State Consumer Disputes Redressal Commission
Dr Yogesh Shah vs Shri Balkrishna D Potdar on 29 March, 2023
Details DD MM YYYY
Date of Judgment 29 03 2023
Date of Filing 02 06 2015
Duration 27 09 7
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
STATE OF GUJARAT
COURT -5
APPEAL NO. 1006 OF 2015
APPELLANT: Dr. YOGESH SHAH
Vijay Hospital, Khadia Pole-1,
Palace Road, Vadodara. 390001
V/s.
RESPONDENT: Mr. BALKRISHNA D POTDAR
B/33, Katiyarknagar Society,
Nr. Wadi, Shastri Baugh,
Vadodara. 390017
CORUM: Mr. R N Mehta, Presiding Member
Appearance: Mr. (Dr). M K Joshi, Advocate for Appellant
Mr. (Dr). R G Dwivedi Advocate for Respondent.
(Order by Mr. R N Mehta, Presiding Member)
[1]. Being aggrieved and dissatisfied by the order and judgment dated 9th April 2015 of the District Forum, Vadodara in Consumer Complaint no. 602 of 2010, the appellant herein prefers this appeal under provisions of Section 15 of The Consumer Protection Act, 1986 (herein after referred as "Act" or "The Act") and submits that the order passed by the District Forum is illegal, unjust, arbitrary in nature, contrary to well established principles of law and also contrary to evidence on record and therefore it deserves to be quashed and set aside. Although the appeal was preferred with delay of about 23 days, this Commission vide order dated 11/9/2015 ordered to condone delay and hence appeal was registered.
[2]. For the convenience, parties are addressed to its original nomenclature. The District Forum, Vadodara had directed the opponent to pay the sum of Rs. 7,00,000/- to the RNM A10062015 Page 1 of 15 complainant with interest at the rate of 9% from 26/5/2009 till realisation. It was also further ordered that the opponent shall pay Rs.10,000/- towards mental torture and harassment and Rs.5,000/- by way of cost of litigation. It is this order under challenge.
[3]. (a). It was case of the complainant before the District Forum that he was suffering from kidney stone and for removal he had consulted the opponent on 26/5/2009, who performed "Ureteroscopy" and because of carelessness and negligence, injured left ureter of complainant, which causes him permanent pain and disablement. It was also further alleged in the complaint that he was kept in dark about the said injury on that day but during follow up treatment, he then referred the complainant for USG and asked to consult another doctor. It was alleged that the complainant was neither given reference letter in writing nor given treatment papers. The complainant stated that from the USG it was revealed that there was injury to his ureter and therefore he consulted another nephrologist of the city. The complainant alleged that for repair and treatment of this injury he had to incur expenditure of more than Rs.3,00,000/- and will have to incur more in future also and therefore he had prayed for compensation of Rs.10,00,000/- in complaint.
(b). On issuance of notice, the opponent appeared through advocate and filed detail reply contending therein that the complainant has suppressed material facts and knowingly not placed on record correct facts. It is contended that complainant has produced distorted facts to extort money from the opponent. It is denied that complainant had suffered any pain after "Ureteroscopy" because of any carelessness or negligence on his part. The opponent has specifically denied to have performed Ureteroscopy with negligence and as a result thereof complainant had been suffered on account of injury as it alleged. The opponent is qualified doctor possesses degree of Master of Surgery (MS) and having experience of about 18 years as urologist. In his hospital, there are qualified staff and ultramodern equipment for the treatments of patients. The opponent is giving honorary services to Jalaram Hospital, Sterling Hospital and at Adarsh General Hospital. The opponent stated that complainant consulted him through reference of a common friend Mr. Dinesh Patel on 26/5/2008 and he was having sonography report showing about 17 stones in his kidney. After examination he was asked to come with pathological investigations and further sonography. When he returned with reports, it revealed that size of stone was RNM A10062015 Page 2 of 15 increased and there was retention of urine about 55cc. The pathological investigations were suggestive of blood and protein release in urine.
