operation was absolute and the complainant was happy after having shown to Professor V.K.Dada of AIIMS., New Delhi. The complainant had absolutely normal post operative recovery except for the problem of weak right eye as explained above. It was also averred that as a matter of fact the complainant wanted to take leave on medical ground as he wanted to avoid posting ot of station and he intended to prolong the medical leave with the help of Opposite Parties, which was refused and this complaint has been filed only after the said refusal on the part of the Opposite Party No.2.
       
    8. In Para 4 of the preliminary objections, it was contended that the eye has been traditionally compared to a camera and cinema project or where object of the outside world is focused on the other side of the lens. It is submitted that longer the eye the larger will be the size of the image as is clear with the diagrams drawn and attached with this reply. If the object is focused on the retina of the eye and is viewed with internal lens system of the eye then the longer eye needs minus number of the glasses for focusing the image as is common that the minus numbered glasses make the image seen smaller and plus numbered glasses make the image appear bigger.
      
    9. In the case of the complainant, there were conflicting situations due to inherent in born condition, which makes it possible to give either near zero spectacles number with greater image size difference of the two eyes as is explained above and to keep the image size similar between the two eyes. It was categorically mentioned in the para aforesaid that the above matters were fully explained to the complainant. The treatment prescribed by the Opposite Party No.2 is the correct treatment as per the Specialist’s opinion Dr.V.K. Dada in his book, the extract of which was attached with the reply. In nutshell the Opposite Parties No.1 & 2 averred in the last paragraph of Para No.4 of the preliminary objections as under:-
        
    “Hence the entire treatment given to the Complainant by the Respondents was in accordance with the latest Medical Science and the Complainant has improved from the stage he was before operation”. 
        
    10. On merits, the averments made in the complaint were replied to. The relevant paragraphs to which our attention was drawn are paragraphs 9, 10,11 and 12 to which reference may be made as under: 

    11 Para 9, the averments of the complaint were denied and it was submitted that it is evident from post operative recovery that spectacles number was prescribed within two weeks of surgery. The difference of spectacle number of the two eyes which has been since childhood was reduced to a great extent. The correct power of lens to be implanted is decided after taking into account both the eyes, if the size of both the eyes is similar and in the case of complainant his right eye was bigger than the left eye, hence there was a difference of image.
       
    12. In Para 10, it was averred after denying the averments made in Para 10 of the complaint that the complainant failed to understand the meaning of diabolical images which he kept on asserting. It is submitted that the double image or diplopia can result if lazy eye is again put to work in late stage of life. The deficiency in power of glasses of the left eye, which was not operated, cannot be commented upon. The use of normal zero powered glasses as suggested to the complainant for his right eye is a very valid suggestion and is being adopted by the complainant.
       
    13. It was further averred that the complainant started wearing glasses since he used to have double vision. However, he tried to wear the correct powered spectacle for his right eye during young age. If spectacle power of the right eye is to be matched with the left eye, that can be done at this stage but the persistence of double vision is likely to be there on account of image size disparity of two eyes due to difference in size.
       
    14. In Para 11, the allegations made in the complaint were denied as incorrect and it was sibmitted that the complainant cannot read even the top line of the chart before the operation and after operation his vision was brought to 6/18 (top 4 lines) in the right eye.
       
    15. In Para 12, it was averred, interalia, as under:
       
    “………….. The complainant was explained that spectacles will be needed after surgery with limitation of vision due to inherent condition. The complainant probably has not informed about his right eye being lazy eye since birth and also did not mention that he underwent YAG Lazer Capsulotomy for his right eye at New Delhi on 7th of July, 1997 without the advice of the operative Surgeon, which was not required at all and which is not taken atleast for three months after Cataract surgery. The power difference of the two eyes can be undertaken if the image size disparity factor is overlooked”.
        
    16. The case proceeds ex-parte against the Opposite Party No.3, New India Assurance Company Limited. The parties filed their respective evidence in the shape of their affidavit and were cross examined by the opposite counsel. The learned counsel for the complainant made his submissions before us which were replied to and given submissions were put worth by the learned counsel for the Opposite Parties No 1 & 2. We were taken through the record of the case in detail which included the reference to the pleading and to the affidavits and cross examination of the parties. Both the parties relied on the case law regarding the case being brought under the category of medical negligence and consequently the deficiency in service on the part of Opposite Party No.2 and the denial of it by the said party.
       
    17. Before proceeding to consider the case of the complainant regarding deficiency in service on part of Opposite Party No.2 and medical negligence on his part as the factor responsible for the persistent trouble in the eye of the complainant Mr. Yoginder Beri, it would be useful to refer to certain salient features of the case, as also to the evidence of the parties. It is undisputed that the complainant M r. Yoginder Beri had problem in his eyes and he consulted Opposite Party No.2 Dr. Rohit Grover Eye & ENT Hospital in May 1997. It is also not disputed that the Opposite Party No.2 Dr. Rohit Grover advised surgery in his right eye by the imparting of intraocular lens with phaco emulsification. For the service rendered by the Opposite Party No.2 Dr. Rohit Grover for himself and on behalf of Opposite Party No.1 the Hospital, the requisite fees was charged from the complainant and the same is not in dispute. It is also not eisputed that ultimately the right eye of Mr. Yoginder Beri was operated upon the date fixed i.e. 27/5/1997 at 6.30 a.m. at Hospital (Opposite Party No.1) by Opposite Party No.2 Dr. Rohit Grover. It is also not in dispute that the complainant himself went to have consultation from.Dr. V.K. Dada, Head of Department, All India Institute of Medical Sciences (AIIMS) New Delhi and that there he had some treatment of yag Laser and other tests.
       
    18. The dispute arises about the treatment by means of operation conducted by Opposite Party No. 2 Dr. Rohit Grover on the right eye resulting to the problem in the eye of complainant regarding his seeing double image and incompatibility of images in two eyes i.e. right side operated eye and the left side eye. The main stand of the Opposite Parties No. 1 and 2 is the right eye of the complainant Mr. Yoginder Beri was bigger than the left eye and the result of it was that he was having bigger image of the object in his right eye than the size of the image perceived through the vision in the left eye. According to the averments made in the reply of the Opposite Parties No.1 & 2 this problem of bigger eye of the complainant on the right side was since the childhood and was thus a problem which he was having since his birth and childhood. It may also be mentioned that at the time of the initial check up of the eyes of the complainant. Mr. Yoginder Beri was told by Dr. Rohit Grover about this abnormality and the fact that there was limited visual gain accepted in the right eye. The perusal of Annexure C-1 (2nd page) will go to show that an endorsement was made regarding the right eye by Dr. Rohit Grover, which is as follows:-
        
    “Limited visual gain Rt. Eye explained”.
      
    Dr. Rohit Grover filed his affidavit by way of evidence and deposed therein the allegations made in the written reply. The affidavit contains almost the same allegations which are mentioned in the written reply, a reference to which has already been made in the earlier part of our judgement. Dr. Rohit Grover was cross examined by the complainant. In his cross examination, he stated, interalia, as under:-
       
    “After examining the complainant, I found that he suffered from cataract in his both eyes. The right eye had more Cataract than the left eye. I advised surgery for the removal of the Cataract in his right eye. The complainant was advised in the alternative two treatments, the one was the surgery for Cataract with stiches and the other without stiches. I told the complainant that Phaco (Phaco) is the best available form of surgery regarding the treatment of Cataract. The difference between the two types of surgeries is that the Phaco surgery has the speedial recovery and is also safe than the other form of surgery for the removal of Cataract. The document numbered C-2 was prepared in my office regarding the treatment of the complainant. The attached document with C-2 has also been prepared by me. The number of eyes which are mentioned in the attached document were prescribed after examination of the complainant by me. I have seen the documents C-3, C-4 and C-5 which are dated 27/6/1997, 24/7/1997 and 27/5/1997 respectively and the same have been prepared by me in relation to the treatment of the complainant. 
       
    The complainant had come to me with the complaint that he was not comfortable with the spectacles containing the number given by me and I after examining him changed the prescription for the spectacles. The complainant again came to me with the grievance that he was still not comfortable with his eyes and wanted my opinion to consult another eye surgeon and have second opinion. I suggested him the name of Dr. Dada, Head of the Department. All India Institute of Medical Sciences (A.I.I.M.S.)”
       
    19. The complainant Mr. Yoginder Beri was cross examined with reference to his affidavit dated 15/7/1999. The relevant cross examination of the complainant may be referred to as under:
        
    “…..It is correct that I used spectacles even prior to this operation. The right eye was provided with only plain glasses and in the left eye. I possessed power glasses. During the process of operation, which was held on 27/5/1997, there might have been minor difficulty, otherwise, it was OK. It is correct that after one week, I was provided with power glasses. I am unable to contradict that Eye-ball of the right eye, in my case, is bigger as compared to the left eye.
        
    I thereafter went to the All India Institute of Medical Sciences (AIIMS) and consulted Dr. V.K. Dada. Besides, I also went to Government Hospital, Sector 32, General Hospital, Sector 16 and P.G.I. at Chandigarh. The Doctors in the aforesaid institutes verbally told me that the lens fixed by Dr. Grover, respondent No.2 is wrong and that I should contact him once again. However, none of the Doctors in the aforesaid Institutes gave me written opinion in this regard. I have gone through para No.4 of affidavit of Dr. Grover dated 23/7/1999 (Annexure R/) and it is correct. 
       
    It is correct that after the cataract operation, with the use of glasses, the vision was raised to 6/18. It is incorrect that before the operation, I could read 4th line. On the contrary, prior to operation I could read even first three lines. It is correct that after the operation eye-sight of my right eye improved.
       
    It is correct that at New Delhi, I also had a laser treatment. It was done in AIIMS. I don’t know that it was not permissible atleast for a period of three months after the cataract operation. I may add that it has no relevance with the merits of the case”.
       
    The complainant Mr. Yoginder Beri in his affidavit reproduced the averments made in Para 10 and averred as point,(a) about the adjustment by atleast one or two powers of the lens which is to be implanted in the eye by operation. This has referred to above that the averments made in Para 10 have been not admitted in the reply of Opposite Parties No.1 and 2 and the Opposite Party No.2 has in his affidavit also denied the same. In cross examination of Opposite Party No. 2 Dr. Rohit Grover, a suggestion was put to him as under:
       
    “….. The lens to be replaced is normally taken out on or before the date of operation, before being inserted during the surgery. The type of that looking to the condition of the eye of the complainant, the lens of the strength of 8 or 9 ought to have been used but due to negligence or mistake, the lens of the power of 12 was inserted in his right eye”.
       
    It appears that the word “denial” of the suggestion has been omitted to be mentioned. The statement in the cross examination is to be read in the light of affidavit filed by the deponent i.e. Dr. Rohit Grover and also the stand taken by him in his reply. Viewed from this angle, this cannot be stated to be the admission of Dr. Rohit Grover at any rate and it was not even argued by the learned counsel for the complainant. 
       
    20. A careful perusal of the statement of the complainant made in his cross examination will go to show that he could not contradict the fact that eye ball of his right eye was bigger as compared to the left eye. He also admitted as a fact that after cataract operation, with the use of glasses, his vision was raised to 6/18. He also stated that it was correct that after the operation, eyesight of his right eye improved. The complainant Mr. Yoginder Beri, as per his statement made in cross examination underwent laser treatment at AIIMS, New Delhi. He was not aware of the fact that it was not permissible at least for the period of three months after the cataract operation. Mr. Yoginder Beri, however, went on to state that it had no relevance with his case. It is also note worthy that the complainant Mr. Yoginder Beri not only consulted Dr. Dadda at AIIMS, New Delhi but also had consultation in various hospitals such as Government Hospital, Sector 32, General Hospital, Sector 16 and P.G.I. at Chandigarh. The complainant also admitted as a fact that none of the Doctors to whom he consulted after his operation gave any opinion in writing about the operation conducted by Dr. Rohit Grover being deficient dfor that Dr. Rohit Grover was medically negligent in performing the operation and in the implantation of the intra-ocular lens. Now since the complainant himself could not contradict the fact that his eye ball of the right eye was bigger as compared to the left eye, the statement of Dr. Rohit Grover in regard to the problems faced by a person having such kind of defected size of eye ball becomes quite relevant. It can not be said that the power of the lens implanted in the right eye of Mr. Yoginder Beri by Dr. Rohit Grover has not been done or proved by any reliable and cogent evidence of any specialist to be wrong and incorrect and thereby causing the problem said to be postoperative to the said eye of the complainant Mr. Yoginder Beri. At this place, it may be useful to refer though at the cost of repetition that the complainant had a definite improvement, even according to his own statement in the vision in his right eye and he was able to read the top four lines of the chart though he claimed in his cross-examination that even prior to operation, he could read top three lines which fact, he has not proved by any medical evidence of any eye specialist.
        
    20 Alongwith his reply, Dr. Rohit Grover has sketches as Annexure R-1 of (1) Normal Eye, (2) Myopia (Long eye) out of focus image. (3) Long Eye Myopia with low power IOL,Focussed image of larger size (4) Long eye with IOL and Minus Powered spectacle lens giving focussed image of reduced size (similar to normal).
        
    21. In support of his defence, Dr. Grover attached extracts from the book on I.O.L. and Phacoemulsification Secrets (Second Edition) by Dr. V.K. Dada, Professor of Ophthalmology, Dr. Rajendra Prasad Centre for Opthalmic Sciences, All India Institute of Medical Sciences, New Delhi, India published by Jaypee Brothers, Medical Publishers (P) Ltd. B-23/23B Ansari Road, Daryaganj, P.B. 7193, New Delhi 110 002, New Delhi. 
       
    22. Chapter 12 deals with power considerations in IOL and a reference is made to the following question and answers (marked with red ink by Opposite Party No.2 Dr. Rohit Grover)
        
    Q. State some relevant factors concerning intraocular implant power.
        
    Ans. 1. Patients involved in near work for most of the day may be over correct in implant to be without glasses for near. Minus spectacles should be given for distance.

    2. A Preoperative my ope should over corrected in implant to be with myopic glasses postoperatively.

    3. Fellow eye with good vision with glasses demands a similar spectacle power in the operated eye to prevent intolerable anisometropia.

    4. Fellow eye with gross diminution of vision is not considered in power calculation of implant.

    5. It is better to implant + 19.00 D standard powered implant if keratometry and axial length measurement facilities are not available because 80% of the implants are powered between + 18.00 to 20.00 D (Author’s observation).

    6. Chances of having ametropia more than 2.00 D is 5% and more than 5.00 D is less than 1%.
       
    23. Apart from it, extracts of book on “Refraction and Clinical Optics” edited by Aran Safir, M.D, Director, Institute of Computer Science, Mount Sinai School of Medicine of the City, University of NewYork, New York City has been annexed and reference has been made to the underlined portion under the heading “INTRAOCULAR LENS/SPECTACLE COMBINATIONS” which is reproduced as under:-

    “Most patients with intraocular lenses do require additional spectacle correction (27,28) and the net image magnification is the product of that induced by the intraocular lens and that of the spectacle. Since aniseikonia refers to a difference in the size of the retinal images of the two eyes. It is also necessary to consider what image magnification or minification is induced by the spectacle correction of the phakie eye….” 
       
    24. It will be relevant to bear in mind that after getting the right eye operated from Opposite Party No.2 Dr. Rohit Grover, the complainant Mr. Yoginder Beri consulted other eye surgeons at different hospitals mentioned above at Chandigarh and also consulted Dr. Dada at AIIMS., New Delhi and also had laser treatment and other tests which facts were not in the knowledge of Dr. Rohit Grover and the consultations were not made with the consent of the Opposite Party No.2. In other words, the complainant himself decided to have second and subsequent opinion and treatment after his operation aforesaid conducted by Dr. Rohit Grover. It is also significant to note that apart from the statement of the complainant.
         

  • M.P. BALAMANI v. M.A.R.K.M.H. & RESEARCH CENTRE
    (2001) CPJ 483
     
    KARNATAKA STATE CONSUMER
    DISPUTES REDRESSAL COMMISSION,
    BANGALORE

     
    Consumer Protection Act, 1986 – Section 14(1)(d) – Medical Negligence – Error of Judgement in Diagnosis – Compensation – Histopathology Cytology Report issued by opposite party on the biopsy specimen – Report diagnosed the case as – sclerosing adenosis, post inflamatory state and terminal ductal hyperpiasia - Examination of same slide and block about 40 days after disclosed that, – patient having an advanced breast cancer – Patient suffering from cancer confirmed - Error of judgment on part of opposite party established - Contention, wrong diagnosis recorded in the Histopatholoy Report resulted in avoidable sufferings and ultimate death of patient – Contention not acceptable – Error of judgment not contributed to the type of suffering which the patient had to undergo – Ailment if would have been detected 45 days earlier, position would have been no different – Opposite party absolved from the stigma of negligence – Complainant failed to establish deficiency in service, not entitled to any compensation.
     
    Held : Looking at the tenor of the complaint, the prime target is opposite party-4 Dr. Vasudeva Rao, Consultant Pathologist of the Bangalore Hospital, who had issued a Histopathology & Cytology Report on the biopsy specimen of Balamani sent to him from opposite party-1 hospital. The report (Ex.C4) diagnosed the case as “elerosing adenosis, post inflammatory state and terminal ductal hyperplasia”. The examination of the same slide and block at Kidwai Memorial Institute of Oncology about 40 days later however disclosed that “the patient was having an advanced breast cancer”. According to the complainants, the wrong diagnosis recorded in the Histopathology Report by opposite party-4 resulted in the avoidable suffering and ultimate death of the patient. (Para 18)
     
    Held further : It is borne out from records that while Ex.C4 was issued on 20/10/1994, Ex. C11 was issued by Kidwai Memorial Institute on 3.12.1994. The crucial point for consideration in this backdrop is whether the type of cancer as revealed on 3.12.1994 could have been halted or eliminated had it been correctly diagnosed on 20.10.1994 i.e., about 45 days earlier. Dr. Lakshmaiah has spoken on this aspect very clearly in the following words:
     
    ” In breast cancer 30 to 40 days would not make any difference as regards the stage “.
     
    With regard to the stage in the development of breast cancer, C.w. 2 has in her chief-examination clarified as follows:
     
    ” As per Ex.C11, the grade of the cancer of the breast relating to the slide in question is Grade-III. Grade III suggests that the cancer of the breast was in any aggressive form “.
       
    This form of aggressive cancer did not respond to chemotherapy. Hence if it had been detected about 45 days earlier, the position would have been no different as deposed by C.W.3. This leads us to the inevitable conclusion that even if opposite party-4 had come out with the correct diagnosis, there would have been no salvation for the patient which is most unfortunate. But on that account the complainants have no case to allege that but for the negligence of opposite party-4 and by extension opposite party-3 the patient would have been cured and she would have been alive today. The evidence adduced by C.W.2 and C.W.3 would indicate srongly that an error of judgment in opposite party-4 had not contributed to the type of suffering which the patient had to undergo and this factory contributes largely to absolve opposite party-4 of the stigma of negligence attributed to him by the complainants. Considering the totality of circumstances brought into being on reocrd, we have no hesitation to say that opposite party-4 and by vicarious extention opposite party-3 cannot be construed as negligent in diagnosing the condition of complainant No.1. Rather, we are inclined to believe that opposite party No.4 committed an error of judgment while issuing the histopathology report with regard to the existing condition of the patient which cannot be termed as deficiency of service. (Para 35, 36 & 37)
     
    Held further: If that be so, it has to be held in conclusion that the complainants have failed to establish any deficiency of service within the meaning of that expression under the Consumer Protection Act, against opposite parties by acceptable evidence. It is true, we have found an error of judgment in opposite party-4, but such an error cannot, in the context of the surrounding circumstances of the case, be construed as negligence. (Para 41)
     
    Result: Complaint dismissed.
     
    ORDER
     
    Mr. Abdul Perwad, Member – This is a complaint filed under Section 12 r/w Section 17 of the C.P. Act, 1986 alleging deficiency of service on the part of four opposite parties including 2 hospitals. The facts of the case as narrated in the complaint are as follows:
     
    Mrs. Balamani, aged about 31 years, with the second complainant got herself admitted opposite party-1 hospital on 17.10.1994 on account of a pain in the left breast while feeding her 3 months’ old child. There was a lump in her breast which was examined by Dr. Srikant opposite party-2 and diagnosed as granulome and hence a biopsy was conducted and the specimen was sent to opposite party-3 Bangalore Hospital for pathological examination. Dr. Vasudeva Rao (opposite party-4), Pathologist opposite party-3 hospital diagnosed the ailment as Sclerosing Adenosis and a report to that effect was issued. Opposite party-2, on the basis of the report, diagnosed that complainant-1 was not suffering from cancer of the breast and hence discharged her on 20.10.1994, assuring that it was an infection.Certain drugs were also prescribed at the time of discharge which were however asked to be discontinued about 20 days later.
     
    2. It is the case of the complainants that the patient did not register any improvements; on the other hand her condition worsened. She developed swelling of the left hand and lumps developed in the lymph and neck. Hence, on advise of well-wishers, she approached Kidwai Memorial Institute of Oncology. The slide and paraffin block were obtained from opposite party- 3 hospital and submitted for examination. Kidwai Memorial Institute, after due examination, diagnosed the ailment as “Invasive ductal carcinoma, GR-III of the breast”. It is alleged that when complainant-1 approached opposite party-1 in the month of October, 1994 she had developed cancer of the breast and by 3.12.1994, the disease had spread to the lymph nodes and the neck region. According to the complainants this could have been prevented but for the wrong diagnosis of opposite party-3 and opposite party-4.
      
    3. At the Kidwai Memorial Institute complainant-1 was treated with chemotherapy by Dr. Lakshmaiah, but no surgery was undertaken since the disease had spread intensively. It is the case of the complainants that such a spreading could have been prevented, had it been properly diagnosed by opposite party-4. In fact, it would have been possible to remove the cancerous growth from the breast before it could spread to other areas and the patient would have recovered completely. It was the type of ailment which a beginner in the field of pathology would detect, but on account of the negligence of an exerienced opposite party-4, and the staff of opposite party-3, complainant -1 came to be the victim of a dreaded, incurable disease, opposite party-1 and opposite party-2 are also privy to such a happening, since it is they who directed the complainants to opposite parties-3 and 4 to get a pathology report. They had a duty to cross-check the diagnosis of opposite parties-3 and 4 which they have failed to do. Hence it is alleged that opposite parties 1 to 4 are all responsible for the gruesome ailment to which complainant-1 was subjected to.
     
    4. It is further alleged that apart from a sum of Rs. 60,000/- already spent on treatment, much more will have to be spent on complainant-1consistent with the sinister nature of the ailment which called for expensive treatment. The financial burden on complainant-2 had proved deplorable for the further reason that he was at that point of time unemployed. The children, one of whom was hardly 10 months’ old, was to be looked after by compnt-2 since compnt-1 was not able to do it. They were totally deprived of the care of the mother which in itself was a cause of hardship and trauma resulting in acute mental distress and anxiety to all concerned. Since such an avoidable misery was the direct outcome of the negligence of the opposite parties, they are liable to pay appropriate damages to the complainants, which the opposite parties have declined when a lega, notice was issued to them. The complainants, therefore, prayed that the opposite parties be directed to pay a sum of Rs.10 lakhs by way of damages, together with interest @ 18% p.a. from the date of complaint till payment.
     
    5. In the objection filed, opposite parties-3 and 4 refused these allegations strongly on the following lines:
      
    (1) When complaint-1 reported at the Bangalore Hospital, her last child was 10 months old. Complainant -1 had seen lump in her breast (L) when the child was 3 months old and at that point of time itself she had pain while feeding the child. Nevertheless, she chose to report at opposite party-3 hospital after 7 months, by which time the process of advancement of the damage to a point of no return had set in. This is a costly negligence for which complainants alone are responsible.
     
    (2) The reference made by opposite party-1 hospital to opposite party-3 hospital to conduct a histopathological examination was in a small piece of paper, with virtually no information about the clinical condition of the patient. The referring doctor had suggested cancer of the breast and infective granuloma as the two alternative clinical diagnosis of the patient. Medical jurisprudence will testify that in such a situation the pathologist will generally lean on a common cause while making a diagnosis in a difficult situation. Histopathological examination is a long drawn  process which takes about 2-3 days before a report is drawn up. In the instant case all possible precautions have been taken to arrive at a correct conclusion.
     
    (3) The surgeon or the doctor who attends to the patient is responsible to corroborate the clinical picture and the histopathological examination report. It there is variance, he should obtain a second opinion or reexamine the patient to eliminate possibility of malignancy involving any destructive procedure.
     
