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2013 DIGILAW 513 (UTT)

A. M. RATURI v. NARESH KUMAR

2013-08-06

C.C.Pant, Kusumlata Sharma

body2013
ORDER (Per: Mr. C.C. Pant, Member): These two appeals arise out of the order dated 17.03.2012 passed by the District Forum, Udhamsingh Nagar, allowing the consumer complaint No. 13 of 2011 and directing the opposite party No. 2 to pay to the complainant a sum of Rs. 30,000/- as compensation and Rs. 3,000/- towards cost of litigation within a month from the date of the order. 2. The facts of the case, in brief, are that the complainant – Sh. Naresh Kumar, a labourer, had some pain in his stomach and he went to the Government Hospital, Tanakpur on 27.01.2009 for check-up. The doctor of the Government Hospital advised him to consult a surgeon. The complainant thereafter approached Dr. A.M. Raturi, Surgeon, Khatima, District Udhamsingh Nagar – opposite party No. 2, who advised him to get himself admitted in Sanjivni Hospital, Khatima. After conducting certain tests, the opposite party No. 2 operated upon the complainant for Hernia of right side and implanted a mesh for support. The complainant has alleged that the wound did not heal up even after one year of the operation and his condition deteriorated, though he had been visiting the treating doctor regularly for post operative treatment and care. On 03.03.2010, the complainant complained of the unhealed wound to the opposite party No. 2, the operating surgeon, who advised him to get himself admitted in Nanakmatta Hospital. The complainant took an advice from the doctor of the Government Hospital, Tanakpur, who advised him to consult a surgeon. On 18.03.2010, the complainant went to Dr. Prem Singh, Surgeon, Saurabh Hospital, Khatima, who operated upon the complainant and removed the mesh, implanted by the opposite party No. 2. After the second operation, the complainant has admitted that he was cured. The complainant sent a notice through his counsel to the opposite party No. 2 on 04.10.2010 regarding the negligence made by him in his treatment and to compensate for the same, but the opposite party No. 2 did not reply to it. This led the complainant to file a consumer complaint before the District Forum, Udhamsingh Nagar. The District Forum, after an appreciation of the facts of the case, allowed the consumer complaint vide its order dated 17.03.2012 in the above manner. This led the complainant to file a consumer complaint before the District Forum, Udhamsingh Nagar. The District Forum, after an appreciation of the facts of the case, allowed the consumer complaint vide its order dated 17.03.2012 in the above manner. Aggrieved by the said order, the opposite party No. 2 has filed the First Appeal No. 63 of 2012, while being dissatisfied with the quantum of compensation awarded by the District Forum, the complainant has filed the First Appeal No. 138 of 2012 for enhancement. Dr. Nishant Agarwal, Pediatrician & Manager, Sanjivani Hospital, Khatima has been impleaded in both the appeals as respondent No. 2 and respondent No. 1 respectively. Since, both the appeals arise out of the same order, hence, these are being disposed of by this common order. 3. We have heard the learned counsel for the parties in both the appeals and perused the material placed on record. 4. Learned counsel for the opposite party No. 2 (appellant in First Appeal No. 63 of 2012) argued that the Expert Committee constituted by the Chief Medical Officer, Udhamsingh Nagar has given its finding that the opposite party No. 2 has not committed the medical negligence in the treatment of the complainant. The learned counsel submitted that the complainant was suffering from various ailments such as tuberculosis, hernia, blockade of urinary track etc. and, therefore, the opposite party No. 2 had to perform the operation in accordance with the methods prescribed in medical science in such emergency cases. Whatever complications surfaced up after the operation, these were due to the reason that the complainant was also suffering from tuberculosis and anaemia. The learned counsel emphasized on the word “Shayad” (or probably) used by the Expert Medical Committee in its report and argued that even the Committee has not given a conclusive finding whether the mesh was properly implanted or not during the operation performed by the opposite party No. 2. Therefore, in absence of any conclusive evidence, the District Forum has made a gross factual error by holding that the opposite party No. 2 has committed medical negligence in the said operation. He also referred to the medical prescription dated 03.03.2010, wherein it is stated that– “- Discharging pus from operated area from 5 days - Insomnia from 5 days - Loss of appetite from 12 days” 5. He also referred to the medical prescription dated 03.03.2010, wherein it is stated that– “- Discharging pus from operated area from 5 days - Insomnia from 5 days - Loss of appetite from 12 days” 5. The learned counsel, thus, argued that the complications, as stated in the medical prescription dated 03.03.2010, surfaced up after one year of the said operation. The complainant has failed to prove that these complications had been continuing since the day the operation was performed by the opposite party No. 2. As is evident, the complainant was suffering from other diseases and these complications were the result of these ailments. 6. The learned counsel for the complainant (appellant in First Appeal No. 138 of 2012) reiterated the facts of the case and submitted that the compensation awarded by the District Forum is inadequate, because the treatment continued for about one year. The complainant being a labourer had to suffer a lot, physically as well as mentally and financially during this period. Therefore, the compensation be awarded, as per the prayer made by the complainant in the consumer complaint. 7. The learned counsel for Dr. Nishant Agrawal (respondent No. 1 in First Appeal No. 138 of 2012 and respondent No. 2 in First Appeal No. 63 of 2012) submitted that there is no award against him. Otherwise also, the role of the opposite party No. 1 was only upto providing the facilities for conducting the tests, operations and nursing services. The complainant has made no allegation against him in respect of these services. 8. We considered the submissions made by the learned counsel for the parties. Though the judgment and order passed by the District Forum is well discussed, but we are of the view that a proper and just appraisal of the most important evidence pertaining to the consumer complaint has not been made by it and that evidence is the Medical Committee’s report, which is at Paper No. 33 on the record of First Appeal No. 63 of 2012. The Medical Committee has very clearly stated that prima facie, no case of medical negligence is made out against the opposite party No. 2. The Medical Committee has very clearly stated that prima facie, no case of medical negligence is made out against the opposite party No. 2. Instead of considering this finding of the Medical Committee, the District Forum has picked up the words from the report that probably the mesh could not be implanted properly during operation, because of the complexities involved in such cases of operation where the patient is suffering from the diseases like tuberculosis and anaemia. While the first part of this report reflects that the mesh was not implanted properly, the second part of the report clarifies its reason. If we confine ourselves to the first part, then it leads us to believe that the opposite party No. 2 had committed medical negligence, but we should also consider the later part of the sentence, which says that it is a complex situation to implant the mesh in such cases, where the patient also suffers from the diseases like tuberculosis and anaemia. That means, the complications, which surfaced up after the operation, were not due to negligence committed by the opposite party No.2, but these were due to other ailments. It is also important to note that the medical opinion of the Committee was submitted on the directions issued by the District Forum. If there was any ambiguity in the report, then the District Forum should have referred it back to the Committee. The District Forum cannot ignore the resultant finding of the Medical Committee that Dr. A.M. Raturi, Surgeon, has not committed any medical negligence. Once a medical opinion has been sought, the District Forum cannot base its findings on the principle of res ipsa loquitur. To disprove the findings of the Expert Committee, the complainant will have to adduce evidence in the form of medical opinion of other doctors. In the instant case, the second operation for removing the mesh was performed by Dr. Prem Singh, Surgeon. The medical prescription dated 03.03.2010 (Paper No. 42) stated that the pus started discharging from the operated area from five days, that the patient was suffering from insomnia from 5 days and that he had lost his appetite from 12 days. This shows that these complications were not continuing since the day the operation was performed by the opposite party No. 2, but these complications surfaced up five to twelve days before the complainant consulted Dr. Prem Singh, Surgeon. This shows that these complications were not continuing since the day the operation was performed by the opposite party No. 2, but these complications surfaced up five to twelve days before the complainant consulted Dr. Prem Singh, Surgeon. Therefore, it would be most unjust to attribute these complications to the operation conducted by the opposite party No. 2 on 28.01.2009. This is an admitted fact that the complainant was also a patient of tuberculosis and anaemia and at the time of operation, he had some problem in his urinary track. So, as the Medical Committee has stated, Dr. A.M. Raturi, Surgeon, (opposite party No. 2) performed the operation in a very complex situation. It is also well accepted fact that there are always chances of some post operative complications and these chances are more in a case like that of the complainant. So it would not be just to hold the treating doctor always guilty of committing negligence in treatment in every case, if some complication is developed at a post operative stage. Therefore, we are of the view that the District Forum’s finding, in respect of the allegations made by the complainant against the opposite party No. 2, is erroneous and it has failed to consider the facts and circumstances of the case in its totality, rather it appears to us that the District Forum’s finding is based more on the fact that the complainant is a labourer and the treatment continued for about one year and, therefore, it took a sympathetic view in favour of the complainant. We have also all the sympathy with the complainant, but the Consumer Forum is not meant to provide social and financial security to such under privileged persons on the cost of unjustifiably punishing the doctors and asking them to pay compensation in each and every case, if the treatment continues for a long period. Holding a doctor negligent is a very sensitive issue and while taking a decision against a doctor, the Consumer Forum must take into consideration all the facts and circumstances of the case and should see whether it was just a chance or the doctor had really made a negligence. In the instant case, there is no conclusive evidence against the opposite party No. 2 in respect of alleged medical negligence. In the instant case, there is no conclusive evidence against the opposite party No. 2 in respect of alleged medical negligence. The medical prescription dated 03.03.2010 clearly states that the complication surfaced up after one year from the date of complainant’s operation. The Expert Committee says that prima facie, no case of medical negligence can be made out against the opposite party No. 2. The medical literatures, as referred by the opposite party No. 2, and Expert Committee’s Report support the contention of the opposite party No. 2 that the operation and implantation of mesh in the case, where the patient also suffers from other ailments like tuberculosis, anaemia, may give rise to infection and operation in such cases is a complex one. So, considering all these facts and circumstances of the instant case, we are of the view that the First Appeal No. 63 of 2012 filed by the opposite party No. 2 is liable to be allowed and the order dated 17.03.2012 passed by the District Forum, Udhamsingh Nagar is liable to be set aside. As a result, First Appeal No. 138 of 2012 filed by the complainant is liable to be dismissed. 9. Accordingly, First Appeal No. 63 of 2012 is allowed. The impugned order dated 17.03.2012 passed by the District Forum, Udhamsingh Nagar is set aside and the consumer complaint No. 13 of 2011 is dismissed. First Appeal No. 138 of 2012 is dismissed. No order as to costs. 10. Let the copy of the order be kept on the record of First Appeal No. 138 of 2012.