(c). Considering total circumstances, he was given two options Lithotripsy or PCNL. Complainant was counselled in presence of his friend that Lithotripsy may take more than one sitting whereas PCNL can be done in one sitting. Since the complainant was not ready for any puncture, lithotripsy was performed on 29/5/2008. Even after X-ray thereafter he was counselled that PCNL would be better, but complainant was afraid of cut/puncture and refused for PCNL. On 19/6/2008, second sitting was done for Lithotripsy. Again on 28/6/2008, X ray showed stones were broken. However, the complainant did not follow up thereafter till 11/5/2009. He was again examined, X-ray / sonography done, pathological investigations were carried out. However it was came to know that pieces of stone were fixed on left side. The complainant and Dineshbhai both were given detail information including risk factors involved therein. It was specifically explained that stones lying there since long which might have affected interior wall of the vessels which might have caused infection also. The complainant again insisted for removal of stone. On 26/5/2009, Ureteroscopy was done and stenting was done. While withdrawing ureteroscope, it has caused minor damage to vessel. This was explained to complainant, his relatives and to Mr. Dineshbhai. Since they asked for reference letter to consult another urologist at Nadiad hospital, it was given in writing. On 27/5/2009, sonography showed that left kidney was normal, vital clinical parameters were normal and therefore advised for antibiotic and asked for follow up visit. On 1/6/2009, he was stable and therefore catheter was removed with advice for surgery since ureter was damaged. Thus there was no negligence on his part and prayed for dismissal of complaint.
(d). The complainant has filed affidavit in rejoinder wherein he has mostly reiterated the facts stated in complaint. Although he admitted that he had consulted opponent on the advice of his friend Dineshbhai Patel, categorically denied that he was suffering from pain at his left side of the abdomen. He admits that he had gone to the opponent with sonography report which was done on 28/5/2008 and thereafter taken treatment as per advice of the opponent doctor. He denied to have refused for any cut or incision as claimed by the opponent doctor on the contrary he alleged that the opponent never disclosed him about any threat / risk or disadvantages of RNM A10062015 Page 3 of 15 laparoscopic surgery. He admits that lithotripsy was done by the opponent on 29/5/2008. He admits that second sitting of lithotripsy was done on 19/6/2008 but then denied that he consulted opponent thereafter only on 11/5/2009. He denied that the opponent informed the relatives in his presence that puncture method is better option for Ureteroscopy. He also denied that due to long existence of the pieces of calculi /stone in the ureter strength of the ureter wall / tube weakened and infected. He denied that he had not consulted the opponent during 11 months. He admits that while stenting and Ureteroscopy, ureter was damaged and relatives were informed to consult another urologist or at Nadiad hospital.
[4]. From the complainant side, together with complaint, copy of notice dt. 2/3/2010, copy of reply to notice, copy of further notice dt. 16/6/2010, copy of medical opinion of Dr. P N Tiwari, copy of bill issued by the opponent, copy of referral letter dt.1/6/09, copies of medical prescriptions, bills, investigation reports, laboratory bills, X-ray etc. were produced.