    (4) In the instant case diagnosis was made by Kidwai Memorial Institute of Oncology. If only review of the diagnosis was sought, opposite parties-3 and 4 also could have diagnosed the disease as cancer.
      
    (5) There was an interregnum of only 40 days between the histopathology by opposite parties-3 and 4 and the final diagnosis at Kidwai. At that time cancer had already spread to different parts of the body of the patient. The gap of 40 days makes absolutely no difference as the disease process had reached the status of micro-metastasis when the patient first noticed the lump and pain in her breast 7 months earlier.
     
    (6) The pathological report issued by opposite parties-3 and 4 clearly indicates that malignancy cannot be ruled out and the patient needs to be followed up in that direction. It is difficult even for an experienced pathologist to distinguish a malignancy from an acute inflamatory lesion.
     
    (7) The work of a pathologist consists of examining the tissue and have a microscopic view to identify the disease process. The opinion of the pathologist is neither final nor conclusive since it is based on either a tissue or a slide and he has no total picture of the clinical condition of the patient. Despite these constraints, opposite parties 3 and 4 have opined that the patient had a pre-malignancy condition which should be treated to cure. Hence no negligence can be attributed to opposite parties 3 and 4.
     
    (8) From the very nature of the complexity of this case which is bound to involve complicated medical issues calling for expert evidence, the issues involved are to be sorted out in a Civil Court and not in a summary proceedings before this Commission.
     
     6. Opposite parties 1 and 2 took up the following defence vis-à-vis the allegations levelled against them:
     
    (a)  The patient was discharged from opposite party-1 hospital and was further treated as an out-patient for Sclorising Adenosis which is based on the pathology report. According to the said report it was not a case of the cancer of the breast but Sclorising Adenosis and hence malignancy was ruled out. Hence the patient was discharged on 20.10.1994, giving her certain antibiotics.
     
    (b)  On 25.10.1994 when the patient came to remove the sutures, a swelling in her left arm was noticed and hence Dr. Kamath, a physician of opposite party-1 hospital was consulted. He advised higher antibiotics in view of the pathological report of opposite party 4 and the patient was advised to come back again after a week for follow-up.
        
    When she came again as advised no increase in swelling was noticed and hence the antibiotics were discontinued and she was asked to come back again after a week. She however failed to report thereafter.
     
    (c)  There is no deficiency of service on the part of opposite parties 1 and 2 whatsoever and hence the contention of the complainants that opposite parties 1 and 2 whatsoever and hence the contention of the complainants that opposite parties 1 and 2 are also jointly and severally responsible with opposite parties 3 and 4 for whatever happened to complainant- 1 is not based on facts but a motivated allegation.
      
    (d)  Opposite party-1 hospital is run by the Trust created in the memory of Ravi Kirloskar where only nominal charges are levied for the services rendered. Hence opposite party-1 hospital falls outside the purview of the expression ‘service’ as defined in Section2(1)(d) of the C.P. Act, 1986 and hence the complaint is not maintainable against opposite party-1.
     
    (e) The case involves complicated recording of evidence by experts and other elaborate process and as such it is not liable to be adjudicated upon in summary proceedings before this Commission. The complainants have to seek their remedy in a Civil Court for the redressal of their grievances.    
      
    7. For these and other reasons set out in the statement of objections, filed, opposite parties 1 and 2 prayed that the complaint be dismissed as shorn of merits.
     
    8. Opposite parties filed their version. Opposite parties 1 and 2 filed their affidavit evidence with certain documents. Exs.C1 to C4 and C6 to C105 were marked for the complainants with consent. Exs.R1 to R10 were marked with consent for opposite parties 1 and 2, while Exs.R11 to R20 were marked for opposite parties 3 and 4, also with consent.
     
    9. Complainant 2 filed his affidavit (C1 had died in the meantime and as such her name was deleted from the complaint by an order of this Commission). In support of his case Complainant 2 has examined himself as C.W.1. Two witnesses, viz., Dr. Teena Ramarao and Dr. K.C. Lakshmaiah were examined as C.W.2 and C.W.3 respectively. On behalf of opposite parties Dr. Srikanth Jagirdar, Opposite party 2 is examined as R.W.1 and Dr. P. Vasudeva Rao, opposite party 4 is examined as R.W. 2.
     
    10. We have heard the arguments of Mr. T.R. Raghupati, learned Counsel for the complainants, Mr. K.M. Basavaraj, learned Counsels, for opposite parties 1 and 2 and Mr. Manojkumar for opposite parties 3 and 4.
      
    11. In the context of the various contentions raised and the issues highlighted by the learned Counsels, the following points arise for consideration :
      
    (1) Whether the complainants had to seek their remedy in a Civil Court in view of the complex nature of the case as contended by the opposite parties?
     
    (2) Whether the complainants have established deficiency of service on the part of opposite parties or any among them within the meaning of that expression under the C.P. Act by acceptable evidence?
      
    (3) Whether the complainants are entitled to any compensation?
     
    (4) What order ?
     
    12. Point No.1: In a case of alleged medical negligence necessary facts are to be established by evidence, which may mostly involve examination of witnesses and their cross-examination. If every case involving examination-in-chief and cross-examinations are to be construed as involving complicated medical issues, and if on account of such presumption every such case is to be referred to a Civil Court, it would virtually amount to taking away medical negligence cases from the purview of the C.P. Act. That was evidently not the view of the Hon’ble Supreme Court while taking a decision in Indian Medical Association v. V.P. Shantha & Ors. A parameter has nowhere been laid down for the purpose of deciding precisely when a case involving alleged medical negligence is to be referred to a Civil Court and when it can be adjudicated upon by the Consumer Forums. In the first instance, what are the issues which cannot be decided upon in a summary proceedings are not clearly defined anywhere, nor any rule of the thumb is indicated in any judgment pronounced till now. That being the case, it is necessarily within the realm of the Consumer Forums or the Commission, as the case may be, to decide whether it could rise up to the task or the issues involved would be too complicated to be decided in a so-called summary proceedings and hence to be safely referred to a Civil Court. In the instant case, having regard to the type of allegations made and the issues surrounding such allegations, we had no occasion to believe that it is beyond this Commission to adjudicate upon this case. Hence, apropos the contention of the opposite parties that the complainants have to seek their remedy in a Civil Court, we hold that this Commission is well equipped to deal with this case. In the result, we answer point No.1 in the negative.
       
    13. Point No. 2: Under this point it will have to be seen whether the deficiency attributed by the complainants to the opposite parties or for that matter to any of the opposite parties can be said to have been established by acceptable evidence.
      
    14. It is not in dispute that Balamani w/o M.Lakshminarasimhaiah was admitted to opposite party 1 hospital on 17.10.1994. It is also not disputed that a biopsy of her left breast was conducted and the specimen was sent to opposite party 3 hospital for pathological examination. It is also not disputed that a histopathological report on the basis of the examination conducted was issued. It is also not disputed that Balamani was discharged from opposite party 1 hospital on 20.10.1994. The dispute however centres round the alleged negligence on the part of the opposite parties in diagnosing and treating Balamani who had noticed a lump in her breast which pained while she fed her child.
       
    15. Mr. T.R. Raghupati, learned Counsel for the complainants, during the course of taking us through the facts of the case submitted that it was opposite party 3’s report which had laid the foundation for the unfortunate incident leading to the untimely death of Balamani. The learned Counsel pointed out that despite no denial in the reply notice, opposite party 4 had denied in his cross-examination that he had signed the Histopathology and Cytology Report (Ex.C4) of the Bangalore Hospital. It was pointed out that in his affidavit evidence opposite party 4 had disowned the report contending that it was signed by Dr. Jinka Subramanyam. The learned Counsel pointed out that it is only an after-thought to avoid responsibility arising out of a wrong diagnosis, by which the changes of saving a life was lost. The learned Counsel wondered what was it that the Hospital Authorities did when they found out that their Chief Pathologist had not signed his own report. Dr. Teena Rama Rao, (C.W.2) has during her cross-examination stated very clearly that the slide examined by opposite party 4 clearly showed that cancer was aggressive (Grade-III). The same opinion was expressed by C.W. 3, Dr. Lakshmaiah that the patient had advanced cancer, but the report of the Bangalore Hospital does not suggest any cancer in the patient. According to C.W. 3, the ailment could have manifested about 5 years earlier. The learned Counsel submitted that despite such strong indications in the slide, opposite party 4 had given a report of no incidence of cancer which can only be born out of indifference in discharging his duties as a pathologist. The learned Counsel also submitted that having known that he had erred beyond redemption, opposite party 4 has been trying to take shelter behind the native contention that he was not the author of the report since, as he put it during his evidence, he does not allow anybody to sign for him. The learned Counsel pointed out that the role of opposite party 2 does not attract as much stigma since he had relied faithfully on the report of opposite party 4 yet he cannot be in the clear entirely since he had failed to double-check what opposite party 4 had to say, particularly when the patient had familiar symptoms.
      
    16. Mr. Manojkumar, learned Counsel for opposite parties 3 and 4 on the other hand argued that there is no merit in the contentions raised by the learned Counsel for the complainants in as much as his whole story falls to the ground when viewed from the proper perspective. In the first instance, the learned Counsel submitted, it is the bounden duty of the referring ddoctor to provide the history of the patient with all necessary clinical details to the pathologist which has not been done in this casewith a result, a report had to be produced on the basis of just a slide and a block. It was pointed out that opposite party 4 in his affidavit-evidence has clearly stated that Dr. Jinka Subramaniam had signed the report and not him, but the complainants had failed to implead Dr. Jinka Subramaniam for reasons best known to them. Moreover, it is not correct to say that Ex.C4 is bereft of any reference to cancer. In fact, the report very clearly indicated that the symptoms noticed may be a precursor to lobularcarcinoma which is enough warning on an impending cancer which was not well taken either by opposite parties-1 and 2 or by complainants themselves. To substanciate his contention that the patient had no cancer at the time when opposite party No.4 conducted the pathological examination, the learned Counsel invited our attention to the deposititon of Dr. Teena Rama Rao who stated that the cells had proliferted in the biopsy specimen in a benign way which only means that no malignancy was visible at that point of time. It is contended that opposite parties 3 and 4 have dutifully and painstakingly brought out a report indicating clearly the chances of cancer  setting in if effective steps are not taken, notwithstanding the constraints of not having the benefit of the patient’s history and hence no negligence could be attributed to them for whatever reason.
       
    (a)  Mr. K.M. Basawaraj, learned Counsel for opposite parties-1 and 2 submitted in his turn that Balamani came to opposite party-1 hospital with a lump and prickly sensation in her left breast for which a biopsy was done on 18.10.1994 and the specimen was sent to opposite party-3 hospital for a histopathological report. When the report was received, it revealed that the lump in the breast was a benign growth and hence the patient was given necessary medication and was advised to come for follow-up.  The learned Counsel contended that this was the normal procedure followed in a case of this nature. Opposite parties-1 and 2 had adopted the time honour procedure of depending on the histopathological report for which opposite parties-1 and 2 cannot be faulted. The learned Counsel invited our attention to the deposition of Dr. Lakshmaiah (C.W. 3) that the opinion of the Pathologist is conclusive. The learned Counsel while taking us through the contents of Ex.C4 emphasised that for the type of observations made in the report, opposite party Nos. 1 and 2 has no option whatsoever to go through any line of treatment other than what was actually given to the patient. It was submitted that the patient was treated with the best possible case in opposite party-1 hospital and hence there could be no iota of blemish or negligence attributable to it for any reason whatsoever. In support of his contention the learned Counsel relied on the following case laws while summing upon his argument on the above lines.
     
       (1)  AIR 1996 SC 2111
     
       (2)  AII Eng. Reporter 1957 (2) P. 118
     
       (3)  AIR 1969 SC 128 (para 11)
      
       (4)  AIR 1998 SC 1801
      
    17. We have given due consideration to the detailed submissions made on either side. At the very outset,   it is necessary to have a clear perspective with regard to the approach to be adopted in a case of this nature. It has to be stated at this juncture itself that the standard of care expected of a medical man is neither too high nor too low. What the law expects from him is neither a miracle nor achieving the impossible but exercise of a duty of care expected of a reasonably skilled practitioner who performed the functions he is called upon to do diligently and conscientiously. The path of a medical man is not strewn with roses all the way; it is thorny most of the time, albeit what a patient expects from him, but law looks at neither of these aspects, but evaluates his performance on the basis of certain parameters. The Hon’ble Supreme Court in Dr. Laxman Balkishan Joshi v. Dr. Trinbak Bapu Godbole, reported in AIR 1969 SC 128 (quoted in D. P. Bhandhari v. Sir Ganga Ram Hospital, reported in II (1991) CPJ 409), has laid down the following criteria to make such evaluation:
      
       (i)                 A duty of care in deciding whether to undertake the case,
       (ii)                A duty of care in deciding what treatment to give, and
       (iii)               A duty of care in the administration of that treatment.
       
