National Consumer Disputes Redressal
S.M. Babar Hayat Quadri vs Dr. A.A. Hai on 25 April, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 477 OF 2014 (Against the Order dated 16/07/2014 in Complaint No. 04/2002 of the State Commission Bihar) 1. S.M. BABAR HAYAT QUADRI S/O. LATE S.M. AHMAD HAYAT QUADRI, RESIDENT OF HAYAT COOTAGE, PANDIT JEE KI GALI, MOHALLA CHUNAUTI KUAN, P.O. & P.S. PHULWARI SHARIF, PATNA BIHAR ...........Appellant(s) Versus 1. DR. A.A. HAI S/O. LATE DR. MD. A. HAI, R/O. HAI COMPLEX, EXHIBITION ROAD, PATNA P.S. GANDHI MAIDAN, DISTRICT-PATNA, BIHAR ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Appellant : IN PERSON For the Respondent : Mr. Braj K. Mishra, Advocate
Dated : 25 Apr 2016 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by the appellant against order dated 16.7.2014 passed by the learned Bihar State Consumer Disputes Redressal Commission, Patna (in short, 'the State Commission') in Complt. No. 4/2002 - Baber Hayat Vs. Dr. Ahmad Abdul Hai by which, complaint was dismissed.
2. Brief facts of the case are that complainant/appellant is an Advocate by profession was suffering from wound in his right buttock for which on consultation with OP/Respondent Dr. Hai in month of May 2000 and after examination it was found to be a case of Fistula-in-Ano, and was advised operation. The operation was conducted by the OP Dr. Hai on 19.5.2000 after payment of huge sum at his Clinic. After the operation, the complainant remained there for few days, but OP never visited the complainant personally and was only looked after by the junior doctors and the complainant was discharged from the clinic on 23.5.2000. Thereafter in month of July 2000 during check-up it resulted into bleeding and again he was advised for the operation which was conducted by the OP doctor on 25.7.2000 for the second time. Six months thereafter of the second operation when the wound did not heal, the complainant consulted other doctors at Patna like Dr. V.R. Sinha, Dr. Ajit Singh, Dr. Rajeshwar Thakur & Dr. Birendra Kumar and all of them opined that the said wound is still in existence and the earlier operation done by Dr. Hai was not in order and it is exceeding day by day touching the prostrate. Thereafter, the complainant was referred to Dr. Samiran Nandi at Sir Ganga Ram Hospital, New Delhi by Dr. Rajeshwar Thakur and on examination, found the wound at Fistula-in-Ano connected with rectum was extended up to Prostrate. Since the cost of treatment estimated was not affordable by the complainant, chose to get himself treated at Patna itself by the OP doctor, Dr. Hai Advised for fresh examination and tests ignoring the other tests done at New Delhi which incurred further more expenses and after deposition of the charges for the operation, the date was fixed for third operation on 2.8.2001. But the said operation did not take place due to misbehaviour and the bad temperament of Dr A.A. Hai and his staff at his clinic and he took back the advance money and filed a complaint case bearing no. 1403/2001 on 1.8.2001 before CJM Patna in which bail was granted to OP on 13.11.2001. The OP moved application u/s 482 of Cr. PC in the High Court vide criminal case no. 35034/01 stood dismissed and again preferred Revision vide case no. 334/03 which is pending. It was alleged by the complainant that due to gross negligent act and lack of care of the OP doctor, the wound of the complainant did not heal even after under the treatment of the OP doctor constantly from 18.5.2000 to 2.8.2001 and the wound extended day by day and has to go for surgery again and again which incurred huge medical expense of about Rs.3,50,000/- and the complainant being the only earning member of his family has to be bed ridden for two years and suffered mental agony. Alleging deficiency on the part of OP, complainant filed complaint before State Commission. OP resisted complaint and submitted that the complainant met OP with high type of Fistula-in-Ano in May 2000 which developed on account of alleged Trauma Buttock of the complainant in January 2000 for which had undergone operation previously somewhere else and in aforesaid high type of wound which mostly re-occurs and required more than one operation. Therefore, after diagnosed of the same disease, the wound of the complainant was operated by opposite party with due care and caution on 19.5.2000 for the first time and since the wound again re-occurred hence, second operation was done on 25.7.2000. After the operation, the patient was examined by OP and also by his assistants who are well qualified to take follow ups. As far as bleeding of the wound during examination done by the junior doctor is concerned, in course of re-assessing such cases, raw tissue tends to bleed, which was not abnormal. The OP doctor has also stated that in such cases, the wound re-occur which is common and in many cases need two stages operation or a multiple stage operation depending on the situation and condition of the wound. The complaint case is vexatious one in order to trouble and extort money from the OP doctor, who is a well-qualified surgeon and treated the wound of the complainant with care and in accordance with the standard procedure adopted by reasonably skilful medical person and when the complainant has not produced any opinion of medical expert on the matter to prove the alleged negligence or any error in treatment given by the OP to cure the said wound, the present OP cannot be held liable for any medical negligence. It has also been mentioned by the OP that under high pressure of patients, the OP is often forced to accommodate his patient on bed not to their liking, depending on the situation and the complainant claiming himself to be respectful person abused the doctors and compounders and created scene like the ruffians and snatched the money away from the compounder even more than given and walked away in huff. Denying any deficiency on his part prayed for dismissal of complaint. Learned State Commission after hearing both the parties dismissed complaint against which, this appeal has been filed.
