National Consumer Disputes Redressal
Dr. V. Srinath & Ors. vs Sh. Gaurav Lamba on 7 July, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 461 OF 2009 (Against the order dated 22.09.2008 in CC No.C-238/2000 of the State Commission, Delhi) 1. Dr. V. Srinath, ENT Specialist, ENT Department LNJP Hospital, Delhi Gate, New Delhi-2. 2. The Medical Superintendent, LNJP Hospital, Delhi Gate, New Delhi-2. 3. Director Health Services, Delhi Government, F-Block, Saraswati Bhawan, Connaught Place, New Delhi. .Appellants Versus Sh. Gaurav Lamba, S/o Shri J.S. Lamba, R/o S-21, Vasundhara Apartments, Sector-9, Rohini, Delhi .........Respondent BEFORE: HON'BLE MR. JUSTICE V. R. KINGAONKAR, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellants : Ms. Bindiya Savara, Advocate For the Respondent : Mr. Amar Nath Sain, Advocate PRONOUNCED ON: 7th July, 2011 ORDER
PER MR.VINAY KUMAR, MEMBER This is an appeal filed against the order of State Consumer Disputes Redressal Commission of Delhi in Consumer Complaint No. 238/2000. In the impugned order, the complaint of medical negligence was allowed and a lump sum compensation of Rs. 50,000/- was awarded to the complainant. The appeal is filed by all three parties, who were OPs before the State Commission.
2. The impugned order was passed on 22.9.2008 and the appeal was filed on 30.11.2009. The appellants claim that 179 days were taken in obtaining the certified copy of the order. Even apart from that, there was a delay of 226 days in filing this appeal. The application for condonation of this delay was considered by this Commission on 22.4.2010 and the delay was condoned. Thereafter, the matter has been considered on merits.
3. The complainant is a young man who was diagnosed to be a case of Deviated Nasal Septum (DNS). His case before the State Commission was that, after qualifying the written examination for NDA selection, he got himself medically examined at OP-2, LNJP Hospital, as a part of the requirement for NDA selection. It was in this medical examination, that he was diagnosed with DNS condition. According to the complainant, he was advised that it could be corrected through a minor surgery. This surgery- called SEPTOPLASTY - was performed on 7.1.1998, under local anesthesia, by OP-1, Dr. V. Srinath.
4. The case of the complainant was that he later appeared before Military Hospital, Bhopal in the process of selection for the Indian Navy. He was declared temporarily unfit due to the above problem and later permanently unfit during examination by the Military Hospital Ambala Cant. This was due to perforation of his nasal septum, which had occurred during the operation performed by OP-1, at OP-2/LNJP Hospital New Delhi.
5. The Complainant consulted another ENT Specialist to explore the possibility of removal of the disability through a second surgery. He was advised against it due to the possibility of complete damage to the nasal septum. On behalf of the OPs, it was contended that after the surgery the complainant had been advised about the need for proper local hygiene of the nasal cavity, as crust formation therein could complicate the case. It was also contended that the Complainant was declared temporarily unfit by Military Hospital Bhopal for DNS problem, jaundice and wax in the ear, which was due to his carelessness and negligence. He was also negligent in not appearing before the Hospital for weakly check up after the DNS surgery.
6. The State Commission has noted that during the medical examination Ambala Cantt the complainant was declared unfit due to perforation in the nasal septum, which had occurred due to the operation performed at the OP Hospital. The OPs have failed to convince the State Commission that perforation in the nasal septum was the result of non-observance of the suggested precaution. The State Commission observed:
It is difficult to believe that a person, in this case a young boy, with such a problem in spite of being advised and being conscious of the fact that his entire career was at stake, would be so negligent that he would not at all maintain the precautions to be taken after the operation.
7. The State Commission therefore, held that the surgery performed at OPs Hospital was the cause for the permanent disability and the resultant disqualification in selection.
Therefore, a lump sum compensation of Rs.50,000/- was awarded by the State Commission.
8. In the appeal before us, the appellants have re-agitated the matter of post-operative nasal hygiene and weekly check up. However, it is not the case of the appellants that the alleged inadequacies, on the part of the complainant, relating to nasal hygiene and weakly check ups, were the cause of perforation of the nasal septum. Nevertheless, the main grounds urged by the appellants are
a) That the impugned order of the Ld. State Commission is full of conjectures and surmises and is highly cryptic in nature.
b) That the impugned order is against the material and evidence on record and is thus arbitrary and whimsical in nature.
c) No independent expert medical opinion has been brought on record to substantiate the allegation of medical negligence.
9. We have perused the records and heard the two counsels. Responding to the allegation of lack of post-operative nasal hygiene, learned counsel for the respondent/complainant pointed out that the record of treatment in this case does not specify what precautions or recommended were required to be observed. We agree with the observation of the State Commission, mentioned in earlier part of this order, that in this case the entire career of the Complainant was at stake and therefore, it is difficult to believe that he could have been so negligent as not to observe the precautions required to be taken after the operation. What is more important is that no evidence has been led by the appellant/OPs to show that the perforation of nasal septum was result of non-observance of the required precautions, or a consequence of use of nasal drops/sprays, as observed by the State Commission. We also do not find any evidence in support of other grounds raised by the appellant.
10. In the course of the arguments, learned counsel for the appellant drew our attention to the comment of the State Commission in para 16 that: some or the other things were amiss while performing the surgery of septoplasty, which caused some unfitness and subsequently resulted in permanent disability, amounts to deficiency in service and medical negligence. He argued that this comment shows that the conclusions of the State Commission are based on conjectures and surmises. We do not agree with this interpretation of the learned counsel. The observation of the State Commission is to be seen not in isolation but in the backdrop of the following admitted facts:-
1. The condition of deviated nasal septum (DNS) was diagnosed in OP-2 hospital.
2. The corrective surgery was performed in OP-2 hospital, by OP-1, Dr Srinath.
3.The medical examination at Military Hospital, Ambala, subsequent to the corrective surgery by OP-1 on 7.1.1998, declared the complainant permanently unfit due to perforation in nasal septum.
4.No evidence has been produced by appellants/OPs to show that this perforation was not caused during the course of the corrective surgery.
5. No evidence has been led on behalf of the OPs to show that the perforation was caused by any acts or omissions of the complainant.
11. We may point out here, that during the course of the arguments, Learned counsel for the appellant produced a copy of a small statistical report on nasal septal perforation. ( Source- US National Library of Medicine, National Institute of Healthhttp://www.ncbi.nlm.nih.gov) Analysis of 197 cases between 1981 and 1995 showed the cause for perforation as surgery-39.2%, decongestive sprays-28.4%. Thus, nasal sprays are a significant cause of perforation. But, surgery accounts for much larger percentage of cases. So, if at all, this analysis does not help the OPs.
In view of the above, we do not find any merit in this appeal. It is therefore, dismissed with no orders as to costs.
.
(V.R. KINGAONKAR, J.) PRESIDING MEMBER ..
(VINAY KUMAR) MEMBER S./-