[5]. The District Forum, after hearing both parties came to conclusion that the opponent doctor is guilty of negligence in rendering treatment to the complainant and to arrive at such conclusion following observations have been made:
"It is admitted fact on record that complainant has taken treatment for kidney stone from the opponent doctor and it is also admitted fact that on 26/5/2009 lithotripsy was done by the opponent and during operation there was damage to the pipe and torn.... It is required to be noted that the complainant (opponent?) himself has advised to complainant to go at Nadiad or consult some other Neurologist (nephrologists?) in Vadodara. From the documents produced on record by the complainant, it appears that thereafter, the complainant has taken treatment from Dr. Sanjay C Shah Urologist. NO doubt that opponent doctor is also Urologist and considering his qualification it can be said to be expert so far the disease is concerned relating to kidney. When it is admitted that there was ureteric injury while doing Ureteroscopy then in that case, this Forum is of the opinion that onus shifted to opponent to prove that he was not at all negligent while doing the operation. It is the case of the opponent that complainant visited after 11 months and due to that stone in kidney remained for long time. The pipe became weak and due to this, this may happen. However, in support of this contention, no evidence is produced on record by the opponent nor submitted any expert opinion on this subject. On the contrary, the complainant himself has taken expert opinion of Dr. Tiwari. His medical opinion with affidavit is produced on record vide list 3-page no. 12. We have gone through this report wherein the facts of the case are also stated that ureter was damaged by the opponent while inserting the cannula/catheter. The opponent had doubt of ureter injury so advised complainant for abdominal sonography to access the damage done during second sitting. During this period, complainant was continuous treatment with the opponent. It was found that there was 22 x 21 mm size stone in the left kidney. It also appears that the present complainant was approached to the another urologist doctor who was expert and was properly examined and investigated by routine, X-ray abdomen, sonography and finally IVP a process which pin pint the size and location of pathology stone/ or out growth. Expert has also opined that if the size of stone is bigger than 15 mm then stone is removed via open abdominal route. If urologist doctor is very expert and experienced, then such stones can be removed through ESWL process. It was also observed after completion of first stage of process of ESWL, complainant was again advised for removal of kidney stone, about one year, and opponent asked the complainant to choose the type of operation to be done doctor. He said that you know better for his case. It is also stated that during second sitting of operation, left urine duct called ureter was damaged while introducing the catheter and was confirmed RNM A10062015 Page 4 of 15 by abdominal sonography. The complainant was verbally asked to go another doctor for his case as case had gone out of doctor's hand. Complainant condition was critical due to damage of ureter and in fever. In this serious condition, the complainant neither advised admission nor was any treatment given or referred to another doctor. In written statement, these facts were admitted by the opponent. It also appears that the complainant was re-operated by another doctor a major abdominal surgery was done left side of abdomen called renal area and big stone with many small stones were removed by second doctor. Complainant remained admit for one month and still under his treatment. In the expert opinion, diagrammatic presentation is also made by the doctor. He has given opinion on the available facts. He has stated that the complainant was known case of kidney stone. The opponent doctor damaged left ureter and verbally referred the complainant in very critical condition to elsewhere for further treatment. The opponent himself noticed the trauma to the ureter and was confirmed on abdominal sonography report. No IVU was ever done or advised by the opponent doctor to pin point the left kidney stone and its size and correct location. All process was depended on sonography report. The opponent doctor has accepted his own negligence as cutting / damaging of left ureter. Still no treatment was advised or referred to another senior urology surgeon for prompt care to save the life of the complainant. The complainant was left in very critical condition when his kidney was about to fail due to the damage occurred during second sitting of ESWL. Failure in diagnosis or treating or managing the complication or not referring properly to higher centre, amount to negligence and deficiency in medical service. Here damage was confirmed by the opponent but did not care accordingly. He has also referred to BOLEM.s tests. Damages should be proximate to the act and remote damages are neither negligence nor deficiency in medical practice. Here all such facts have been traceable. Negligence is proved as proximate to act done by opponent during second sitting operation for removal left kidney stone where left ureter was damaged. This opinion is given on affidavit. Except stating defence in written statement, in absence of expert opinion of doctor, defence cannot be considered. No evidence is produced on record by the opponent. If we refer page no. 32, Exh-3 list, this is referred note by the opponent referring the complainant for USG to Dr. Komal Kothari dt. 1/6/2009 wherein the opponent has very specifically stated that L ureteric trauma + during Ureteroscopy at page 33.i.e., USG report, in conclusion it is stated by Dr. Komal Kothari consultant radiologist that approximately 93(length) x 159 (AP) mm size hypo echoic liner collection is seen anterior to psoas muscle on left side. Thin rim starts from the lower pole of left kidney and lower end goes till the iliac vessel bifurcation." (Emphasis supplied) [6]. The District Forum also observed in the impugned order that all though the application for cross examination of Dr. Tiwari was sought by the opponent and Forum had granted permission to submit interrogatories in writing but the opponent did not do it and therefore District Forum had given due weightage to the report of Expert on record. The Forum also observed that while giving opinion, the said Dr Tiwari had referred medical books and the said extracts have been part of record. To deal with argument of the opponent doctor that patient did not consented for PCNL and therefore lithotripsy was opted, the Forum observed that what is better is required to be decided by doctor and not by patient. The Forum also observed that when the complainant had asked for case papers, the opponent did not provide it. Although the opponent submitted that it was sent by post, no evidence was produced on record and therefore Forum did not believed it. Thus on the aforesaid premises, the District Forum held that it is a case of res ipsa loquitur and therefore the opponent is guilty of negligence.RNM A10062015 Page 5 of 15
[7]. (a). Mr. (Dr) M K Joshi, advocate appearing for the appellant submitted that the complainant has suppressed the basic information that he had taken treatment in 2008 from the opponent and also concealed that he had visited with USG report showing renal stone of 17 mm size in lower calyx. He was advised for X-ray KUB which was done and found that he had stag horn calculus 21.9 x 21.1 mm. Complainant was explained lithotripsy and PCNL the methods of treatment. When patient consented for Lithotripsy on 29/5/08, shocks were given and were advised to visit after 3/4 weeks with fresh X-ray. He came on 17/6/08 which showed fragments of stone. Second sitting was carried out on 19/6/08 and on that day also shocks were given. On 28/6/08, X-ray showed stone broken satisfactorily. He was again advised to come after 3 / 4 weeks but he did not come and came only on 11/5/2009. Again, sitting of lithotripsy started and it caused damaged which is known complication. He was advised for surgery but he did not turn up. Since it is known complication, it cannot be said that doctor was negligent in any manner. Mr. Joshi also submitted that Dr. P N Tiwari cannot be said expert since he is merely MBBS. He cannot have detail knowledge like urologist and therefore his report cannot be relied upon. He submitted that despite instruction for further visit, the complainant did not returned till eleven months and due to this delay, the broken stone got fixed to ureter and made it rigid. After return of patient, the opponent doctors first advised Ureteroscopy for removal of impacted stone and if not successful then only open surgery which is standard practice. However due to delayed procedure, damage occurred during removal of ureteroscope. He submitted that when complainant has not come with clean hands his complaint should not be entertained under the provisions of The Act since it is summary procedure. He then prayed for dismissal of complaint and order to set aside award passed by the District Forum.
(b). Mr. (Dr) R G Dwivedi submitted that District Forum has rightly applied principle of Res Ipsa Loquitur and rightly held that the opponent is guilty of negligence. He also submitted that report of an Expert Mr. (Dr ) Tiwari is unchallenged since the opponent has not opted for his cross examination even through interrogatories. When the case of the complainant is supported by the expert opinion, it cannot be said that the order was not in accordance with law. He also submitted that the so called treatment papers produced on record at appellate stage were not part of record before District Forum and therefore it cannot be looked into. He has placed on RNM A10062015 Page 6 of 15 record following authorities to support his submissions. (i). 2011-4-CPJ-608(NC), (ii).
2013-1-CPJ-6(SC), (iii). 2010-5-SCC-513, (iv). 2009-3-CPJ-17(SC), (v). 2005-3- CPJ-9(SC), (vi). 2009-2-CPJ-61(SC), (vii). 2020-1-CPJ-3(SC) [8]. I have gone through the entire record of this case, rival submissions, report of an expert, complaint, written statement etc and of the opinion that following facts are not in dispute or say do not require any further proof. The complainant has admitted in his rejoinder affidavit that he had taken treatment from the opponent in 2008 but he has not mentioned the said facts in the complaint and therefore it is believed that knowingly he had suppressed this information. It is also interesting to note that when complainant served notice to the opponent, he replied to notice and a copy thereof is also produced on record by complainant. It seems that the opponent had mentioned true facts in reply to notice. Even then, when complaint was filed, those facts were suppressed in complaint. This shows the intention of the party to suppress correct facts from the CDRF. This is also important because these facts seem to have not disclosed to Dr. Tiwari, who has given expert opinion in this case. The statement given by complainant before Dr. Tiwari is produced on record and it is silent about treatment taken in May 2008. As against that reference letter of opponent Dr. Shah addressed to Dr. Komalbhai dt. 1/6/2009 (page 32 of compilation filed by complainant) categorically mentions therein to do USG and to see L "Ureteric Trauma" during Ureteroscopy. This gives an impression that the opponent doctor has given complete accounts of treatment and fair enough to explain correct facts and therefore he is more credible then complainant.