    A breach of any of these duties gives a right of action to a patient for negligence. These tests presuppose that a medical practitioner must bring to his task a reasonable degree of knowledge and skill and perform his duties with a reasonable degree of care.   The super-speciality atmosphere prevailing in high-tech corporate hospitals was not susceptible of adding much to these basic concepts of duties required of a medical practitioner, except perhaps broadening the sphere of treatment to some extent. Even today, the test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he/she has been proved to be guilty of such failure as no doctor of ordinary skill could be guilty of when acting with reasonable care.
       
    18. It is necessary to approach the instant case bearing these guidelines in mind in order to arrive at a conclusion whether the negligence attributed to the opposite parties or for that matter to different opposite parties individually can be said to have been established by acceptable evidence.  Looking at the tenor of the complaint, the prime target is opposite party-4 Dr. Vasudeva Rao, Consultant Pathologist of the Bangalore Hospital, who had issued a Histopathology & Cytology Report on the biopsy specimen of Balamani sent to him from opposite party-1 hospital. The report (Ex. C4) diagnosed the case as – sclerosing adenosis, post inflammatory state and terminal ductal hyperplasia. The examination of the same slide and block at Kidwai Memorial Institute of Oncology about 40 days later however disclosed that “the patient was having an advanced breast cancer.” According to the complainants, the wrong diagnosis recorded in the Histopathology Report by opposite party-4 resulted in the avoidable suffering and ultimate death of the patient. Para 8 of the complaint describes this aspect in the following words:
      
    “It is submitted that if the ailment had been diagnosed properly at the earliest stage it would have been possible to remove the cancerous growth in the left breast. It would have prevented further spreading of the disease. Complainant No.1 would have fully recovered from the ailment. Solely on account of the wrong diagnosis made by the 3rd and 4th respondents, the complainant No.1 has suffered immeasurably and the disease has now become incurable. Even a Pathologist with little experience would have been able to diagnose the ailment correctly. It is abvious that the wrong diagnose is the result of sheer negligence on the part of the 4th respondent and the staff of the third respondent hospital”.
      
    19.
    It is this specific allegation which calls for examination on the basis of evidence, both documentary and oral, adduced in this case.  Opposite party-4 has taken the contention that Ex.C4 has not been signed by him, but it is signed by Dr. Jinka Subramaniam who was also a Pathology Consultant in opposite party-3 hospital. During the course of his cross-examination by Mr. Raghupathi,  learned Counsel, opposite party-4 has spoken as follows:
      
    “However in my affidavit filed on 15.5.1999, I have stated that I have not given the report and that I have not signed that report. In Ex. C4 the signature above my name is not my signature”.
      
    In continuation, opposite party-4 has also stated as follows:
      
    “I did not normally allow anybody to sign for me”.
     
    However, he makes the following admission:
     
    “I have not stated that I have not given the report at Ex.C4, either in the reply given to the legal notice or in the version filed by me or in the first affidavit which I filed before this Commission”.
        
    20. A reading of these depositions in conjunction would hardly fail to reveal the fact that opposite party-4 who had missed out  on hiding behind the shadow of his colleague in the first instance had come wise later to the situation where his colleague had signed for him.  He admits that Dr. Jinka Subramanyam is “shown to have signed for me”. In Ex. C4 the name of opposite party-4 is typed out at the bottom and Dr. Jinka Subramanyam has signed it “for” Dr. T. Vasudeva Rao, M.D. Opposite party-4 has in his deposition stated that he did not “nornally” allow anybody to sign for him, which means that exceptions are made. In the combined version filed by him and opposite party-3, after explaining that opposite party-3 hospital had two distinguished Pathologists, namely Dr. T. Vasudeva Rao and Dr. Jinka Subramanyam, it is stated as follows:
     
    “The Pathologist of Bangalore Hospital who examined the tissue did make every effort to reach a conclusion”.
       
    21. If at all the test was conducted by Dr. Jinka Subramanyam, this was the occasion to mention it. However the identity is not divulged here since, apparently, opposite parties-3 and 4 were testing the water as to the course the case would take in due course. At a later stage when it was evident that things would zero in on opposite party-4 in particular, the aforementioned contention was raised in the affidavit filed by opposite party-4 on 15.5.1999 which was not taken in the first affidavit he filed on 1.7.1997. Such an intention is entirely evident from the material on record. Even opposite party No. 2 has stated in his evidence. “However my information is that Dr. Vasudeva Rao did the Pathology test”. Hence, taking into account the totality of circumstances, we have no hesitation to hold that opposite party No.4 is the author of Ex.C4, and Dr. Jinka Subramanyam has signed it on behalf of opposite party-4 due to unexplained exigencies.
      
    22. If that be so, what is to be seen next is whether Ex.C4 is a precurser to the course of events that took place later thereby, according to the complainants, the patient had to undergo avoidable pain and suffering which ultimately lead to her untimely demise. In order to get an insight into the import of the Report (Ex.C4), particularly when its contents have been the subject-matter of not only diverse pleadings but also expert opinion of varying shades, it would be in the fitness of things to reproduce it. The body of the report reads as follows:
      
    “Cross Examination: Two firm to soft grey nodular pieces of tissue measuring 1×0.5 x 0.5 cms and 0.5 x 0.5 cm are received. They are sectioned and processed in toto.
     
    Microscopic Examination : Aggregates of compressed ducts with surrounding fibrous tissue are seen. Inflammatory cells predominate around them and some dilated ducts. The scarring gives the appearance of a sclerosing adenoma. A terminal duct hyperplasia is seen. It may be a precursor of labular carcinoma. Follow up of this case is suggested.
      
    Microscopic Diagnosis :
    (1) Sclerosing adenosis, post inflammatory state.
    (2) Terminal ductal hyperplasia (See microscopy above)”
      
    23. The report also indicates that the preopposite party diagnosis of the referring doctor, namely opposite party-2 was “Ca Breast”, “Chronic infective granuloma”. According to opposite party-4 these are two alternative diagnosis on the basis of which he was called upon to give a histopathology report of the specimen sent to him. He was contended that even though the referring doctor is supposed to give him the background material of the case, opposite party No.2 has not given him any details, with a result, he was contrained to formulate his report on the basis of what he was in the slide and block sent to him. He has detailed the constraint in which he had to issue Ex.C4 in para 3 (ii) of the joint-version filed by him and opposite party-3, which reads as follows:
       
    (ii) The reference made to the Bangalore Hospital from Ravi Kirloskar Hospital, was to conduct a histopathological examination, was in a small piece of paper with virtually no information about the clinical condition of the patient. The referring doctor has put both the cancer of the breast and the infective granuloma as the two alternative clinical diagnosis of the patient. As the first complainant mother of a small child and as she was breast feeding the child the commonest cause for such pain in the breast was the infection of the breast. This aspect is made clear as one of the diagnosis by the referring Surgeon. The medical jurisprudence would testify that in such a situation the pathologist would generally lean on a common cause while making a diagnosis in a difficult situation. If there is any error of judgment, it is both natural and permitted by the referring Surgeon that the clinical picture and clinical diagnosis strongly suggested the presence of infective process in the breast”.
      
    24. On this aspect opposite party-2, Dr. Srikanth Jagirdar has not come out with any explanation in his affidavit. He has only said that “the disease was diagnosed as “Ca Breast (L)” “chronic infective granuloma” and hence “the tissue was sent to the 3rd respondent hospital for histopathological examination on the same day”. He has nowhere come out with a contention that it was not incumbent on him to inform the pathologist about the clinical condition of the patient. It is seen that Ex. R19 which is the requisition slip sent by opposite party2 to opposite party-3 hospital requesting for a histopathology report does not contain any information regarding the clinical condition of the patient. It is therefore, evident that opposite party-4 had no feed back from the referring doctor with regard to the case history of the patient or her clinical condition at the time when he received the requisiton from opposite party No.1 hospital, except the pre-OP diagnosis of opposite party-2 that the patient had either cancer of the breast or chronic infective granuloma.
      
    25. “Granuloma” according to Oxford Concise Medical Dictionary is a mass of granulation tissue produced in response to chronic infection, inflammation, a foreign body or to unknown causes”. In other words, it is not a malignant mass. Hence opposite party-4 had to keep in view two options while examining the slide and the block sent to him. According to him histopathological examination is a long drawn process which takes atleast 2-3 days before a report is drawn up. The work of a pathologist consists of examining the tissue and to have a microscopic view to tell the disease process that is reflecting in a patient. His opinion is neither final nor conclusive as he is totally handicapped regarding the total picture of the patient as he is given either a tissue or a slide to work on and nothing else. In the instant case, according to him even the referring doctor was not helpful in providing necessary clinical inputs of the patient, with a result, his task was made extremely difficult. Cancer is a concealed disease which in many cases is not apparent to the naked eye. Even the attending doctor or surgeon infers on the disease and its stage preliminarily from the oral complaints of the patient and from his examination and lab reports. In such circumstances, it is stated, the tissue and the slide alone cannot give a full picture to make a total or final diagnosis. Hence it is the case of opposite party-4 that there is enough scope for an error of judgment.
      
    26. What might be an error of judgment, if at all, for opposite party-4 is negligence par excellence to the complainants. In para 6 of the complaint the following specific allegation has been made:
      
    “After examination of the very same slides and paraffin blocks by the Kidwai Memorial Institute of Anchology the ailment was diagnosed as Invasive Ductal Carcinoma GR III of the breast. When complainants had approached the first respondent in the month of October, 1994 itself she had developed cancer of the breast. By 3.12.1994, the disease had spread further to the lymph nodes and neck region. This resulted solely on account of wrong diagnosis made by the respondents 3 and 4”.
      
    27. Opposite parties-3 and 4 have strongly reputed this allegation on the basis of the very Ex.C4 on which the complainants have relied upon to make the type of allegations referred to above. According to opposite party-4 he has not ruled out cancer in his report entirely. Ex.C4, clearly indicates that the features seen in his microscopic examination “may be a precursor of lobular carcinoma”, which means that the symptoms of impending cancer was evident in the tissue examined. In view of such possibility it is stated, he had suggested follow up of the case which in itself is ample testimony that he had diagnosed possible occurrence of cancer in the patient, but at the moment of examination what was seen was Sclerosing adenosis in post inflammatory state and terminal ductal hyperplasia.
      
    28. Dr. Teena Rama Rao, Asst. Professor of Pathology (C.W. 2) who conducted the examination of the slide and the paraffin block at the Kidwai Memorial Institute and came to the conclusion that the patient was suffering from “Invasive ductal carcinoma GR-III breast intraduct comedocarcinoma present” has, in her evidence spoken abouty Ex.C4 in the following terms:
      
    It would mean that the cells of the breast have proliferated in number in a benign form. We call it as benign proliferative breast disease.
     
    It is also reflected therein that the same could be a pre-cancerous stage”.
     
    This evidence corroborates the contention of opposite party-4 that his report is not benefit of any reference to cancer but an observation has indeed been made by him warning the onset of cancer in the patient for which he has also suggested follow-up. C.W.2 however does not believe that opposite party-4 had any constraints for want of clinical inputs of the patient from opposite party-1 hospital since, in her cross-examination she has stated that “in her opinion Ex.R-19 itself contains adequate clinical history”. As far as the observation in Ex.C4 (which contradicted Ex. C11A) is concerned C.W.2 observed, “I would only say it is the opinion of other pathologist”.
     
    29. The fact that the patient was suffering from cancer and not from benign proliferative breast disease as diagnosed by opposite party No.4 has been confirmed in his chief-examination by Dr. K.C. Lakshmaiah, Asst. Professor of Oncology in Kidwai Memorial Institute (C.W. 3) in the following words:
      
    “The patient was having an advanced breast cancer. In medical terminology it was stage 4 form”.
      