3. Heard appellant in person and Counsel for respondent finally at admission stage and perused record.
4. Learned appellant submitted that inspite of proof of the fact that respondent failed to probe and take standard care, learned State Commission has committed error in dismissing complaint; hence, appeal be allowed and impugned order be set aside and compensation be awarded. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, appeal be dismissed.
5. As far probe before operation is concerned, complainant's affidavit filed before learned State Commission reveals that his wound Fistula-in-Ano was operated by OP in the year 2000 and before operation several X-ray and pathological examination was done. It was further mentioned that Butno probe was done by OP, but it was also mentioned that probe of wound through microscopic machine would have been done. This affidavit makes it clear that before surgery, OP did probe as well pathological examination and obtained X-ray report and in such circumstances, it cannot be said that before operation no probe was done by OP.
6. As far failure to take standard care after operation is concerned, complainant stated that after operation, OP has not examined him, but junior doctors and compounders examined him to which OP has denied and has specifically pleaded that complainant was examined by himself and also by Assistants who were well qualified to take follow ups. If complainant was not satisfied with post-operative care by OP, complainant would not have gone second and third time to OP's clinic for his surgery and when he has gone second and third time for surgery, it can very well be inferred that complainant was satisfied with post-operative care of OP.
7. Learned appellant has drawn my attention towards Dr. Y.B. Prasad's affidavit in which he has mentioned that in report dated 17.10.2000, the word "NO" in the last para of the report was inadvertently or mistakenly typed by the typist which was unfortunately over looked by him at the time of signing the said report. This statement cannot be believed which is contrary to report given by him and that too in absence of other Radiologist report regarding X-ray dated 17.10.2000. No expert evidence has been filed by complainant to prove his case that requisite care was not taken by complainant during operation and after operation.
8. Learned Counsel for the respondent submitted that Fistula-in-Ano re-occurs and more than one operation and in some cases multiple operations are required. In support of his argument he has placed reliance on medical literature Malgorzata Kolodziejczak, Iwona Sudol-Szopinska in which it was observed that late complication in the form of recurrence of fistula is frequent and is estimated by various authors as developing in 0 to 26.5% cases. He has also drawn my attention towards medical literature of International Foundation for Functional Gastrointestinal in which it was observed that Fistula-in-Ano re-occurs in less than 10% of patient after surgery. It was further observed that nearly half of the patients treated for Fistula-in-Ano had some degree of impairment of continence after treatment. Aforesaid medical literature indicates that Fistula-in-Ano re-occurs for which one or more operations are required and in the light of X-ray report dated 17.10.2000, it can be held that there was no evidence of Fistula-in-Ano after operation, but later on it again re-occurred for which no deficiency can be imputed on the part of OP.
9. Learned State Commission while dismissing the complaint rightly observed as under:
"Having considered the case of the complainant in its entirely, specially in respect of the alleged medical negligence in treating the said wound of the complainant is concerned, we have gone through the material as evidence produced by the opposite party which is an extract of a medical book of Farquarhsons's Operative Technique for the treatment of such kind of Fistula. In view of the suggestion mentioned therein at page 731.732 & 734 we find force in the submission made by the OP that such kind of Fistula which re-occur and needs more than one operation and in some cases multiple stage operation is required. Beside this aspect of the case the complainant has failed to produce any cogent material so as to establish that the OP was not a qualified and experienced doctor to conduct operation in such kind of disease. Moreover, we do not find any expert opinion on the matter so as to show that the OP Doctor was not competent to handle the case and what he did should not have been done. So, in view of the above well settled law, when a surgeon adopted the course of treatment acceptable in medical text, the allegation levelled against the OP doctor of negligence is not proved and for the reason the OP is not liable for any negligence".
10. I do not find any illegality in the impugned order and appeal is liable to be dismissed.
11. Consequently, appeal filed by the appellant is dismissed at admission stage with no order as to costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER