State Consumer Disputes Redressal Commission
Joshi Hospital vs Jaspreet Parhar on 30 May, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.68 of 2019
Date of institution : 20.02.2019
Reserved on : 26.04.2022
Date of decision : 30.05.2022
1. Joshi Hospital, Multi Superspeciality Hospital, Kapurthala Chowk,
Jalandhar, through its Managing Director/Chairman.
2. Dr. Sudhir Sood, Neuro Spinal Surgeon, Joshi Hospital Multi
Superspeciality Hospital, Kapurthala Chowk, Jalandhar.
....Appellants/Opposite Parties No.1 & 2
Versus
1. Jaspreet Parhar, S/o Sh. Ajaib Singh, resident of House No.C-3,
behind Punjab and Sind Bank, Village Reru, Tehsil & District
Jalandhar.
.....Respondent No.1/Complainant
2. The Oriental Insurance Co. Ltd., Divisional Office-3, 4E/14, Azad
Bhawan Jhandewalan Ext. New Delhi 110055, through its Divisional
Officer.
....Respondent No.2/Opposite Party No.3
Appeal under Section 15 of the Consumer
Protection Act, 1986 against the order
dated 18.12.2018 passed by the District
Consumer Disputes Redressal Forum (now
"Commission"), Jalandhar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member.
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellants : Sh. Puneet Sharma, Advocate
For respondent No.1 : Sh. A.S. Gill, Advocate
First Appeal No.68 of 2019 2
For respondent No.2 : Sh. Amit Kundra, Advocate
JUSTICE DAYA CHAUDHARY, PRESIDENT
Miscellaneous Application No.367 of 2019
This application has been filed by the appellants/OPs No.1 and 2-for placing on record the additional affidavit of Dr. Sudhir Sood, Neuro Spinal Surgeon, Joshi Hospital (appellant No.1).
2. For the reasons recorded in the application, the same is allowed and the said additional affidavit is taken on record as Annexure R-1. Main order:
3. The appellants/opposite parties No.1 & 2 (in short the "OPs") have filed the present appeal under Section 15 of the Consumer Protection Act, 1986 (in short "Act") to challenge the impugned order dated 18.12.2018 (Annexure A-4) passed by the District Consumer Disputes Redressal Forum, Jalandhar (in short now the "District Commission") in Consumer Complaint No.481/2015, whereby the complaint filed by respondent No.1/complainant was partly accepted against the appellants/OPs No.1 and 2.
4. Briefly the facts of the case as made out by the complainant in the complaint filed before the District Commission are that he was having severe pain in his left leg, left foot and in his back. For having treatment, he was admitted in Hospital of appellants/OPs No.1 & 2 on 10.12.2014, wherein MRI of the complainant was conducted on the same day i.e. 10.12.2014. As per MRI report it was found and confirmed to be a First Appeal No.68 of 2019 3 problem in L5-S1 Massive Disc Prolapse. Apart from said, other investigations were also conducted by the OPs on the complainant and it was found to be a case of L5-S1 Massive Disc Prolapse. The complainant was operated on 10.12.2014 by adopting the method of Microlumbar Discectomy and the OPs assured that Disc L5-S1 was removed. The complainant remained admitted in the Hospital for the period from 10.12.2014 till 13.12.2014. It was further assured that in future there would not be any problem and certain medicines were also prescribed for follow up and bed rest was suggested. As per averments made by the complainant, he took all precautions of follow up as advised by Doctor (OP No.2) and also took bed rest. The complainant incurred total medical expenses to the tune of Rs.95,000/- including operation charges, room charges, etc. It was further mentioned that some more expenses were also incurred but said amount was not claimed by him. It was further mentioned in the complaint that in the month of March 2015, the complainant faced the same problem of having pain in the left leg, left foot and back pain and he approached OPs No.1 and 2 on 23.03.2015. However, the OPs prescribed certain medicines and advised for physiotherapy. Thereafter, again in the month of June 2015, the complainant faced the same problem and his condition was deteriorated because of pain in the left leg, left foot and back pain. The complainant approached OPs on 06.06.2015 and certain medicines were prescribed and also was advised for physiotherapy. In spite of treatment including medicines, there was no relief from pain and again MRI was conducted on First Appeal No.68 of 2019 4 29.06.2015 from one Shree Devi Talab Mandir Charitable Hospital, Tanda Road, Jalandhar and it was found to be a problem of Disc L5-S1. The complainant approached one Satyam Hospital, Kapurthala Road, Jalandhar for his treatment, where he was examined by Doctor Rajesh Pasricha, who perused the medical history and both MRIs of the complainant and advised re-operation of Disc L5-S1, which was conducted on 01.07.2015 at Satyam Hospital Jalandhar. The medical expenses and operation charges as charged by the said Hospital was approximately Rs.1,30,000/- including room charges.
5. It was further mentioned in the complaint that OPs No.1 and 2 while conducting first surgery were negligent and because of their action/inaction the complainant faced same Disc problem and he had to face the same pain with effect from the Month of December, 2014 to July, 2015. He also suffered physical pain, mental torture, loss of money, loss of work and family members also suffered due to faulty operation conducted by OPs No.1 and 2.
6. The complaint was filed for grant of compensation to the tune of Rs.10,00,000/- on account of physical pain, mental torture, loss of money suffered by the complainant plus litigation expenses as spent by him.
7. The allegations/averments made in the complaint were contested by the OPs before the District Commission who filed joint reply. Certain preliminary objections were raised that the complaint was frivolous, baseless and same was filed just to malign the appellants/OPs First Appeal No.68 of 2019 5 and just to claim the compensation. It was also mentioned in the reply filed by them that there was no negligence on the part of OPs No.1 and 2 and no medical evidence was available that there was any negligence on the part of treating doctor and Hospital. Other allegations as mentioned in the complaint were also disputed/denied.
8. On appraisal of contents of complaint, by considering the reply of OPs and evidence available on the record, the complaint filed by the complainant was partly allowed and the appellants/OPs No.1 and 2 were directed to pay the entire charges of second operation as well as the medical expenses to the tune of Rs.1,30,000/- with interest @12% per annum from the date of filing the complaint till its realization. Both the OPs were also directed to pay compensation for causing physical pain, mental torture, loss of work and loss of money to the tune of Rs.2,00,000/- and also the litigation expenses of Rs.10,000/-. The compliance of the order was to be made within a period of one month from the date of receipt of the copy of the order.
9. Impugned order dated 18.12.2018 passed by the District Commission Jalandhar is subject matter of challenge in the present appeal filed by the appellants/OPs No.1 and 2 by raising a number of arguments.
10. There was a delay of 31 days in filing of the appeal. M.A. No.292/2019 was filed for condonation of delay, which was supported by an affidavit. Delay in filing of the appeal was condoned vide order dated 14.05.2019 and the said M.A. was disposed of accordingly. First Appeal No.68 of 2019 6
11. Learned counsel for the appellants submits that while allowing the complaint filed by the complainant the District Commission has not taken into consideration the ground taken in the written statement and the reasoning recorded therein which is contrary to the evidence available on the record. There was nothing on record that the appellants did not take care and they were negligent in any manner while conducting operation. Learned counsel further submits that the District Commission has failed to appreciate and compare and also to analyze two MRI reports dated 10.12.2014 and 29.06.2015 whereas on perusal of said MRI reports there was different nature of extrusion of nucleus pulposus. The formal report dated 10.12.2014 shows "left lateral recess stenosis" whereas the later report dated 29.06.2015 shows "left paracentral extrusion" alongwith cranial migration on left and filling of left lateral recess. Perusal of the aforesaid conclusions/impressions of the two MRI reports respectively clearly shows that it was a case of recurrence and not residual nucleus pulposus. Learned counsel further submits that the removal of the entire nucleus pulposus is discouraged and avoided in case of young patient as there is always a probability of recurrence of extrusion of the nucleus pulposus after three months of the extraction of previous extruded nucleus pulposus. He further submits that in both cases it was extrusion and only a fragment of nucleus pulposus was detached whatever was lying free. In the first stage at the time of operation on 10.12.2014 appellant No.2 extracted only the extruded fragments rather than removing all the nucleus pulposus. Thereafter, within a period of six months it was a First Appeal No.68 of 2019 7 subsequent decision of the subsequent surgeon to extract the entire nucleus pulposus L5-S1 in order to overcome the propensity/probability of recurrence which was evident in the case of complainant due to the nature of the job and bad posture of the complainant while driving the scooter. Learned counsel also submits that the District Commission has not taken into consideration the certification of Dr. Rajesh Pasricha of Satyam Hospital and Trauma Centre Jalandhar and also of Dr. RPS Chhabra, MS, MCH (AIMMS) Neurosurgery, as both of them had endorsed the line of treatment and the surgery performed by appellant No.2. From the opinion of said doctors there were no shortcomings in the surgery and treatment given by appellant No.2/doctor. Learned counsel submits that District Commission has passed the order by overlooking the reply of appellants/OPs that there was no pain or numinous in the leg but there was only back pain. It is apparent from the OPD record, which was recorded at the instance of the complainant, he was having low back ache with stiffness. At the end, learned counsel for the appellants submits that there was no negligence on the part of the appellants. Learned counsel for the appellants has relied upon judgments i.e. (1)"Martin F Dasuja Vs. Mohammad Ishfaq" Civil Appeal No.3541 of 2002, decided on 17.02.2009 (SC), (2) "Eckersley Vs. Binnie" (1988) 18 Con LR 1, (3)"Hunter Vs. Hanley" 1955 SLT 213, (4) "Jacob Mathew (Dr) Vs. State of Punjab & another" III 2005(CPJ)9(SC), (5) "Malay Kumar Ganguly Vs. Sukumar Mukharjee" (2009) CPJ 17 (6) "Vinod Jain Vs. Santokba Durlabhji Memorial Hospital and another" (2019)12 SCC First Appeal No.68 of 2019 8 229, (7) "Shah Hospital & 2 others Vs. Daljeet Kaur & another"
(RP/1254/2013), (8) "Harinder Kaur & others vs. Shergill Multispeciality Hospital and others (FA/297/2011), (9) "Achutrao Haribhau Khodwa & others Vs. State of Maharashtra & others"
(1196)2 SCC 634, (10) "Smt. Madhavi Mahendrakar Vs. M/s Yashoda Hospital Somajiguda & others" CC No.43/2009 (State Commission Hyderabad), (11) "Subhash M. Nargolkar (Dr.) Vs. Badynanda S. Kalbhor" 2011(III) CPJ-123, (12) "K.S. Bhatia Vs. Jeevan Hospital & others" 2003(IV)CPJ-9 (NC), (13) "Kusum Sharma & others Vs. Batra Hospital & Medical Research Centre & others" 2010(3)SCC-480 and (14) "A. Parameshwar Vs. Asian Institute of Gastroenterology"
2015(1)CPJ-113 in support of his arguments.
12. Learned counsel for respondent No.1/complainant submits that the order passed by the District Commission is well reasoned and is based on proper appreciation of evidence available on the record. He further submits that the appellants/OPs No.1 and 2 had conducted operation in a negligent manner and did not remove the Disc L5-S1 due to which the complainant faced the Disc problem and it was clear cut case of failure/omission on the part of the appellants which amounts to case of patent 'medical negligence' and 'deficiency in service' on their part.
Respondent No.1/complainant has not only suffered physical pain but also suffered mental torture and had to incur a lot of expenses towards treatment. By considering all these factors, the District Commission has rightly awarded the amount of compensation as well as litigation expenses First Appeal No.68 of 2019 9 and no interference is required. Learned counsel has relied upon judgments i.e. (1) "Dr. Sandeep Singh Sandhu Vs. Amarjit Kaur & others" 2018(3)CLT 466 (Punjab), (2) "Yashmeen Kaur Vs. Moga Medicity (Multispecialty Hospital" 2017(3) CLT 204 (Punjab) (3) "Krishan Rao Vs. Nikhil Super Specialty Hospital" 2010(2)(Civil) 929(SC), (4) "Martin F D'souza Vs. Mohd. Ishfaq" 1995(6)SCC 651 in support of his arguments.
13. Heard the arguments of learned counsel for the appellants/OP No.1 & 2, respondent No.1/complainant as well as respondent No.2- Insurance Company.
14. We have also carefully perused the impugned order dated
18.12.2018 passed by the District Commission and other documents available on the record as well as written submission of the parties.
15. Facts regarding conducting of operation of respondent No.1/complainant on 10.12.2014 by the appellants and conducting of second operation with regard to L5-S1 Disc at Satyam Hospital are not disputed. As per case of the complainant in the complaint the operation of respondent No.1/complainant was conducted by the appellants in negligent manner and the same was contrary to norms of medical jurisprudence. As per version of the appellants/OPs No.1 and 2 MRI, Ex.C-3, of respondent No.1/complainant was got done from Super Scanning and Diagnostic Centre Jalandhar wherein it was reflected to be a case of large Rent (tear) involving Annulus Fibrous of L5-S1 Disc with accompanying left paracentral Extrusion of Nucleus Pulposus (Disc) First Appeal No.68 of 2019 10 causing left lateral recess stenosis and resultant compression of left pre- existing SI nerve root alongwith a mild posterior disc bulge at L4-L5. After getting the MRI, Ex.C-3, it was found that there was compression of left nerve roots and due to that there is a pain in the leg, back of the complainant and accordingly, the surgery was proposed by the appellants and the Microlumbar Discectomy, one of the most common method of surgery, was adopted by appellant No.2.
16. Dr. Schwartz (Ortholndy Back Doctor) has defined Microlumbar Discectomy in his medical literature, which is as under:-
Microlumbar Discectomy (MLD) A microlumbar discectomy (MLD) is an out-patient procedure that can be performed using minimally invasive spine surgery. It is a type of surgery in which the lumbar spine is approached through a small incision in the back. The name of the procedure is derived from:
Micro (small) Lumbar (lower back) Discectomy (removal of the protruding portion of the disc) Traditionally, open spine surgery involves cutting or stripping the muscles with good blood supply away from the spine. Now I perform an MLD using minimally invasive spine surgery, a treatment that involves a small incision and muscle dilation. The muscles surrounding the spine are gently separated instead of cut. This minimally invasive approach preserves the surrounding muscle and blood supply and minimizes scarring. Before your surgery date, you will undergo a pre-operative medical evaluation and surgical risk assessment by the hospitalist group where your surgery will take place. You will be instructed to stop taking weight loss supplements, herbals, aspirin, non-steroidal medications and anti- coagulants several days prior to surgery to help reduce blood loss.
Why is a MLD performed?
To remove a portion of the disc that is placing pressure on your spine and/or nerve root.
Radiating leg pain, numbness, tingling or weakness, also called 'sciatica,' can be caused by a bulge or rupture of the small cushion (disc) between your lumbar vertebra in the lower back. If the symptoms do not respond to other non- surgical measures, such as ice/heat, medications, physical therapy or spine injections, then a microlumbar discectomy may be required. It is one of the most First Appeal No.68 of 2019 11 commonly performed spinal procedures. It is 95 percent successful in relieving leg pain from a herniated disc.
During the procedure, you will lie face down on the operating table. X-ray equipment is used in the operating room to visualize the spine. A small incision is made in the skin of your back over the disc to be treated. The muscles surrounding the spine are then dilated with a dilating tube to allow access to the area of herniation. A microscope and light source provide visualization. A laminotomy might be used. This is where a small portion of the bone of the spine (the lamina or "roof" of the spine) is removed to access the disc herniation. The offending portion of the disc is then removed, freeing up the spine and/or nerve root. The incision will then be closed in layers, leaving behind only a small scar or scars.
After Surgery To ensure a successful outcome, it's important to understand the post-operative care after a microlumbar discectomy before you even have the surgery.
17. In the present case, it is not disputed that two surgeries were effected on respondent No.1/complainant. One was conducted by the appellants and the second was conducted from Satyam Hospital Jalandhar. Two MRIs were also conducted. As per stand taken by the appellants in the written statement before the District Commission, the compression of left pre-existing SI nerve root was released and there was no pain in the leg back foot and accordingly the complainant was discharged vide Discharge Summary, Ex.C-1. After discharge from appellant No.1 Hospital i.e. on 13.12.2014, the complainant faced same problem in the month of March 2015 despite taking prescribed medicines and follow up treatment from the appellants. Thereafter in the month of June 2015 the second MRI Dorso-Lumbar Spine was done, which was conducted from Shree Devi Talab Mandir Charitable Hospital Jalandhar. In the MRI report the same problem of L5-S1 Disc was found and Dr. Rajesh Pasricha advised for second operation being the same problem, First Appeal No.68 of 2019 12 which was got done from Satyam Hospital Jalandhar wherein he remained admitted from 01.07.2015 to 09.07.2015.
18. The cases of medical negligence can broadly be categorized as under:
i) The doctor does not give immediate treatment to the patient or when it is required.
ii) The doctor does not take necessary precaution as per the medical assistance of giving the test dose of medicine which are likely to be fatal in some of the cases or may cause allergy.
iii) The Post-operative treatment is not given properly.
iv) The surgical wound is caused at different place than the required.
v) After operation, septicemia or gangrene takes place.
vi) Improper prescription of dugs/medicines is provided. In case of fever and that too without knowing the cause of fever, combination of tables and injections for fever are freely used on trial basis or due to any error.
vii) Mal-practice adopted by the doctors, such as the investigation reports or there are certain infirmity in the reports or investigations prescribed.
19. In some of the cases, there may be allegations that surgery has been done but it was not required or there is a delay in performing the surgery. In some of the cases or instances of death on table or there can be causes of infection which occurred while the patient remained admitted First Appeal No.68 of 2019 13 in the hospital. In some of the cases of emergency, the doctors do not promptly look after the patient or transfuse wrong blood.
20. Moreover, much expectations are there from the medical practitioners to take due care and caution while giving treatment as per the established medical jurisprudence. Meaning thereby, if someone has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art, no question of deficiency would arise.
21. In case of 'medical negligence', the issue for consideration is to examine as to whether the treating doctor was sufficiently qualified to provide treatment and doctor was sufficiently competent and he has also observed due and necessary precaution. It is also necessary to know as to whether timely/necessary steps for treating the patient were taken or not? The Hon'ble Apex Court in the case of Kusum Sharma v. Batra Hospital reported in (2010) 3 SCC 480 has held in Para-94 as under:
"94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human First Appeal No.68 of 2019 14 affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely First Appeal No.68 of 2019 15 because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. 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 patients have to be paramount for the medical professionals."
22. In some of the cases, the allegations of medical negligence are defended by taking a plea of bonafide mistake which under certain circumstances may be excusable but sometimes the mistake may tantamount to negligence, which cannot be excused/pardoned.
23. For determining the case of 'medical negligence' in a particular case, it is to be seen as to whether the conduct, action or omission of a doctor can result into a case of 'medical negligence' or First Appeal No.68 of 2019 16 not. It is also to be seen as to whether the medical practitioner, who is having various types of duties towards his/her patient, has acted with reasonable degree of skill and knowledge or he/she has exercised a reasonable degree of care. However, the skill of a medical practitioner differs from doctor to doctor. There may be more than one course of treatment, which may be advisable for treating a patient. The Courts are quite conscious when allegations of negligence are alleged in the case. It is to be seen/judged as to whether the doctor has performed his/her duties to the best of his/her abilities with all due care and caution. Medical opinion differs with regard to course of action to be taken by a doctor treating a patient but in case the doctor acts in a manner which is acceptable to the medical profession, the Court finds that the doctor has taken proper and due care. In case, still patient does not survive or suffers with serious ailment, it would be difficult to hold that the doctor has been guilty of medical negligence.
24. Hon'ble Supreme Court of India has observed in the case of Jacob Mathew v. State of Punjab Appeal (Crl.) No.144-145 of 2004 decided on 05.08.2005 as under:
"A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation First Appeal No.68 of 2019 17 and a quivering physician cannot administer the end-dose of medicine to his patient.
Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. ...... A highly skilled professional may be possessed of better qualities, but that cannot First Appeal No.68 of 2019 18 be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
25. The Hon'ble Supreme Court was pleased to approve the test as laid down in Bolam v. Friern Hospital Management Committee. The relevant principles culled out from the case of Jacob Mathew (supra) are reproduced as under:
"b. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.
c. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence."
26. In view of the facts as mentioned above and the observations made by the Courts in different important case Laws, now it is to be seen by considering the facts and circumstances of the present case as to whether the treatment given by the concerned doctor to the patient was as First Appeal No.68 of 2019 19 per medical norms and also that the doctor attending the patient was qualified to impart treatment and prompt in providing the treatment.
27. The issue for determination by this Commission is as to whether the appellants/OPs were negligent while conducting first surgery due to which respondent No.1/complainant had to suffer the pain and financial loss resulted into second surgery for the same problem.
28. For this fact it is necessary to see as to whether the second surgery could have been avoided in case it could have been done at the time of first surgery. As per stand of appellants/OPs it was done by considering the age of the patient and nature of his duties. It is also necessary to analyze as to whether it was a case of 'medical negligence' or first surgery was conducted contrary to medical literature and well settled norms for conducting surgery for the same purpose.
29. As per the stand of the appellants Microlumbar Discectomy was correctly performed on the complainant as he had recurrence of symptoms after 6 months of surgery. MRI was done on 29.06.2015 in Shree Devi Talab Mandir Hospital Jalandhar, which showed a new extruded disc fragment. The recurrence of symptoms was caused by another extruded disc fragment after six months not due to any shortcomings in the first surgery and treatment thereof was done at Joshi Hospital.
30. During the argument a question was put to learned counsel for respondent No.1/complainant that after the 2nd surgery also the complainant faced the same problem i.e. recurrence of same symptoms. First Appeal No.68 of 2019 20 He replied in negative. It is pertinent to mention that as per above medical literature Microlumbar Discectomy is performed to remove a portion of the disc which was placing pressure on spine and/or nerve root.
31. Admittedly two MRI reports dated 10.12.2014 and 29.06.2015 were available before the District Commission as produced by the complainant. On perusal of said two MRI reports there are different nature of extrusion of nucleus pulposus. As per 1st report dated 10.12.2014 it reflects "left lateral recess stenosis" whereas the subsequent report dated 29.06.2015 has left paracentral extrusion alongwith cranial migration on left and filling of left lateral recess". On perusal of conclusions of both said two MRI reports, it is clearly reflected that it was a case of recurrence and not residual nucleus pulposus. As per medical requirement, the removal of entire nucleus pulposus is normally discouraged in case of young patient by considering this fact it was not thought proper/possible or practical in the 1st surgery. No doubt that in both situations extrusion i.e. fragment of nucleus pulposus was detected and it was found lying free but only a fragment was removed. It was done due to minimum risk. The line of treatment was the conscious decision taken by the treating doctor/surgeon, Dr. Rajesh Pasricha of Satyam Hospital and Trauma Centre and also Dr. RPS Chhabra, MS, MCH (AIMMS) Neurosurgery and both of them endorsed the line of treatment and the surgery was performed by the appellant No.2/OP No.2. Further it was endorsed that the recurrence of symptoms caused by First Appeal No.68 of 2019 21 another/different extruded disc fragment after six months was not due to any shortcoming or 1st surgery or the treatment given in the appellant No.1 Hospital.
32. In view of settled proposition of Law as has been held in a number of judgments that negligence cannot be attributed to a doctor so long as the Doctor performs his/her duties with reasonable skill and competence. Merely because of reasons a Doctor has chosen one course of action in preference to the other available, he/she cannot be held liable if the course of action chosen by him/her was acceptable to the medical profession. It is to be ensured that the patient has not unnecessarily been harassed or wrong treatment has been given without adopting all precautionary measures. On perusal of order passed by the District Commission, nowhere it has been mentioned in the findings that the attending doctor had not taken full care or any complication occurred due to fault on the part of the concerned doctor. Admittedly, in the first attempt, the extruded fragment was removed but entire nucleus pulposus was not removed. The decision was taken by the Surgeon to extract the entire nucleus pulposus L5-S1 to overcome the probability of recurrence by considering the nature of job and bad posture of the respondent/complainant while driving the scooter. The relevant medical literature in the present context is reproduced as under:-
"Spinal Surgery by Keith H. Bridwell & Ronald L. DeWald- Third Edition Vol.I Chapter 41 (Surgical Treatment of Lumbar Disc Herniation) First Appeal No.68 of 2019 22 If the fragment is extruded and has migrated from the disc space, that risk is minimal as the fragment has been ejected from the disc space and is lying free in the spinal canal. In this situation, it is not necessary to surgically expose and enter the disc space for debridement of possible retained fragments. It is merely necessary to enter the spinal canal, identify the extruded fragment, and extract it."
In the findings recorded by the District Commission, the operation notes of the appellants/OPs wherein the entire procedure was mentioned has been overlooked. While taking consent vide consent Form dated 10.12.2014, the complication with respect to recurrent disc prolapsed had been stated to be a known complication of the procedure but the same has not been taken into consideration by the District Commission. Both the doctors i.e. surgeon Dr. Rajesh Pasricha of Satyam Hospital and also Dr. RPS Chhabra, MS MCH (AIMMS) Neurosurgery have endorsed line of treatment of the surgery performed by appellant No.2. The copy of certificate date 13.01.2017 and certificate are also annexed with the appeal as Annexure A-6 (colly).
33. From the facts as mentioned above we are of the view that the Doctor cannot be held liable simply on the ground that certain things have gone wrong but there is no error of judgment. Nothing has been pointed out that the standard of reasonable competence was not there. The only requirement for making out a case of medical negligence is to First Appeal No.68 of 2019 23 see as to whether the concerned doctor has adopted reasonable degree of skill and knowledge and has exercised a reasonable degree of care while treating the patient. A Doctor cannot be held liable for negligence only on the ground that greater skill and knowledge could have been prescribed or the patient was operated in a different way. In case the Doctor has taken proper and reasonable care and has not deviated from the normal practice he/she cannot be held liable for negligence. To establish a liability on such ground it is required to be proved that a usual and normal practice has not been adopted while treating the patient. In the present case nothing has been mentioned or pointed out that the treating Doctor was not competent or he was not having requisite qualifications/experience or he did not adopt usual method of treatment. It has also not been proved on record that during the course of surgery there was any act of negligence.
34. Appellant No.2/OP No.2 is stated to be a Super Specialist in Neuro Surgery with DNB which is a Super Specialist qualification and is having experience of surgery of more than 11 years. The respondent/complainant was not having any pain or symptoms for further complication for months together after the 1st surgery conducted by appellant No.2/OP No.2. The complainant was also not having any numbness in the leg or back for a period of 3 months after surgery.
35. For the reasons recorded above and in view of ratio of judgments in a number of cases relating to case of medical negligence it First Appeal No.68 of 2019 24 has been proved on record that the appellants had taken all the precautions while conducting surgery and proper method was adopted which is clear from expert opinion. In absence of any such evidence from the side of the respondent/complainant to prove that the treating doctor was not qualified for doing surgery or was not having requisite experience nothing has been said in the findings recorded by the District Commission.
36. In view of parameters laid down for holding a Doctor for medical negligence nothing has been brought on record and still findings have been recorded by the District Commission without having any evidence on record. Accordingly, it can be said that findings recorded by the District Commission are not based on proper appreciation of evidence.
37. Accordingly we are of the view that there is merit in the contention raised by learned counsel for the appellants and as such the appeal is allowed and the impugned order dated 18.12.2018 passed by the District Commission is hereby set aside. Resultantly, the complaint is dismissed.
38. The appellants had deposited an amount of Rs.25,000/- at the time of filing of the appeal with this Commission and further deposited an amount of Rs.1,00,000/- in compliance with order of this Commission. Said amounts, alongwith interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The appellants/OPs may approach the District Commission for the release of First Appeal No.68 of 2019 25 the same and the District Commission may pass appropriate order in this regard in accordance with law.
39. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases and non-sitting of this Commission due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER May 30, 2022.
(MM)