[9]. Another controversy is regarding type of surgical method adopted by the opponent doctor at the instance of the complainant. It is the case of the opponent doctor that he had explained more than one method for treatment of kidney stone, however, being afraid of cut or incision, the complainant insisted for laser surgery. The complainant has denied this fact in rejoinder affidavit. The District Forum observed, in its order, that it is the doctor who has to decide better method available and not the patient. While observing this, the District Forum ignored the statement given by the complainant before Dr. Tiwari though it is part of record. In the said statement, he had written that the opponent doctor explained him two to three types of method of surgery out of which he had selected laser type surgery. This statement recorded by RNM A10062015 Page 7 of 15 Dr. Tiwari and signed by complainant himself. This is another evidence of complainant not presenting correct facts before District Forum.
[10]. While appreciating the expert opinion of Dr. Tiwari, the District Forum relied upon following observation of expert. "The opponent doctor has accepted his own negligence as cutting / damaging of left ureter. Still no treatment was advised or referred to another senior urology surgeon for prompt care to save the life of the complainant. The complainant was left in very critical condition when his kidney was about to fail due to the damage occurred second sitting of ESWL"
From the plain reading of this observation, according to expert, injury was caused during second sitting of ESWL. As such these facts are not correct. When fact is admitted by the complainant that he has taken treatment in May2008, it was expected from him to narrate in details or to produce case papers. However, he has not produced case papers saying the papers were not supplied by opponent despite demand. Be that it may, Mr. Joshi has produced those documents with appeal memorandum, to which Mr. Diwvedi objected raising contention that these documents cannot be seen as the same were not produced before District Forum. I am of the opinion that when complainant has admitted facts that he had taken treatment in May 2008 and those facts are not disclosed in complaint, documents pertaining to those treatments can be seen to ascertain whether the said treatment has any bearing on subsequent event or not. The documents where signature of complainant is found cannot be ignored for proper adjudication of this case. In these case papers, there are three consent forms which bear signatures of complainant. Out of these, forms dated 29/5/08 and 19/6/08procedure mentioned is "left renal stone ESWL procedure". Third form is dated 26/5/09 wherein surgery is mentioned as "Left URS + Litho". Now in this third form, there is no history recorded that during previous sitting injury had been caused. Even otherwise also, had the complainant injured on 19/6/08 (date of second sitting), he would not have remained silent for this long period of 11 months. Injury must have given rise to develop other symptoms during this period of 11 months. It is therefore, unhesitatingly, I hold that injury was not caused during second sitting of treatment in 2008. It is now established that complainant has not disclosed details of two sittings of ESWL in 2008. This gives clear inclination that complainant do not want correct facts come on record and willingly tries to distract the correct adjudication of facts. If the written statement of opponent is taken to its true spirit, RNM A10062015 Page 8 of 15 second sitting was arranged in 2008 and not in 2009. It is case of even complainant that injury caused to his ureter in 2009. Thus the report of an expert is based on false observation and therefore cannot be relied upon. When the basic facts are not correct, which goes to the route of the matter, then observations made by expert from those facts are of little relevance.
