National Consumer Disputes Redressal
Dr. R.C. Sharma vs Jage Ram on 20 December, 2002
ORDER
B.K. Taimni, Member
1. Petitioner was the Opposite Party before the District Forum and Appellant before the State Commission. Having lost out in both the Fora, he has filed this Revision Petition before this Commission.
2. Brief facts of the case are that the Complainant Jaga Ram had some urine problem and on advice from Medical College, Rohtak was advised surgery which the Complainant got done from the petitioner who is a qualified surgeon and is doing private practice. First surgery was done on 7.6.1993. He was operated upon second time as the bleeding was continuing and in spite of second surgery, bleeding continued which was attributed to possible blood cancer. Complainant was them advised to contact Medical College Hospital, Rohtak where he was again operated on 10.7.1993 and again operated during the period of admission between 14.8.93 to 17.9.93 in Medical College Hospital. The Complainant recovered but alleging negligence on the part of the Petitioner filed a complainant before the District Forum who after having the parties, perusal of material and evidence on record found the Petitioner negligent and directed him to pay Rs. 50,000/- as compensation within 2 months of the order failing which amount was to be payable with interest @ 12% p.a. An appeal against this order filed by the Petitioner before the State Commission was dismissed, hence, this petition.
3. It is the case of the Petitioner that when he operated the Complainant on 7.6.1993, he did so on a clear understanding that the Medical College Hospital, Rohtak has advised surgery after finding him if to undergo surgery satisfying themselves after carrying out all the necessary tests and, it is for surgery only, that the patient has come to the Petitioner on his own choice. Only during the surgery when he found that the prostrate of the Complainant was sticking to his rectum which in his judgment was a case of prostrate cancer, did, he remove the prostrate, which after removal, was given to the relatives of the Complainant for pathological tests. No one returned with the report. Since the bleeding continued and since in this view of the Petitioner suspicion was of prostrate cancer, Blood sample was taken and a test called 'Serum Acid Phosphate' was done which was found to be 4.8 K.A. units against 1.4 KA in normal cases. This confirmed the suspicion of the Petitioner that this indeed was a case of prostrate cancer for which Honvan injection were given. One of the consequence of prostrate cancer is that the passage of urine and faeces join each other. It is in these circumstances that the patient was referred to the Medical College. Whatever was done by Petitioner was as per accepted medical practice. There has been no negligence on the part of the Petitioner. Both the lower fora have failed to correctly appreciate the evidence on record hence reached wrong conclusion. These orders need to be set aside. None from the Respondent/Complainant have proceeded exparte.
4. We have seen the material on record. Only negligence alleged against the Petitioner is that firstly no biopsy was carried out before surgery and secondly prostrate was removed without any proof of prostrate cancer. it is not refuted by the Complainant that after examination in the Medical College and after finding him fit to undergo surgery, had advised surgery on the patient to take care of the urinary problem of the Complainant. He of his own went to the Petitioner who being a qualified surgeon carried out the surgery during which he found symptoms of prostrate cancer and on that judgment removed the prostrate. If it is the case of the Complainant that the Petitoner should have confirmed existence of cancer before removing prostate, it will be a tricky situation. We do not appreciate as to how the Petitioner was expected to sew him up, send the sample for biopsy and re-open. This is not an accepted method. It is the judgment of the Doctor on the spot and who is a qualified surgeon and has the necessary experience, which is material. This is not under challenge. It was his judgment that it was a case of prostrate cancer and he removed it. We hear nothing from the Complainant as to what happened to the prostrate given to his relatives for pathological test. Blood sample tested later for Serum Acid Phosphate showed a reading of 4.8 indicative of cancer. Both the expert witnesses, Dr. Yadav, Associate Professor of Urology and Dr. R.S. Dahiya, Associate Reader in Surgery - both of Medical College, Rohtak wo were examined by the District Forum confessed that it is the judgment/assessment of the operating surgeon for large prostrate what matters. Biopsy can be done only if there is indication of Cancer. Since there was no such indication recorded by the Medical College Hospital yet found him fit for surgery, there was no ground for the petitioner to get a biopsy done before the surgery. It was during the surgery that the Petitoner saw symptoms of prostrate cancer based on which he removed the prostrate. It is an admitted position that Serum Acid Phosphate test is indication of cancer and in this case 4.8 K.A. Unit was indication of the cancer. The expert witness Dr. Yadav confirms that both bleeding and rectovesical fistula are known complications after removal of prostrate.
5. In the light of above discussions, we see no negligence on the part of the Petitioner while doing surgery on the Complainant. At best it could be error of judgment in removing the prostrate but there it has been held that error in judgment does not amount to medical negligence. In any case this was not the point here. In our view both the lower forums erred in the appreciation of the material on record. We are unable to sustain these orders which are set aside and the complaint is dismissed. The Revision Petition is allowed. No order as to costs.