National Consumer Disputes Redressal
Dr.B.H.Parmar vs Dodiya Manharbhai @ Manubhai on 29 July, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2589 OF 2006 (From the order dated 23.6.06 in Appeal No.573/04 of the State Commission, Gujarat) Dr.B.H. Parmar Petitioner Versus Dodiya Manharbhai @ Manubhai Respondent BEFORE : HONBLE MR.JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioner : Mr.Sumeet Bhatia, Advocate for Ms.Pratibha M. Singh, Advocate For the Respondent : Mr.O.V. Singh, Advocate Pronounced on 29th July, 2011 ORDER
PER VINEETA RAI, MEMBER This Revision Petition has been filed by Dr.B.H.Parmar (hereinafter referred to as the Petitioner) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Gujarat (hereinafter referred to as the State Commission) in favour of Dodiya Manaharbhari @ Manubhai (hereinafter referred to as the Respondent).
The facts of the case according to the Respondent who was the original complainant before the District Forum, are that he was being treated for his stomach ailments by one Dr.P.N.Kharod, a renowned doctor of Surendranagar, who advised that Respondent required gall bladder surgery. Respondent was, thereafter, referred to the Petitioner/Doctor who admitted him as an indoor patient in Dr.Kharods clinic. Petitioner informed the elder brothers of the Respondent that he would do the surgery by laser technique and it would take about an hour. No pre-operative tests were conducted by the Petitioner. On 19.03.1998 when the surgery was conducted, Respondents relatives enquired from the Petitioner whether the surgery was successful but the Petitioner gave a vague reply and also did not show them the gall stones which were removed during the surgery.
Further, even after the surgery, Respondent continued to experience pain and he contacted the Petitioner who informed that the pain will reduce in due course. Dr.Kharod who was consulted, prescribed medicines and gave a similar assurance. However, despite this there was no relief and therefore, a sonography was done on 17.04.1998 which indicated that the stones which were to be removed from the gall bladder, as well as part of the gall bladder were still there, hence the entire surgery was a failure.
Respondent thereafter took treatment from another doctor, Dr. Parikh, who again conducted a sonography and prescribed medicines. Later, Dr.Parikh also performed surgery and removed the stones successfully. Since, Respondent suffered both physical and mental agony and incurred heavy expenditure as a result of the surgeries, he contacted the Petitioner who volunteered to pay Rs.1 lakh. Respondent, however, demanded Rs.5 lakhs as compensation, which the Petitioner first stated that he would pay in instalments and thereafter refused.
Respondent, therefore, filed a complaint before the District Forum accusing the Petitioner of medical negligence and deficiency in service because he did not take due care and precaution either prior to the surgery or during the procedure and requested that the Petitioner be directed to pay the Respondent Rs.4,75,000/- with 12% interest as well as any other reliefs as the Forum may deem fit and proper.
Petitioner has challenged the above contentions and stated that he was a reputed surgeon who had successfully conducted several similar surgeries and there were no complaints against him. In the instant case, during the course of surgery, Petitioner found that the gall bladder of the Respondent was very much enlarged and thick and was firmly stuck to the internal part of the body. Had he tried to pull this out to remove the gall bladder/stones, there was possibility of damage to the main blood vessels and the bile duct which could have endangered the life of the patient. He, therefore, decided to remove only three-fourth of the gall bladder (instead of the entire gall bladder) along with stones in the best interest of the Respondents health. All these facts were explained to the relatives who were present in the hospital during the operation by displaying the same on TV screen.
Further, the operated parts were put in a bottle and shown to the relatives of the Respondent by the staff of the hospital. Petitioner also denied that he had ever offered any money to the Respondent.
Regarding the second successful surgery, he contended that it was possible that the enlargement could have subsided following medicines since the second surgery took place about 11 months after the first surgery. There was no medical negligence and due care was taken both before the surgery and thereafter, in respect of the Respondent.
The District Forum after hearing both parties allowed the complaint by concluding that it was due to the carelessness on the part of the Petitioner/Doctor that the operation of the Respondent was a failure.
It directed the Petitioner to pay Rs.2,50,000/- with 12% interest from the date of application till the date of realization within two months from the date of order.
Aggrieved by this order, Petitioner filed an appeal before the State Commission which upheld the order of the District Forum on the grounds that the Petitioner had failed to substantiate his contention that there was no negligence on his part and that the incomplete surgery was necessitated because removal of the entire stones/gall bladder would have endangered the life of the Respondent. The State Commission specifically observed that the Petitioner did not produce any records with regard to the said operation and it is settled law [Dr.Karun Kothari Vs.Navdeep Clinic (1996) 3 CPJ 605] that the responsibility for clarification with regard to the proceedings held or not held in the operation theatre lies with the concerned doctor. This coupled with the fact that Respondent had to undergo another surgery a few months later which was successful, clearly indicates that it was necessitated because of lack of proper care which led to failure of the first surgery, for which the Petitioner can rightly be held responsible.
Hence the present revision petition.
Counsel for both parties made oral submissions.
Counsel for Petitioner at the outset stated that there was no medical negligence and while it is a fact that Petitioner could remove only three-fourth of the gall bladder of the Respondent, this was an on the spot decision that he took based on his medical skills and knowledge because removing the entire gall bladder would have seriously endangered the life of the Respondent since it could have damaged the main blood vessel as well as the bile duct. Removing only part of the gall bladder under the circumstances stated above is an acceptable medical practice as is evident from the medical literature which was produced before the Fora below. Further, the State Commission in recording that the Petitioner did not produce any records pertaining to the said operation which was necessary to explain what happened during the surgery is factually incorrect.
It was also wrongly concluded that no pre-operative care was taken to check the status of the required organs.
In fact, Petitioner had filed in evidence before the Fora below a detailed Operation Note along with the diagrams clearly indicating that the gall bladder was found enlarged and thick walled as well as other relevant details. Further, it is on record that prior to the surgery, a sonography of the abdomen was conducted on 14.03.1998 at C.U. Shah Diagnostic Centre which inter alia indicated that multiple mobile gall stones were present but that the gall bladder appeared to be of normal size and shape and after assessing this report, the surgery was conducted. However, when the actual surgery was conducted, it was found that in fact the gall bladder was enlarged and very close to the liver because of which the entire gall bladder and stones could not be removed. It is settled law that merely because a particular line of treatment/surgery is not successful, it does not necessarily mean that there was any medical negligence or deficiency in service. In such cases, it has to be proved that there was incompetence on the part of the Petitioner/Doctor as well as lack of due care, absence of bonafide, rashness etc. which was not so in the instant case. The Fora below without taking into account the important documentary evidence which was on record failed to appreciate these facts and erroneously found the Petitioner guilty of medical negligence and deficient in service.
Therefore, the revision petition deserves to be accepted.
Learned Counsel for Respondent reiterated that the Fora below based on factual evidence produced before it had given concurrent findings of deficiency in service and negligence on the part of the Petitioner.
In this connection, Counsel for Respondent pointed out that had due precaution been taken prior to the surgery to check if there was any enlargement of the gall bladder then subsequent problems would not have arisen. The Petitioners contention that he as well as the staff of the Dr.Kharods hospital had kept his relatives informed cannot be relied in view of the conflicting evidence given by Dr.Kharod. The Petitioner himself has admitted that the surgery was not successful for which he alone is to blame because had he taken same care and precautions that were taken prior to and during the second surgery which was successful, the Respondent would not have to undergo mental tension, agony and financial hardship because of the Petitioner/Doctors incompetence and negligence. The Petitioner on whom there was onus to do so has totally failed to prove that he was not guilty of medical negligence and deficiency in service and his revision petition deserves to be dismissed.
We have heard the learned counsel for both parties and have carefully gone through the evidence on record. It is not in dispute that the first surgery was an incomplete one and that a second surgery was necessary which was successfully conducted. The Petitioner has given reasons explaining why during the first surgery, he could not remove the entire gall bladder and stones in the best interest of the Respondents health. It is this contention of the Petitioner which has not been accepted by the Fora below who concluded that there was medical negligence and deficiency in service on the part of the Petitioner/Doctor.
Specifically, the Fora below reached this conclusion for the following reasons:
(i) that the Petitioner/Doctor did not exercise due diligence to check the status of the gall bladder and other relevant details prior to the surgery; and
(ii) the Petitioner/Doctor did not provide any evidence in the form of operation notes to support his contention that he could not remove the entire gall bladder and stones because it could have seriously compromised the blood vessels and the bile duct, thus, endangering the life of the Respondent.
We have perused the evidence filed before the Fora below in this connection and we note that both observations of the State Commission are not factually correct. Petitioner had produced in evidence before the Fora below a detailed Operation Note in respect of the procedure adopted and the surgery conducted on the Respondent clearly indicating the reasons for removing only three-fourth of the gall bladder. There is also a report dated 14.03.1998 from C.U.Shah Diagnostic Centre i.e. 5 days before the surgery, produced in evidence which indicated that the Respondent had undergone a sonography of his abdomen which indicated that there was no contra indication against the surgery. Therefore, the contention of the Respondent and the findings of the Fora below that no notes of the operation were brought in evidence and that no pre-operative diagnostic precaution was taken, are incorrect. On the other hand, Petitioner has apart from the above evidence also provided medical literature on the subject which indicates that it is accepted practice that while performing laparoscopic cholecystectomy if the surgeon feels that the situation while performing the operation is dangerous then he should perform only partial removal of the gall bladder, leaving part of its neck next to the common bile duct. In the instant case, even though the initial sonography may not have revealed that the gall bladder was of abnormal size, once during the surgery, Petitioner found that it was not only enlarged but was also attached to the liver, he took an on-the-spot decision as a skilled and competent doctor in the best interests of the Respondent and duly recorded these facts. Unfortunately, this important evidence was not even considered by the Fora below. Regarding the second surgery while it is not in dispute that this was successful but this by itself cannot lead to a conclusion that the first surgery was a failure. The second surgery was done after about 11 months during which period Respondent was given medicines which perhaps addressed the problem of enlarged gall bladder.
The principles of what constitutes medical negligence are now well established by many landmark judgments of the Supreme Court which in turn have taken note of well-known judgments of the British Courts as well as those of the U.S.A., Canada and Australia on this subject. In the context of this case, it would be relevant to refer to the Apex Courts judgment in the case of Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1 in which the Constitution Bench of the Honble Supreme Court reaffirmed inter alia that the test for determining medical negligence as laid down in the Bolams case (Bolam Vs. Friern Hospital Management Committee (1957)1 WLR 582) would hold good in its applicability in India. While adjudicating allegations of medical negligence on the part of a doctor on the touchstone of the Bolams test, we are required to answer three questions: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated.
In this case, it is noted that the Petitioner/Doctor did possess the medical skills required to conduct this surgery and also it was only after getting the pre-diagnostic test by a registered laboratory that he decided to undertake the surgery. While, it is a fact that the operation was not entirely successful, the reasons for this were clearly recorded in the operation notes. In his best professional judgment, based on the situation which he saw while performing the operation, Petitioner took a considered decision to only partially remove the gall bladder rather than endangering the life of the patient which does not per se indicate any incompetence on his part.
Therefore, applying the principles of what constitutes medical negligence and in view of the facts stated above, we are not convinced that there was any medical negligence on the part of the Petitioner/doctor. The Fora below erred in not taking into account important documentary evidence filed by the Petitioner which included the detailed notes of the operation and the pre-operative sonography of the abdomen conducted before the first operation while reaching its findings.
We, therefore, have no option but to set aside the order of the State Commission and accept the revision petition with no order as to costs.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/