[11]. It is the case of the opponent doctor that after second sitting, when the complainant was advised to come after 3 / 4 weeks for further procedure, he did not turned up. Now it is not even case of the complainant that during this period of 11 months he was under treatment of opponent doctor. No document is produced to that effect. Not a single prescription is produced to show that complainant had approached opponent doctor between July 2008 to May 2009. There is no piece of evidence which suggests that complainant has ever given history to Dr. Tiwari about injury during treatment in 2008. From where Dr. Tiwari gathered information that injury was caused in second sitting; the source thereof is not established. Dr. Tiwari claims himself an expert and having MBBS, he must know that in ESWL, high energy shock waves are passed through the body and used to break stones into pieces as small as grains of sand and because of its small size, these pieces can pass from the body along with urine. If these stones left untreated, it get stuck in ureter and causes blockage which leads to intense pain and may develop kidney infection and even sepsis. It is case of the opponent doctor that after giving shocks, stones were broken during second sitting, but since complainant did not turned up what had happened to those stones that was not known to doctor till he returned after 11 months. When ureteric tube injured, he therefore said that ureteric wall must have been infectious and weak. According to opponent it is known complication. A medical book titled "Essential Urology" written by Nigel Bulllock and Gary Sibley describes potential risks or complications after shock wave lithotripsy as under:
" Blockage in ureter, Blood in the Urine or bleeding around the kidney, infection, mild discomfort or bruising on the back and painful urination."
It also describes complications of lithotripsy which includes bleeding around kidney, infection, obstruction of the urinary tract by stone fragments and stone fragments left that may require more lithotripsy. In the instant case, it is case of the opponent that after second sitting, patient did not turn up and stone fragments removed or inside that was not known to him till he returns. When he examined patient, he found that stones RNM A10062015 Page 9 of 15 were accumulated inside and therefore infection. The opponent doctor has administered injections of antibiotics itself is suggestive that he had taken note of existence of infection. Dr. Tiwari, being an expert should come out with concrete finding that it was not because of known complication but due to carelessness on the part of the opponent doctor. I have perused the papers considered by the said expert and could not find any such efforts have ever been made by the said expert. Therefore, the expert is failing in his duty to bring on record the material which would give strength to his observations. Now when the expert has not studied case details and blindly relied on information given to him, inference drawn by him cannot be relied upon.
[12]. One of submission of Mr. Joshi, LA for appellant is that Dr. Tiwari was not competent to give expert opinion in this matter. He refers paragraph 16 of the written statement wherein it has been submitted that Dr. P N Tiwari is not doing "medical practice" and he is not authorised to give opinion pertaining to subject matter of Urologist and also challenged that he is medical expert. In support of this submission, Mr. Joshi has cited case adjudicated by this Commission in the matter between Jagrut Nagrik vs Jalaram Hospital (2006-3-CPJ-217 (Guj.) wherein it has been observed by this Commission that he is merely MBBS. Mr. Joshi further submits that in his report Dr. Tiwari has stated that he is MBBS. Mr. Joshi therefore submits that it is not in dispute that opponent doctor is more qualified than Mr. Tiwari. Therefore Dr. Tiwari cannot act as judge to give opinion on the action of a doctor having superior qualification. I have read the expert opinion. Dr. Tiwari has mentioned that he is having 25 years of medical and surgical experience. He has done maximum small operations independently and assisted many major surgeries. He also stated that he is in service of creating awareness of consumer rights in medical negligence under Registered NGO named "UJAS". I take written note / statements from both the parties after personally examining and detail questioning before giving opinion. In his report he has stated that no specific consent was taken from the complainant. In the said report, para 4 and 5 of the facts stated by Dr. Tiwari reads as under:
"In second sitting operation which was about one year after, complainant was asked to choose the type of operative process which was to be adopted.
During second operation, ureter was damaged by the respondent while inserting the cannula/catheter. The respondent had doubt of ureter injury so advised complainant for RNM A10062015 Page 10 of 15 abdominal sonography to access the damage done during second sitting. In this one-year duration, complainant was continuous treatment with the respondent"
All these facts are incorrectly recorded. First sitting was in May 2008 and second sitting in June 2008 and therefore there cannot be a gap of one year. Dr. Tiwari observed that damaged caused during "insertion of cannula" whereas the opponent states that it caused damaged while "withdrawing ureteroscope". To disprove case of the opponent doctor as to injury caused during withdrawal of ureteroscope, Dr. Tiwari must prove from the nature of injury or from other sources that such injury causes only during insertion and not during withdrawal. There is nothing on record. Dr. Tiwari observed that opponent doctor had doubt about ureter injury and therefore advised complainant for abdominal sonography. This fact is also incorrect because in his reference letter opponent doctor has categorically mentioned that there is "ureteric injury". Therefore all observations made by Dr. Tiwari is baseless and without any scrutiny of documents. It is proved on record that complainant has categorically stated that he himself opted for laser surgery but even then Dr. Tiwari reports that there was no express consent! It is rather complainant's case that after damage opponent doctor advised to him and relatives to go to Nadiad or to consult another Urologist. Whereas Dr. Tiwari reports that in serious condition, complainant was neither advised admission, nor given any treatment or referred to another doctor.