    This evidence corroborates the diagnosis at Ex.C11A (except for the stage of the disease which is mentioned as Grade III in Ex. C11A) which goes to establish that the patient was indeed suffering from cancer of the left breast. With regard to the question as to the probable period during which the patient could be said to be suffering from the said ailment, C.W. 3 has spoken in the course of his cross-examination as follows:
      
    “Having regard to the stage of cancer as on 6.12.1994, that is the day on which the patient came to our hospital, it is my view that the lady must have started development of malignant-clone substances more than five years ago”.
      
    30. This piece of important evidence, coming as it does from a doctor under whose supervision the patient was administered chemotherapy and even salvage chemotherapy at a later stage proves conclusively that the patient was suffering from cancer of the left breast but opposite party-4 has not diagnosed it as cancer, but has concluded that it was a case of benign proliferative breast disease, which in his own words is described as “Sclerosing adenosis, post inflammatory state terminal ductal hyperplasia”. However it has to his credit that he has not entirely ruled out cancer, since he has expressed his apprehension that the condition revealed in histopathology is a precancerous stage for which he had suggested a follow up.
      
    31. These facts which have crystallised from the material placed on record would lead to an inevitable conclusion that there has been a slip on the part of opposite party-4 in coming to the right conclusion with regard to the nature of existing ailment in the patient as the biopsy specimen disclosed. In his own words, it may amount to an error of judgment but not a case of negligence as contended by the complainants. In para 3 (ii) of the joint-version, opposite party 3 has stated on behalf of opposite party-4 as follows:
      
    It is more than possible that the pathologist given the benefit of doubt in the first instance. But error in judgment would not be an act of negligence in medical parlance”.
      
    32. It is in the context of this submission that we need to recall the following words of Load Denning in Res. v.Minister of Health, (1954) 2 QB 66:
      
    “One final word. These two men have suffered such terrible consequences that there is a natural feeling that they should be compensated. But we should be doing a dis-service to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due case for the patient at every point, but we must not condemn as negligence that which is only a misadventure” (Emphasis supplied).
       
    33. When a similar issue involving error of judgment in Whitehouse v. Jordan, I (1981) All ER 267, came up in appeal before the House of Lords, a circumstantial variance in such error was emphasised. Lord Fraser pointed out thus:
       
    “The true position is that an error of judgment may, or may not, be negligence, it depends on the nature of the error. It it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made then it is not negligence”. (quoted in M/s. Spring Meadows Hospital v. Harjol Ahluwalia, reported in AIR 1998 Supreme Court 1801 ” para 9)
       
    34. Tested by the touch-stone of these observations, it has to be said that opposite party No.4 is guilty of an error of judgment in diagnosis which does not amount to negligence, particularly when he has not entirely ruled out cancer. The natural question that arises in the context of the apparent error of judgment by opposite party-4 is to what extent a correct diagnosis would have contributed to the welfare of the patient. We have already alluded to the deposition of Dr. Lakshmaiah who has stated very clearly that having regard to the stage of cancer as on 6.12.1994 the development of malignant clone substance must have started in the breast of the patient more than 5 years earlier. When the patient was examined in Kidwai Memorial Institute, she was suffering from Grade-III cancer, which was not susceptible of being removed even by surgery. It was a stage where the patient did not respond even to chemotherapy. If the patient was in such a condition, whether she could have been helped if opposite party-4 had correctly diagnosed her case about 45 days earlier is the million dollar question which needs to be answered before opposite party-4 is to be labelled as entirely responsible for the suffering and ultimate death of the patient.
      
    35. It is borne out from records that while Ex.C4 was issued on 20.10.1994, Ex.C11 was issued by Kidwai Memorial Institute on 3.12.1994. The crucial point for consideration in this backdrop is whether the type of cancer as revealed on 3.12.1994 could have been halted or eliminated had it been correctly diagnosed on 20.10.1994 i.e. about 45 days earlier. Dr. Lakshmaiah has spoken on this aspect very clearly in the following words:
      
    “In breast cancer 30 to 40 days would not make any difference as regards the stage”.
       
    36. With regard to the stage in the development of breast cancer, C.W. 2 has in her chief examination clarified as follows:
     
    “As per Ex.C11, the grade of the cancer of the breast relating to the slide in question is Grade-III. Grade III suggests that the cancer of the breast was in an aggressive form”.
         
    37. This form of aggressive cancer did not respond to chemotherapy. Hence if it had been detected about 45 days earlier, the position would have been no different as deposed by C.W. 3. This leads us to the inevitable conclusion that even if opposite party-4 had come out with the correct diagnosis, there would have been no salvation for the patient which is most unfortunate. But on that account the complainants have no case to allege that but for the negligence of opposite party-4 and by extension opposite party-3 the patient would have been cured and she would have been alive today. The evidence adduced by C.W.2 and C.W.3 would indicate strongly that an error of judgment in opposite party-4 had not contributed to the type of suffering which the patient had to undergo and this factor contributes largely to absolve opposite party-4 of the stigma of negligence attributed to him by the complainants. Considering the totality of circumstances brought into being on record, we have not hesitation to say that opposite party-4 and by vicarious extention opposite party-3 cannot be construed as negligent in diagnosing the condition of complainant No.1. Rather, we are inclined to believe that opposite party No.4 committed an error of judgment while issuing the histopathology report with regard to the existing condition of the patient which cannot be termed as deficiency of service.
      
    38. If that be so, what remains to be seen is whether opposite party-1 and opposite party No.2, particularly opposite party-2 is guilty of negligence as alleged by the complainants. The only allegation against them is that since Balamani was referred to opposite party-3 by opposite party-1 and opposite party-2 the latter are also jointly and severally liable to pay damages. In the course of his cross-examination complainant No. 2 has denied a suggestion that opposite party 2 was not guilty of negligence or deficiency in service. In the course of his affidavit evidence complainant No.2 has made the following averment:
      
    “It is also a case of negligence on the part of first respondent, as a doctor with bare minimum knowledge of medicine would have suspected cancer on noticing lumps in my wife’s left breast and the first and second respondents ought to have on their own ought to have advised us to take the block and slide to Kidwai Memorial Institute which is undoubtedly the best hospital for cancer in Bangalore”.
     
    39. We do not believe that failure to refer the patient to Kidwai Memorial Institute can be construed as negligence or for that matter an omission on the part of opposite party “1 and/or opposite party 2 since they have done what they thought best in the circumstances of the case. The complainants have infact not come out with an allegation that opposite party No.3 hospital is unequal to the task; rather, their allegation is that the task has been performed negligently. Hence we find that opposite party-1 or even opposite party-2 cannot be found fault with for referring the biopsy specimen to opposite party-3 hospital. We do not find any shortcoming or inadequacy in the manner or nature of the duties performed by them whatsoever.
      
    40. That leaves us with the other allegation that a doctor with a minimum knowledge of medicine ought to have suspected cancer on noticing lump in the breast of the patient. This allegation has no basis since one of the diagnosis of opposite party-2 as mentioned in Ex.R19 is “Ca Breast” which means cancer of the breast. The fact that Ex. R19 also suspects chronic infective granuloma does not take away the effect of the main diagnosis, namely cancer of the breast. Hence the type of allegation made by the complainants regarding diagnosis of the patient does not have much of a leg to sustain its weight. Even from the point of view of treatment given to the patient on receipt of Ex.C4, we have no reason to find fault with opposite party-1 or 2 since it has come in the evidence of C.W. 3 that if one gets a report like Ex.C4, the patient would be put on antibiotics and followed up. This is exactly what opposite parties-1 and 2 have done. It is not necessary for us to go into any other aspects of diagnosis or treatment of the patient in opposite party-1 hospital since the complainants themselves have not come out with any other allegation on other aspects. The material placed on record, it has to be stated, are not such as would point a finger of guilt on opposite party-2 in discharging his function at opposite party-1 hospital and hence we have no hesitation to hold that no stigma of deficiency of service can be attributed to either of them.
        
    41. It that be so, it has to be held in conclusion that the complainants, have failed to establish any deficiency of service within the meaning of that expression under the Consumer Protection Act, against opposite parties by acceptable evidence. It is true, we have found an error of judgment in opposite party-4 but such an error cannot, in the context of the surrounding circumstances of the case, be construed as negligence. We quote Lord Denning again to support this view.
      
    “You must not, therefore, find him negligent simply because something happens to go wrong; if, for instance, one of the risks inherent in an operation actually takes place or some complication ensures which lessens or takes away the benefits that were hoped for, or if in a matter of opinion he makes an error of judgment”.
       
    42. This is a warning which needs to be applied to every case involving medical negligence. In the instant case, by the standard set in the above words, we are not able to come to a conclusion that the opposite parties 1 to 4 are guilty of negligence in diagnosis and/or treating Balamani. In the result, we answer point No.2 in the negative.
      
    Point No.3
     
    43. In the view that we have taken under Point No.2, this point is also liable to be answered in the negative. Since no deficiency of service is attributable to the doctors (opposite party-2 and opposite party No.4) it has to be held that no vicarious liability could be attributed to either Ravi Kirloskar Memorial Hospital and Research Centre (opposite party-1) or The Bangalore Hospital (opposite party 3) or vice-versa.
      
    Point No. 4
       
    44. In the result we pass the following:
     
    ORDER
      
    The complaint is dismissed.
       

  • T. N. GHOSH v.DR. V. PAHWAL
    II (2001) CPJ 473
     
    WEST BENGAL STATE CONSUMER
    DISPUTES REDRESSAL COMMISSION,
    CALCUTTA
      
    Consumer Protection Act, 1986 – Section 15 - Appeal – Medical Negligence – Casual and careless examination by opposite party resulted in loss of vision – Complainant failed to prove the allegations of negligence on part of opposite party, not entitled to any relief.
     
    Result : Appeal dismissed.
     
    ORDER
     
    Mr. Justice S.C. Datta, President – This appeal is directed against order dated 6.8.1999 whereby the complaint was dismissed on contest. The Forum observed that the complainant has failed to establish any case of negligence on the part of the present respondent.
     
    Being aggrieved by the decision of the Forum the complainant has preferred this appeal on the ground that there has been gross miscarriage of justice. According to the appellant the negligence of the respondent is writ large on the face of the prescriptions of the respondent given by Dr. Pahwa himself.  His allegation is that Dr. Pahwa failed to diagnose the ailment of both of his eyes by all necessary examinations either by himself or by his assistants.  He specifically alleges that Dr. Pahwa failed to detect the glaucoma in his eyes though it had started developing in 1987.  Admittedly, the complainant was under the treatment of the opposite party for nearly 3 years from 1991 to 1994. His first visit to Dr. Pahwa was on 18.6.1991 when the doctor detected some black spots in his eyes. The doctor could not detect glaucoma at that time nor could it be detected on subsequent visits to the doctor. On the advice of the doctor he visited him after 6 to 8 months for review. Even during such visits glaucoma could not be detected.  All the time the doctor told him that he was afflicted with cataract and since the cataract did not mature the doctor did not advise for operation. The grievance of the complainant is mainly that the doctor being a busy practitioner could not devote sufficient time and give due care to examine him properly resulting in wrong diagnosis. His vision having visibly deteriorated, he approached Dr. Bakshi for examination of his eyes and treatment. Dr. Bakshi examined him on 29.6. 1994. At that time too Dr. Bakshi could not detect glaucoma in the yes of the complainant. Later on the glaucoma was detected and by this time his vision was greatly impaired. The complainant states that all the required tests could have been done on the first day of his visit to Dr. Pahwa and had these been done, the glaucoma would have been detected. The complainant was losing his eye sight very fast. Ultimately, his vision of right eye was totally impaired and he has become blind of one eye and for this unfortunate development he lays blame upon Dr. Pahwa.  His grievance is that the doctor made some cryptic notes in the prescription and released him after 4 or 5 minutes of casual examination. He alleges that proper care and attention was not given to him by the opposite party. It is not disputed that the eyes of the complainant were examined at intervals of 6 to 8 months and sometimes one year also and on each occasion the doctor advised him to come for review. According to the complainant this casual and careless examination by the opposite party resulted in the loss of vision. We noticed earlier that when he was examined for the first time by Dr. Bakshi, the latter did not notice glaucome on  his eyes. Later the glaucome was detected. In the meantime damage was done to his right eye and his vision was totally impaired. It appears that the Forum discussed the materials available with the record threadbare and came to the clear conclusion that the complainant has signally failed to prove the allegations of negligence on the part of the opposite party. We have considered every aspect of the case and materials on records and we cannot persade ourselves to hold otherwise. In our opinion, the case has been correctly decided and no interference is required. In that view of the matter, the appeal fails and is dismissed on contest.
     
    Appeal dismissed.
          

  • RANGANNAGARI YADAV REDDY v. DR.VIJAYA KUMARI
    II (2001) CPJ 391
        
    ANDHRA PRADESH STATE CONSUMER DISPUTES REDRESSAL 
    COMMISSION, HYDERABAD

        
    Consumer Protection Act, 1986 – Section 2(1) © Complaint – Medical Negligence – Premature attempt to separate placenta without even waiting for spontaneous delivery – Patient died – Complainant not turned up for cross examination, failed to substantiate the allegations leveled in the complaint – Absence of proof by themselves cannot be accepted – Complaint dismissed for want of evidence.
        
    Held: The complaint has not turned up for cross-examination in spite of several opportunities. The allegations in the complaint or in his affidavit are not tested in cross-examination. The opposite party is always ready to cross-examine the complainant. The complainant is neither available for cross examination by the opposite party nor his Counsel is available to cross-examine the witnesses on the side of the opposite parties. As such we are constrained to hold that the complainant has failed to substantiate the allegation leveled in his complaint. In the absence of proof by way of some evidence the averments of the complaint by themselves cannot be accepted.
        
    The complaint therefore, fails for want of evidence and it is accordingly dismissed. ( Paras 8 & 9)
      
    Mr. .Justice P. Ramakrishnam Raju, President – The complainant`s wife late Smt. Anuradha, who gave birth to three issues, was under antenatal care and treatment of the first opposite party during her third pregnancy. Till her death she was hale and healthy. Right from the time of her conception third time she was consulting the first opposite party. On completion of her full term pregnancy, she got her labour pains around 7.00 p.m. on 16.8.1992 and was taken to the first opposite party`s hospital. It was at 10.12 p.m. when she reached the hospital. Around 11.49 p.m. she delivered a male child and the delivery was normal. The first opposite party thereafter retired into her residence which is annexed to the clinic and returned at 00.10 hours. When she returned she appeared, drunk and was holding a liquor bottle in her hands and gulped the remaining liquor in the bottle after she entered the labour room. She threw the bottle on the floor and then enquired the lady nurse whether the patient delivered placenta. When the answer was in the negative the doctor remarked how long should I stay for this bitch. She thereafter waited for a couple of minutes and started making premature attempt to expel the placenta even before it was separated. In spite of the patient`s mother requesting her to wait for some time for spontaneous delivery of placenta she abused her mother and asked her to get out. The elder sister of the patient was still there. When she too requested the doctor to allow some time she too was asked to get out. Within few minutes they heard wild cry of the patient ” I am dying”. Immediately the mother and sister of the patient peeped into the labour room and observed that the doctor was trying to pull out the unseparated placenta manually. They also saw the patient lying unconscious. After a few minutes the opposite party came out of the room and asked them to arrange a jeep to take the patient immediately to Gandhi Hospital at Secunderabad. Co-brother of the complainant by name Narsimha Reddy a para medical assistant working in CDR Hospital, Hyderabad came and asked the opposite party as to what has happened. He checked the pulse and heart beat of the patient and expressed that she is no more. The opposite party pretended to examine the patient for a while and said Alas, she died. All this happened since the opposite party being intoxicant, feeling restless wanted to go to bed and, therefore, made premature attempt to separate placenta without even waiting even for half an hour for spontaneous delivery. This has resulted in irregular uterin contractions leading to haemorrhage. As such the husband of the complainant filed the complaint claiming a compensation of Rs.10.00 lakhs.
       
    2. In the counter-affidavit filed by the 1st opposite party she denied that she was negligent or careless. She states that Smt.Anuradha was admitted in Vijaya Hospital. There was normal vazinal delivery as well as spontaneous delivery of placenta. Thereafter the patient being very weak developed uterin haemorrhage. As blood was not available at Gajwel the opposite party directed them to go to Gabdhi Hospital, Secunderabad. The patient was shifted into the jeep when she was alive. At that time, the mother and the husband of Anuradha were present. They promised to pay her delivery charges and cost of medicines after returning from Gandhi Hospital. She does not know what has happened thereafter. But after one month, the complainant came with a band of goondas and threatened her to write the case sheet and also the death certificate that the death occurred in her hospital. Out of fear she has written the case sheet in their presence. It is also stated in the counter that one Dr.V.Yadava Reddy is responsible for filing the complaint with false allegations to harass her.
       
    3. The complainant filed three or four documents which include the case sheet, death certificate issued by Sarpanch and also another certificate that the death was not recorded.
         
    4. The point for consideration is whether the complainant has established any negligence as alleged on the part of the 1st opposite party which resulted in the death of his wife.Smt.Anuradha ?
          
    5. On 27.7.1999 it is observed by this Commission that the complainant has not filed affidavit evidence of himself and other witnesses in spite of several adjournments even from 24.12.1997 onwards, it is adjourned to 24.8.1999 with an observation that the matter will be disposed of on the basis of the material available on that date.
      
    6. On 24.8.1999 the complainant has filed his affidavit evidence. The opposite party also filed her affidavit as well as the affidavits of two other witnesses. For cross-examination of witnesses it is posted to 24.12.1999. On 31.12.1999 the complainant sought time and the matter is posted to 27.3.2000 directing the witnesses to be ready for cross-examination. On 22.2.2001, witnesses on behalf of the complainant are not present while the opposite party is present. However, the matter is adjourned to 27.3.2001 observing that if the complainant or his Counsel is not present his right to adduce evidence as well as the right to cross-examine the witnesses of the opposite party will be forfeited. On 27.3.2001 the following order is passed.
        
    ” In spite of our order dated 22.2.2001 wherein we have observed that the complainant or his Counsel are not present and since it is an old matter it is finally adjourned to today and in case the complainant or his Counsel is not present to cross-examine the opposite parties, their right to cross-examination would be forfeited. Today also they are not present. Hence their right to cross-examine the opposite parties is forfeited and they have also not produced any evidence or present for cross-examination by the opposite parties. Hence evidence of the complainant is closed. In fact on an earlier occasion, notice was also given to the complainant by this Commission intimating that either the complainant or his Counsel are not present and they should be present for future adjournments. In spite of this there is no improvement and thereafter the complainant changed the Advocate, even then there is no improvement in the situation. Heard the learned Counsel for the first opposite party. Orders reserved.” 
        
    7. After the matter is reserved for orders we waited till today with the hope that the complainant may approach for reopening of the matter and seek for an opportunity. But nothing has happened during this time. Therefore, we are convinced that no useful purpose would be served while prolonging the matter any longer. As this is an old matter of the year 1993, we cannot indefinitely postpone the result. Hence the judgment is being pronounced today. 
       
    8. The complainant has not turned up for cross-examination in spite of several opportunities. The allegations in the complaint or in his affidavit are not tested in cross-examination. The opposite party is always ready to cross-examine the complainant. The complainant is neither available for cross examination by the opposite party nor his Counsel is available for cross-examine the witnesses on the side of the opposite parties. As such we are constrained to hold that the complainant has failed to substantiate the allegations leveled in his complaint. In the absence of proof by way of some evidence the averments of the complaint by themselves cannot be accepted.
       
    9. The complaint, therefore, fails for want of evidence and it is accordingly dismissed. In the circumstances, no costs.
    Complaint dismissed.
         

  • DR. (SMT.) N. ROHAN (YADAV) v. SMT. MANORAMA TAMRAKAR
    II (2001) CPJ 402
        
    MADHYA PRADESH STATE
    CONSUMER DISPUTES REDRESSAL
    COMMISSION, BHOPAL

       
    Consumer Protection Act, 1986 – Sections 2(1) (d), 2 (1) (o) Medical Negligence – Consumer – Service – Deficiency in service in not taking proper pre and post-operative precautions – Complainant admitted for delivery of child in Government Hospital – Services rendered free of charge – Payment of a token amount of Rs.2/- for registration purpose not alter the position of doctors and hospital – District Forum erroneously held that complainant was consumer, entitled to compensation – Forum had no jurisdiction to entertain the matter – Complaint not maintainable, liable to be dismissed.
        
    Held : Service are rendered free of charge to every body availing the medical service in the said hospital. The payment of a token amount of Rs.2/- for registration purposes only does not alter the position in respect of the doctors and hospitals. It is not the case of the complainant that in the hospital from a particular category.
       
    ORDER
      
    Mr. Justice S.K. Dubey, President – There are three appeals arise out of the order date 31.10.2000 passed in Case No 108/98 by the District Consumer Disputes Redressal Forum Sagar (for short the ‘District Forum’).
      
    2. Facts giving rise to the case are thus : the compaint -Smt. Manorama Tamrakar filed complaint against Dr. Smt. Usha Saini, Dr. Smt. Shashi Thakur, Dr. N. Yadav and Miss Nathaval Nurse of the Duffrin Hospital, Sagar allegin deficiency in medical service provided to her while she was admitted and remained as an indoor patient in Government Hospital for delivery of child from 14.8.1996 to 30.8.1996 from where she was discharged and then was the patients the fee or consideration is charged or the complaint had paid any amount of consideration or fee to the doctors concerned even at their residence. In the circumstances, in our opinion, the District Forum erred in miss-applying the law laid down by the Supreme Court and erroneously held that the complainant was the consumer and, therefore, for deficiency in medical service was entitled to compensation. Infact the complaint was not maintainable and was liable to be dismissed at the initial stage as the District Forum had no jurisdiction to entertain the complaint for redressal of the grievance of the complaint under the provisions of the Consumer Protection Act, 1986. (Para 6)
      
    Result : Ordered accordingly.
      
    Cases referred :
        

    1. 

    III (1995) CPJ 1 (SC).

    [Para 5]

    2. 

    AIR 1940 PC 222.

    [Para 6]

    3. 

    1983 JLJ 728.

    [Para 6]

    4. 

    1988 II MPWN 33.

    [Para 6]

    5. 

    1992 JLJ 489.

    [Para 6]

    6. 

    Appeal No. 994/97, decided on 5.6.2000 by MPSADRC.

    [Para 6]

        
    admitted in the Medical College Hospital, Jabalpur for treatment from 10.9.1996 till 27.9.1996. The complaint averred that after lower segment caesarean operation was performed on 15.6.1996 whereby the female child was born, there was infection and pus formation, which did not stop inspite of treatment, hence she was referred to Jabalpur Medical College where she was admitted on 19.9.1996 and remained under treatment till 27.9.1996. In the Jabalpur Medical College, while dressing on 10.9.1996 it was found that at the place of stitching at the time of caesarean operation 5 mtrs. mop was left, which ultimately was taken out on 30.9.1996 by operation. Leaving mop was an act of gross negligence on the part of the doctors of Government Hospital, Sagar, who performed lower segment caesarean operation, therefore, claimed the amount of Rs. 5 lacs as compensation for deficiency in medical service in not taking proper pre and post-operative precautions. During this period the female child also died for want of proper feeding. The complaint field was resisted. The District Forum after appreciation of evidence held that the complainant was maintainable even if no consideration was charged in the Government Hospital at Sagar. For the deficiency in Service, the District Forum ordered to pay compensation of Rs. 50,000/- and Rs. 5,000/- as costs of the proceedings within a period of one month from the date of the order, failing which amount of compensation to carry interest at the rate of 12% p.a.
       
    3. The hospital and Dr. Smt. Usha Saini and Dr. Smt. Shashi Thakur and Staff Nurse aggrieved of the order have filed Appeal No. 1763/2000, while Dr. Smt. N. Rohan has filed Appeal No. 96/BSP/2000. The complainant has also filed Appeal No. 1803/2000 for enhancement of compensation.
      
    4. After hearing learned Counsel for the parties we are of the opinion that the order of the District Forum cannot be sustained.
      
    5. Admittedly, the complainant was admitted for delivery of the child in the Government Hospital, where no fee is charged on any category of the persons or patients accept token registration charge of Rs. 2/- from the patient. The complainant did not make any payment or consideration to the doctors and/or to the nurse, who performed the operation or treated the complainant at hospital at Sagar. In the circumstances, in view of the decision of the Supreme Court in case of Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC), wherein the question has been dealt with and hospitals and doctors have been categorise in para 43 which we quote :
      
    “43. The other part of exclusionary clause relates to services rendered “free of charge”. The medical practitioners, Government hospital/nursing homes and private hospitals/nursing homes (hereinafter called “doctors and hospitals”) broadly fall in three categories :
      
    (i)    where services are rendered free of charge to everybody availing the said services;
    (ii)   where charges are required to be paid by everybody availing the services; and
    (iii)  where charges are required to be paid by persons availing service but certain categories of persons who cannot afford to
            pay are rendered service free of charges.
      
    There is no difficulty in respect of first two categories. Doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of “service” under Section 2(1)(0) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2(1)(0) of the Act. The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1)(0) of the Act.”
      
    6. The present case is covered by category (i) as services are rendered free of charge to every body availing the medical services in the said hospital. The payment of a token amount of Rs. 2/- for registration purposes only does not alter the position in respect of the doctors and hospitals. It is not the case of the complainant that in the hospital from a particular category of the patients the fee or consideration is charged or the complainant had paid any amount of consideration or fee to the doctors concerned even at their residence. In the circumstances, in our opinion, the District Forum erred in misapplying the law laid down by the Supreme Court and erroneously held that the complainant was the consumer and, therefore, for deficiency in medical service was entitled to compensation. In fact the complaint was not maintainable and was liable to be dismissed at the initial stage as the District Forum had no jurisdiction to entertain the complaint for redressal of the grievance of the complainant under the provisions of the Consumer Protection Act, 1986.
      
    In view of the above, it is not necessary for us to deal with the findings recorded by the District Forum on merits as it is well-settled that when a Court had no jurisdiction to entertain the complaint then the findings recorded on merits of the disputes are without jurisdiction and are not binding on the parties. Therefore, the finding recorded by the District Forum on medical negligence would not be binding on the parties. See, Upendra Nath v. Lall, AIR 1940 PC 222, and the decisions of Madhya Pradesh High Court in Chalchitra Karmchari Sangh v. Regal Talkies, Gwalior, 1983 JLJ 728; Smt. Sudamabai v. Pratap Singh, 1998 II MPWN 33; M.P. State Road Transport Corporation v. Dashrat Singh, 1992 JLJ 489, followed by this Comission in Ku. Shalini Kushwaha v. General Manager, SBI Fund Management, Mumbai, Appeal No. 994/97, decided on 5.6.2000.
       
    7. In view of the above, we have no alternative but to dismiss this complaint with liberty to the complainant if so advised to institute the suit in the Court of competent jurisdiction to claim compensation for negligence. If the complainant chooses to institute the civil suit for the relief claimed in these proceedings she can do so according to law and in such a case can claim the benefit of Section 14 of the Limitation Act to exclude the period sent in prosecuting the proceedings under the Consumer Protection Act while computing the period of limitation prescribed for such a suit.
      
    8. In the result, the Appeal Nos. 96/BSP/2000 and 1783/2000 are allowed while Appeal No. 1803/2000 filed by the complainant dismissed. Accordingly, the order of the District Forum is set aside. Consequently the complaint is dismissed with no order as to costs. A copy of this order be conveyed to the parties and a copy to be sent to the District Forum along with the record of the case.
      
    Ordered accordingly.
            

  • II (2001) CPJ 354
        
    UTTAR PRADESH STATE CONSUMER 
    DISPUTES REDRESSAL COMMISSION, LUCKNOW

      
    SMT. TAHIRA KHATOON – Appellant versus GOVERNMENT OF UTTAR PRADESH & ORS. - Respondents
      
    Consumer Protection Act, 1986 – Section 2(1) (d) – Medical Negligence – Consumer – M.T.P. surgery conducted – Uterus got burst, pus developed on permanent basis – Compensation claimed - Contention, Rs.100/- for room rent and Rs.25/ for glucose charged – Contention not acceptable – Person under treatment has to pay incidental expenses – No fee charged for operation, complainant not a consumer.
        
    Held : A perusal of the judgment will go to show that a sum of Rs.2/- was charged for prescription and a sum of Rs.100/- was charged as room rent and Rs.25/- was charged for glucose.. No fee was charged from the complainant for doing the operation. These are incidental expenses, which a person has to pay for the treatment. The hospital does not bear this part of the expenses which are done during the period of operation or after that. Thus, we find that the services of the opposite parties were availed free of charge and hence the complainant is not covered under the definition of consumer. The findings of the learned District Forum are perfectly correct and need no interference.
        
    ORDER
        
    Mr. .Justice K. C. Bhargava, President –
    This is an appeal against the judgment and order dated 3.10.1992 passed by District Consumer Forum, Gorakhpur in Complaint Case No.74/1992.
        
    2. The facts of the case stated in brief are that the complainant went to the District Women Hospital, Gorakhpur on 6.8.1990 for her treatment. Thereafter on the next day she again went to the hospital for M.T.P. The surgery for M.T.P. was done on the same day. On account of this surgery, the uterus of the complainant got burst and there developed pus on permanent basis in the uterus. On account of this fact she was unable to enjoy sexual life with her husband. She has claimed a compensation of Rs.97,000/-
        
    3. On behalf of the opposite party it was alleged that the case is not triable by the learned District Forum as the complainant is not a consumer. Before this a complaint of a similar nature was lodged in which it was held that as no charges were made, therefore, the complaint is not maintainable on account of the fact that the complainant is not a consumer.
            
    4. It was further alleged that the treatment of the complainant was done free of charge in the District Hospital. The complainant disclosed on the next date that she has two sons and two daughters and she prayed for vasectomy operation. At that time it was found that the uterus of the complainant was in burst condition which was stitched. The operation was done under the supervision of competent doctors.
        
    5. Learned District Forum, after considering the case of the parties, came to the conclusion that the treatment was done free of cost and hence the complainant is not a consumer and dismissed the complaint.
       
    6. Aggrieved against the order of the learned District Forum, the complaint has come in appeal, and has challenged the correctness of the order passed by the District Forum.
      
    7. We have heard the learned Counsel for the appellant. Notice was sent to the opposite parties, but the opposite parties did not appear on the date of hearing.
       
    8. A perusal of the judgment will go to show that a sum of Rs.2/- was charged for prescription and a sum of Rs.100/- was charged as room rent and Rs.25/- was charged for glucose. No fee was charged from the complainant for doing the operation. These are incidental expenses which a person has to pay for the treatment. The hospital does not bear this part of the expenses which are done during the period of operation or after that. Thus we find that the services of the opposite parties were availed free of charge and hence the complainant is not covered under the definition of consumer. The findings of the learned District Forum are perfectly correct and need no interference.
        
    The appeal is thus liable to be dismissed.
        
    ORDER
          
    The appeal is dismissed and the judgment and order of the learned District Forum are confirmed. There will be no order as to the costs.
      
    Let copy as per rules be made available to the parties.
     
    Appeal dismissed.
        

  • RAMESHCHANDRA GOSWAMI v. DR. DIPAK BANERJEE
      
    Consumer Protection Act, 1986 – Section 2(1)(g) – Medical Negligence – Deficiency in Service – Careless / negligence operation – Patient operated for appendicitis – Developed respiratory trouble after operation – Died due to cerebral attack occurred due to careless / negligent operation, patient did not regain consciousness due to wrong application of anesthesia – Allegation not established by expert evidence – Deficiency in service on part of opposite parties not proved – Complainant not entitled for a relief.
      
    Held: According to the complainant the cerebral attack occurred due to careless negligent operation by the doctor. But there is expert evidence to establish the fact that if operation was the proximate cause of the cerebral attack. In the petition of the complainant it has been alleged that because of wrong application anesthesia the patient did not regard consciousness, and ultimately died. Here again, there is no tangible evidence to establish fact. The learned Counsel for the opposite party-1 drawn our attention to noting in the bedhead ticket dated 4.8.1993 to show that one of the doctors had noticed marked improvement in condition of the patient while she was under treatment at SSKM Hospital. The learned Counsel of the opposite party has also drawn attention counter affidavit filed by the complainant wherein it has been stated in paragraph 2 thereof that doctors H.K.Mitra and Amit Kr.Mukherjee are the owners of the nursing home (opposite party-3) whereas the stand taken in the complainant petition was that the opposite parties-1 and 2 are the owners of the said nursing home. Anyway these are not very much relevant for the purpose of this case. The question that arises for consideration is whether there was any deficiency in service on the part of the doctors. As indicated earlier there is no satisfactory evidence to establish the allegation against the doctors. This being the position we cannot but reject the claim. (Para 5 )
       
    Result : Complaint dismissed.
        
    ORDER
         
    Mr. Justice S.C.Datta, President – The complainant is husband of the deceased Arati Goswami. He has approached this Commission claiming compensation to the tune of Rs.10 lakhs for the death of his wife on 31.8.1993 due to defective operation performed by the opposite party-1 on 7.7.1993.
         
    2. The case of the complainant in short is that his wife Arati Goswami suddenly fall ill on 30.6.1993 due to pain in the abdomen. She was immediately taken to Dr. Dipak Banerjee (opposite party-1) in his chamber for advice and treatment. After examination the said doctor advised for immediate operation for appendicitis. On his advice the patient was admitted to Shush Usha Nursing Home (opposite party-3) on 6.7.1993 at about 10.40 p.m. On the next day i.e. on 7.7.1993 at about 7.45 a.m. Dr.Banerjee performed the operation on the patient with the help of anesthetist Dr.Sujit das (opposite party-2). Immediately after operation the patient experienced respiratory trouble. The complainant alleges that this occurred due to negligence of the doctor performing the operation, nursing staff and absence of oxygen cylinder in the said nursing home. There is further allegation that no cardiologist was called for. In fact, tube patient lay uncared for about more than four hours in a precarious condition. Dr.Banerjee called Dr.S.K.Chatterjee, cardiologist (opposite party-4) at about 12 noon. Dr.Chatterjee noticed the precarious condition of the patient and advised shifting of the patient to a reputed hospital in Calcutta as otherwise she would be in a state of coma. Dr.Chatterjee further observed that this was a case of cerebral attack. The patient was shifted to Calcutta and admitted in the neurological medicine ward (female) of SSKM Hospital. The patient lay unconsciousness and she never regained her consciousness. Ultimately she expired on 31.8.1993. According to the complainant Dr.Banerjee being not a gynaecologist had no authority to perform such an intricate operation. Moreover, there was absence of necessary equipments and facilities at the nursing home resulting in untimely death of the patient. The complainant lodged complaint with the West Bengal Medical Council but without any consequence. Thereafter he approached this Commission for redress.
          
    3. The case is contested by the opposite parties-1 and 2 by filing a joint written version. It has been stated that he was sent for examination of the patient at the nursing home on 6.7.1993 and he advised immediate operation of the patient considering the seriousness of the ailment. Dr.Banerjee noticed that it was a case of pathological appendicitis. He advised for immediate surgery and also suggested that another surgeon should be consulted for second opinion. But the complainant insisted upon him to perform the operation. The complainant having expressed inability to consult another surgeon and having given procedural consent for such operation, Dr.Banerjee surgically removed the appendicitis of the patient with the help of opposite party-2 after taking all necessary precautions and following approval medical procedures for such surgery. The patient having felt respiratory trouble, Dr.Chatterjee was sent for who arrived on the same date at about 12 noon and advised for hospitalization. The opposite party denied that the patient died because of negligence. Since time was very short and condition of the patient worsened they had no time for detailed pathologica examination before the operation.
          
    4. The sole point for determination in the case is whether the complainant has succeeded in establishing deficiency in service in the matter of operation of he patient on 7.3.1993. Several ….. are committed. Dr. Banerjee is MBBS (Cal) and MAIMS (Delhi). Anyway the complainant consulted him while his wife fell ill following a pain in the abdomen. Dr. Banerjee performed the operation and removed the appendix. It has been alleged that he is not qualified to perform the said operation. It may be remembered that he is an MBBS doctor and as such it cannot be disputed that he had authority to perform the operation. The operation was done and appendix was removed within a few hours. The patient developed respiratory trouble and Dr. S.K.Chatterjee, a cardiologist was sent for. He observed that it was a case of cerebral attack. He advised immediate shifting of the patient to a reputed hospital in Calcutta. The patient was taken to Calcutta and admitted to SSKM Hospital for treatment. Later she expired there on 31.8.1993. The learned Counsel appearing for the opposite parties has drawn our attention to the death certificate wherefrom it appears that the death occurred due to brain stem infraction. It may be mentioned that the trouble started after the operation was done and one appendix was removed.
         
    5. According to the complainant the cerebral attack occurred due to careless / negligent operation by the doctor. But there is no expert evidence to establish the fact that the operation was the proximate cause of the cerebral attack. In the petition of complainant, it has been alleged that because of wrong application of anesthesia the patient did not regain consciousness, and ultimately died. Here again there is no tangible evidence to establish fact. The learned Counsel for the opposite party-1 has drawn our attention to noting in the bedhead ticket dated 4.8.1993 to show that one of the doctors had noticed marked improvement in the condition of the patient while she was under treatment at SSKM Hospital. The learned Counsel of the opposite party has also drawn attention to counter affidavit filed by the complainant wherein it has been stated in paragraph 2 thereof that doctors H.K.Mitra and Amit Kr. Mukherjee are the owners of the nursing home (opposite party-3) whereas the stand taken in the complaint petition was the opposite parties-1 and 2 are the owners of the said nursing home. Anyway these are not very much relevant for the purpose of this case. The question that arises for consideration is whether there was any deficiency in service on the part of the doctors. As indicated earlier there is no satisfactory evidence to establish the allegation against the doctors. This being the position we cannot but reject the claim. 
       
    In view of the aforesaid, the case deserves to be dismissed which we hereby do.
        
    Ordered that the case be and the same is hereby dismissed on contest.
        
    Complaint dismissed.
         

  • RAKESH KUMAR v. DR.D.P.BAKSHI
    II(2001) CPJ 59 (NC)
       
    Consumer Protection Act, 1986 – Section 24A – `Medical’, `Barred by Limitation’ – Complainant`s hand did not fully respond to the operation – Whether the complaint is barred by limitation ? – Whether the complaint has given any explanation for this inordinate delay ? [No].
        
    Held: The fact is that the absence of the radial nerves was known to the complainant on 2nd June, 1990 and that the right radial artery was missing. But the complainant filed the present complaint in February, 1999 which is almost 9 years after the said operation. Limitation provided under Section 24A of the Act is 2 years. Such delay can, however, be explained in terms of proviso to the said section. But no explanation for such long delay has been made before us.
       
    In these circumstances, we are not inclined to condone the delay of about 7 years in filing the complaint. This original petition is, therefore, dismissed, as time barred. This diposal shall not prevent the complainant to such remedy in any other Forum in accordance with law. (Paras 1 & 2 )
       
    Result: Original Petition dismissed.
         
    ORDER
        
    Mr.Justice J.K.Mehra, Member – This is a complaint filed by the complainant against the opposite party who is a Surgeon for the alleged negligence committed by the said Surgeon in operating upon the complainant`s right hand. It is alleged that the patient could not move his wrist and the fingers. It was to remedy this malady that the operation was carried out on 20th April, 1990 at Calcutta. It is stated in the complaint that the hand of the patient did not fully respond after the operation and certain complications also developed later. Even the report of one, Dr. A.K.Biswas which is relied upon by the complainant in the complaint is that of 2nd June, 1990 wherein the fact of missing radial nerves and radial artery is noted. Thereafter, the patient was treated at different centers including All India Institute of Medical Sciences (AIIMS). The fact is that the absence of the radial nerves was known to the complainant on 2nd June, 1990 and that the right radial artery was missing. But the complainant filed the present complaint in February, 1999 which is almost 9 years after the said operation. Limitation provided under Section 24A of the Act is 2 years. Such delay can, however, be explained in terms of proviso so the said section. But no explanation for such long delay has been shown nor any prayer for condonation of delay has been made before us.
       
    2. In these circumstances, we are not inclined to condone the delay of about 7 years in filing the complaint This original petition is, therefore, dismissed, as time barred. This disposal shall not prevent the complainant to such remedy in any other Forum in accordance with law.
       
    Original Petition dismissed.
         

  • Dr. (Smt.) N. Rohan Yadav v. Smt. Manorama Tamrakar & Ors.
    2001(2) CPR 35
     
    STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MADHYA PRADESH : BHOPAL
     
    Consumer Protection Act, 1986 – Sections 2 and 14 – Consumer – Medical Negligence – At the time of Caesarean operation 5 mtrs mop was left which was later on taken out by another operation – Forum awarded compensation holding complaint maintainable against appellants, doctors of Government Hospital – Appeal – No fee was charged from any category of persons or patients except taken registration charge of Rs. 2 from the patient – No case of complainant that from a particular category of patients fee or consideration was charged – Complainant could not be said to be consumer and complaint was not maintainable.     (Para 5 to 7)
     
    Result : Appeals allowed.
     
    IMPORTANT POINT
     
    Patient who avails medical service of Government Hospital where no fee or consideration is charged except a small amount as registration charges, he cannot be said to be a consumer.
     
    ORDER
     
    S.K. Dubey, President – The three appeals arise out of the order dated 31-10-2000 passed in case No. 108/98 by the District Consumer Disputes Redressal Forum, Sagar (for short the ‘District Forum’).
     
    2. Facts giving rise to the case are thus : the complainant Smt. Manorama Tamrakar filed a complaint against Dr. Smt. Usha Saini, Dr. Smt. Shashi Thakur, Dr. N. Yadav and Miss Nathaval, Nurse of the Duffrin Hospital, Sagar alleging deficiency in medical service provided to her while she was admitted and remained as an indoor patient in Government Hospital for delivery of child from 14-8-1998 to 30-8-1998 from where she was discharged then was admitted in the Medical College Hospital, Jabalpur for treatment from 10-9-1998 till 27-9-1998. The complainant averred that after lower segment caesarean operation was performed on 15-8-1996 where by the female child was born, there was infection and pus formation, which did not stop inspite of treatment, hence she was referred to Jabalpur Medical College where she was admitted on 19-9-1996 and remained under treatment till 27-9-1996. In the Jabalpur Medical College, while dressing on 10-9-1996 it was found that at the place of stitching at the time of Caesarean operation 5 mtrs mop was left, which ultimately was taken out on 30-9-1996 by operation. Leaving mop was an act of gross negligence on the part of the Doctors of the Government Hospital, Sagar, who performed lower segment caesarean operation therefore, claimed the amount of Rs. 5 lacs as compensation for deficiency in medical service in not taking proper pre and post operative precautions. During this period the female child also died for want of proper feeding. The complaint filed was resisted. The District Forum after appreciation of evidence held that the complainant was a consumer and the complaint was maintainable even if no consideration charged in the Government Hospital at Sagar. For the deficiency in service, the District Forum ardered to pay compensation of Rs. 50,000/- and Rs. 5,000/- as costs of the proceedings within a period of one month from the date of the order, falling which amount of compensation to carry interest at the rate of 12% p.a.
       
    3. The Hospital and Dr. Smt. Usha Saini and Dr. Smt. Shashi Thakur and Staff Nurse aggrieved of the order have filed appeal No. 1763/2000. while Dr. Smt. N. Rohan has filed appeal No. 96/BSP/2000. The complainant has also filed appeal No. 1803/2000 for enhancement of compensation.
     
    4. After hearing learned counsel for the parties we are of the opinion that the order of the District Forum cannot be sustained.
      
    5. Admittedly, the complainant was admitted for delivery of the child in the Government Hospital, where no fee is charged from any category of the persons or patients except token registration charge of Rs. 2 from the patient. The complainant did not make any payment or consideration to the doctors and/or to the nurse, who performed the operation or treated the complainant at Hospital at Sagar. In the circumstances, in view of the decision of the Supreme Court in case of Indian Medical Association v. V.P. Shantha and others, wherein the question has been dealt with and hospitals and doctors have been categorized in para 43 which we quote :
       
    43. The other part of exclusionary clause relates to services rendered “free of charge”. The Medical Practitioners, Government Hospital / Nursing Homes and private Hospital / Nursing Homes (hereinafter called “Doctors and Hospitals”) broadly fall in three categories :-
     
    (i) where services are rendered free of charge to everybody availing the said services.
     
    (ii) where charges are required to be paid by everybody availing the services, and
     
    (iii) where charges are required to be paid by persons availing service but certain categories of persons who cannot afford to pay are rendered service free of charges.
     
    There is no difficulty in respect of first two categories. Doctor and Hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of “service” under section 2(1)(o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such Doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2(1)(o) of the Act. The third category of Doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such Doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2 (1)(o) of the Act”.
      
    6. The present case is covered by category (1) as services are rendered free of charge to everybody availing the medical services in the said hospital. The payment of a token amount of Rs. 2 for registration purposes only does not alter the position in respect of the doctors and hospitals. It is not the case of the complainant that in the Hospital from a particular category of the patients the fee or consideration is charged or the complainant had paid any amount of consideration or fee to the doctors concerned even at their residence. In the circumstances, in our opinion, the District Forum erred in mis-applying the law laid down by the Supreme Court and erronesously held that the complainant was the consumer and therefore, for deficiency in medical service was entitled to compensation. In fact the complaint was not maintainable and was liable to be dismissed at the initial stage as the District Forum had no jurisdiction to entertain the complaint for redressal of the grievance of the complainant under the provisions of the Consumer Protection Act, 1986.
      
    7. In view of the above, it is not necessary for us to deal with the findings recorded by the District Forum on merits as it is well settled that when a court had no jurisdiction to entertain the complaint then the findings recorded on merits of the disputes are without jurisdiction and are not binding on the parties. Therefore, the finding recorded by the District Forum on medical negligence would not be binding on the parties. See, Upendra  Nath v. Lall and the decisions of Madhya Pradesh High Court in Chalchitra Karmchari Sangh v. Regal Talkies, Gwalior, Smt. Sudamabai v.Pratap Singh, M.P. State Road Transport Corporation v. Dashrat Singh, followed by this Commission in Ku. Shalini Kushwaha v. General Manager, SBI Fund Management Mumbai.
     
    8. In view of the above, we have no alternative but to dismiss this complaint with liberty to the complainant if so advised to institute to suit in the Court of competent jurisdiction to claim compensation for negligence. If the complainant chooses to institute the civil suit for the relief claimed in these proceedings she can do so according to law and in such a case can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, while computing the period of limitation prescribed for such a suit.
      
    9. In the result, the appeals No. 96/BSP/00 & 1763/00 are allowed while appeal No. 1803/2000 filed by the complainant is dismissed. Accordingly the order of the District Forum is setaside. Consequently the complaint is dismissed with no order as to costs. A copy of this order be conveyed to the parties and copy be sent to the District Forum alongwith  the record of the case.
     
    Appeals allowed.
        

  • Sunita Vasant Heganawar & Ors.v.Miraj Medical Center
    1994 (2) CPJ 544: 1994 (3) CPR 214 (Mah SCDRC)
       
    More Details      Click Here
        

  • Amir Ali Shakil v. St. John’s Medical College Hospital, Bangalore
    1996(1) CPJ 169: 1995 (3) CPR 174 (Karnataka SCDRC)
       
    More Details      Click Here
       

  • B. Hegde v. Dr. Sudhansu Bhattacharya
    1992(2) CPJ 449 (Mah SCDRC)
          
    More Details      Click Here
         

  • Renu Jain v. Escorts Heart Hospital and Research Institute.
    1992 (2) CPJ 391 (NCDRC)
       
    More Details      Click Here
       

  • Bhajan Lal Gupta & Anr. v. Mool Chand  Kharati Ram Hospital & Ors.
    2000(1) CPR 70 (NC)
      
    More Details      Click Here
        

  • Sir Gangaram Hospital v D.P Bhandari & Ors.
    1992 (2) CPJ 397 (NCDRC).
        
    More Details      Click Here
       

  • Poona Medical Foundation Ruby Hall Clinic v Maruti Rao L Tikare & Anr
    1995 (1) CPJ 232 :1995 (1) CPR 661 (NCDRC)
       
    More Details      Click Here
       

  • Dr Narayan Choudhary & Anr v Dr (Mrs ) Rita Poddar & ors.
    1997(3) CPJ 557 : 1998 (3) CPJ 66 (WB SCDDRC)
       
    More Details      Click Here
        

  • Shubh Lata v. Christian Medical College
    1 1995(1)CPJ 165(Punjab) SCDRC
       
    More Details      Click Here
        

  • Dr. JOSLIN CHRYSOSTOM v. S. LOURDU
    III (2001) CPJ 126
    TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
        
    More Details
          Click Here
         

         

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