[13]. Dr. Tiwari has given his opinion in following words:
"Complainant was a known case of kidney stone.
Complainant consulted respondent who advised laser surgery.
Respondent doctor damaged left ureter and verbally referred the complainant in very critical condition to elsewhere for further treatment.
Respondent himself noticed the trauma to the ureter and was confirmed on abdominal sonography report.
No proper routine urine test was done to confirm the nature of stone in the urine was present. No IVP was ever done or advised by the respondent doctor to pin point the left kidney stone and its size and correct location. All process was depended on sonography report. Respondent doctor has accepted his own negligence as cutting / damaging of left ureter. Still no treatment was advised or referred to another senior urology surgeon for prompt care to save the life of the complainant.
Complainant was left in very critical condition when his kidney was about to fail due to the damage occurred during second sitting of ESWL.
Respondent doctor did not co-operate with the single medically qualified and experienced investigator at the time of taking his statement for giving opinion in this case.RNM A10062015 Page 11 of 15
Failure in diagnosis for treating or managing the complication or not referring properly to higher centre amount to negligence and deficiency in medical service.
Also negligence should be of grave in nature and clearly prove positive to res ipsa loquitur and in reference to Bolam's test. Damages should be proximate to the act and remote damages are neither negligence nor deficiency in medical practice.
Here all such facts have been traceable.
Negligence is proved as proximate to act done by respondent during second sitting operation for removal left kidney stone where left ureter was damage."
In the aforesaid report, it do not suggest that expert has taken any pain to find out any negligent act having been committed by the opponent doctor. Just because Dr.Tiwari claimed that he is expert it cannot be accepted as gospel truth. He has to prove either from his qualification or from knowledge in specialised subject. His MBBS degree cannot be said sufficient to give opinion on the act of super specialists. I am afraid that if experts like Dr. Tiwari is encouraged, who under the name and guise of public service through NGO, doing unauthorised professional activities which he cannot do otherwise, it may cause great damage to the society. It is to be remembered that Consumer Disputes Redressal Agencies are established to redress the grievances of consumers but not for the purpose of creating grievances to settle scores of personal natures. In Rameshchandra Agrawal vs Regency Hospital Ltd (2009- 4 - CPJ - 27 (SC)) the Hon'ble Supreme Court had observed as under:
"... in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject."
In the instant case, it is yet not placed on record that Dr. Tiwari has studied in urology or has experience in the said subject. Therefore, he cannot be treated as expert in this case. If Dr. Tiwari had brought on record any act which not even ordinary doctor would have done it then his opinion can be considered for those particular act applying Bolam Test. But it is not so in this case. The Apex Court also further observed as under:
"The real function of the expert is to put before the Court all the materials, together with reasons which induces him to come to the conclusion, so that the Court, although not an expert, may form its own judgment by its own observation of those materials. It is not the province of the expert to act as judge or jury. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of RNM A10062015 Page 12 of 15 the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which forms the basis of his conclusions.
If the report of Dr. Tiwari looked from this angle, it can be said that entire report is bias one and not based on correct facts. He has relied upon distorted facts and he gave no clear opinion for the action which was subject matter of dispute. In the instant case, damage to ureter was not in dispute but whether it was damaged because of negligence or not that was the issue. Merely because some damage has caused is not the proof of negligence. The doctor has gave an explanation for probability of cause and in such circumstances, being an expert he was expected to throw light on medical aspect of the matter regarding insertion / withdrawal of ureteroscope / catheter. It was expected from his to show what was wrong done by doctor which can be said negligent act. Negligent depends on many circumstances. To prove negligence through Bolam Test it is to be proved that no other doctor of equal calibre would have acted in the manner like the opponent doctor. It also appears from the report that because the opponent doctor did not give him response when he had gone for investigation to opponent, he has given this bias report. This report is of no use and it is meant for waste paper basket. The District Forum has relied upon his report as if it is the gospel truth. But in fact, the truth lies elsewhere.
[14]. The complainant also has lead no further evidence except the aforesaid report of so called expert. It is well established that mere assertion without mentioning the data or basis is not evidence, even if it comes from expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value. Therefore, I believe report of Dr. Tiwari is require to be discarded. In Achutrao Khodwa vs State of Maharashtra (1996-2-SCC-634) the Hon'ble Apex court observed that the skill of medical practitioner differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a RNM A10062015 Page 13 of 15 doctor acts in a manner which is acceptable to the medical profession and a court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. In the instant case, neither complainant nor expert witness has established any act of the opponent doctor which can be said faulty, erroneous, and inadequate by quality, nature or in manner of performance, it is therefore difficult to hold him liable of guilty of deficiency even. It is also to be noted here that the subsequent treating doctor also have not said anything about the line of treatment selected, the manner of treatment rendered, any violation of ethics of medical profession etc. A well-known case of Bolam vs Friern Hospital Management Committee it was held that it is expected of a professional person that he should show a fair, reasonable, and competent degree of skill; it is not required that he should use the highest degree of skill . Just because a person suffers a bad outcome from medical treatment, does not mean that they have an automatic right to sue for compensation. A medical error is only considered "negligent" if the healthcare practitioner has failed to take "reasonable care". The law does not require a doctor to act "perfectly", but rather, the law requires that a doctor take "reasonable care" in treating and advising a patient, this is not a high or impossible standard to achieve. An element required proof of negligence by the complainant is the proximate cause; the complainant/patient must prove that his injury/sufferance is reasonably connected to the doctor's action, through either but for test or the substantial factor test. The proximate clause relates to the scope of a doctor's responsibility in a negligence case. A doctor in a negligence case is only responsible for those harms that, he could have foreseen through his or his actions. If a doctor has caused damages that are outside of the scope of the risks, then the patient will fail to prove that the doctor's actions were the proximate cause of his injury. In the instant case, neither complainant nor expert has placed on record any concrete evidence which will support the case of the complainants. In Kusum Sharma vs Batra Hospital (2010-3-SCC-480) it was held that the medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patient have to be paramount for the medical professionals.RNM A10062015 Page 14 of 15
[15]. In such circumstances, the District Forum ought not to have held opponent doctor guilty of negligence. This is not the case, where Res Ipsa Loquitur can be applied merely because the opponent doctor has admitted fact that damage has occurred. The finding of Dr. Tiwari is also faulty on the same count. All though many citations have been referred by Mr. Dwivedi, when the complaint fails on facts which are not established, the underlying legal principles thereof will be of no use and therefore not discussed. Heavy burden lies on the complainant to prove negligence on the part of the opponent doctor. If he establishes, prima facie case of negligence, obviously the onus then shifts to the opponent doctor to prove that he was not negligent. In the result, I pass the following order:
ORDER The appeal no. 1006 of 2015 is hereby allowed.
The order and judgment dated 9/4/2015 of District Forum, Vadodara in complaint no. 602 of 2010 is hereby quashed and set aside and the original complaint stands dismissed for want of sufficient evidence.
There shall be no order as to cost.
The office is directed to supply copy of this order to parties free of cost and also send copy to concerned District Forum in pdf format for necessary action at their end.
The office is also further directed to refund the amount that has been deposited as statutory deposit. The advocate for the appellant is directed to furnish bank details to enable the office to refund through RTGS or NEFT.
Pronounced on this 29th day of March 2023.
Mr. R N Mehta Presiding Member.
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