State Consumer Disputes Redressal Commission
Dr.D.Ramu,Hyderabad-64 vs Venkata Malla Reddy,Karimnagar ... on 27 April, 2010
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD F.A.No.1672/2007 against C.D.No.244/1997, Dist. Forum, KARIMNAGAR. Between: Dr.D.Ramu, Occ:Medical Practitioner, R/o.Plot No.3, Balaji Nagar, Adikmet, Hyderabad-64. Appellant/ Opp.party And Venkata Malla Reddy, S/o.Venkat Reddy, Aged about 42 years, R/o.Surface Mazdoor RGCC-II, ST2-0988, Cement Colony, Kamanpoor Mandal, Begumpet Gram Panchayat, Karimnagar District . Respondent/ ` Complainant Counsel for the Appellant : M/s. M.V.S.Suresh Kumar Counsel for the Respondent : M/s. M.Hari Babu. CORAM:HONBLE JUSTICE SRI D.APPA RAO, PRESIDENT, AND SMT. M.SHREESHA, HONBLE MEMBER
TUESDAY, THE TWENTY SEVENTH DAY OF APRIL, TWO THOUSAND TEN.
Oral Order :(Per Smt. M.Shreesha, Honble Member) **** The brief facts as set out in the complaint are that the complainant approached the opposite party on 8.1.1995 complaining pain in the back and the opposite party advised for admission on 20.1.1995. The complainant was advised to undergo tests on 21.1.1995 at Surya Pathological Laboratory, Godavarikhani and Venkateshwara Diagnostic Centre, Godavarikhani where he spent Rs.5,000/- and submitted a report to the opposite party who stated that he was suffering from Spondylolisthesis in L5 and S1 and loose posterior each of L5 and performed an operation on 21.1.1995 and asked the complainant to come on 28.1.1995, 5.2.1995, 18.2.1995, 25.2.1995 and 12.3.1995 and prescribed some medicines but the pain did not reduce. Once again on 25.3.1995 the complainant was asked to get C.T. scan done and go to NIMS. The complainant went to Kamineni Hospital on 5.5.1995 and got the C.T. scan done and paid Rs.5000/- and the report showed the evidence of Spondylolisthesis at L5-S1 and mild disc bulge pressing the spinal cord and obliterating the left lateral recers and a similar bulge is also evident at L5S1 and evidence of facet joint hypertrophy also ossification of ligamentum flavum. The complainant was treated at Kamineni Hospital as an out patient but the complainant once again suffered of pain and was reviewed by the Medical Board on 29.6.1995 and was found to be unfit to work as General Masdoor in underground. The complainant approached the opposite party once again and opposite party performed graft operation on 15.7.1995 which was necessitated only because of the wrong operation conducted by him on 21.1.1995. He was under the care of opposite party till 20.8.1995 but the pain did not subside and he once again went to Kamineni Hospital till 11.9.1995. He was referred by Dr. P.R.K.Prasad, Hyderabad to Medwin Hospital, Hyderabad where he took ENMG on `19.10.95 on payment of Rs.1000/- and the said report showed right lateral popliteal (L5) and posterior tibial nerves (S1) show marginally reduced conduction velocities, grossly reduced amplitude of C-MAP and prolonged distal and f-wave latencies. Meanwhile his services were terminated and an office memo dt. 30.7.95 was served to the complainant. The complainant submits that it was only because of negligent operation of the opposite party on 21.1.95, he was got operated again on 15.7.95 and the complainant being poor could not afford third surgery and also could not get any relief and los this job. He was provided an alternative employment on humanitarian grounds and he was appointed as Surface General Mazdoor. He was drawing Rs.4,300/- per month and today he is being paid Rs.2,630/-
without any overtime benefit He also lost the future promotional benefits and spent Rs.27,000/-and Rs.20,000/-
towards the tests and medicines and also suffered severe mental agony and has to spend atleast Rs.50,000/- for further treatment. Hence the complaint seeking direction to the opposite party to pay Rs.4 ,97,100/- towards various heads with other reliefs.
Opposite party filed counter denying the allegations made in the complaint and stating that on 21.1 95 he performed surgery on the complainant at L4 L5 level and excised posterior arch of L5 which was loose , he inspected the dural tube which was found normal and he did posterior final fusion using Iliac cortical and concillous bone graft which is the procedure as described by Bose Worth. On 25.3.95 after following the patient regularly for 3 months as the patient was persistently complaining of pain and as there was no obvious cause found to explain the pain he advised the complainant to go to Hyderabad to get C.T. scan of Lambosacral spine. Opposite party submits that as per the reports he noticed that there is instability of spine and he decided to continue with conservative management during which period one of the bone graft strucks got displaced and hence it was removed on 15.7.1995 which he absolutely do not have any bearing on the prognosis of the patient as there is sufficient concellous bone graft still left inside to be consolidated and as the pain was still persisting he advised him to go to Hyderabad again to take second opinion of Neuro Surgeon whether L4-L5 Disc bulge is the cause for pain or not and whether it required surgery and if so which technique is to be adopted. The allegation that the surgery was unnecessary was not correct as the pain was not subsiding . They advised the C.T.Scan which showed another lesion on mild disk bulge at L4-L5. They did not perform surgery for Disc Bulge at L4-L5 level because they are not certain whether it is the cause for the pain or not due to the lack of co-relation between the C.T.Scan report and patients symptoms and later they took second opinion of Neuro Surgeon who also could not come to a conclusion until after ENMG was done. The removal of bone graft pieces which is mentioned as second operation in the petition was a minor surgery and is of no significance regarding the prognosis of the patient. The first surgery was essentially performed to remove the loose posterior arch which pressed on the nerve root and causes pain and this was done perfectly as can be verified from the C.T.Scan. Opposite party submits that every person who works in underground coal mines who is having spinal disc bulge or spondylolesthesis or both is declared unfit to work in underground mines whether operated or not. Opposite party submits that there is no negligence on his part in diagnosing the disease or in performing the surgery or in post operative follow up or in advising further investigations .
Based on the evidence adduced i.e. Exs.A1 to A71 and Ex.B1 and Ex.C1 the District Forum allowed the complaint directing the opposite party to pay compensation of Rs.2 lakhs with 9% p.a. from the date of filing of the petition and costs of Rs.1000/- within one month.
Aggrieved by the said order, the opposite party preferred this appeal.
The learned counsel for the appellant contended that there is no negligence on behalf of the opposite party and if there had been mistake or error it should have shown in C.T.Scan report. After the first operation the complainant was examined by various doctors at Hyderabad and also the Medical Board, NIMS and nobody suggested that there was improper diagnosis. He further contended that there was no expert examined and Ex.C1 medical report is in favour of appellant/opposite party and sought for dismissal of the complaint with costs.
It is the case of the complainant that he approached the opposite on 8.1.95 for back pain and was advised to undergo some tests for which he spent Rs.5000/- and he was advised to be admitted in the hospital on 20.1.1995 which is evidence under Ex.A1. Ex.A2 is the admission card dt.21.1.95 to 25.3.95 which evidences the treatment given by the opposite party to the patient till 25.3.95. Ex.A3 to A7 are the prescriptions given by the opposite party from 21.1.95 25.1.95 and the relevant cash bills. The complainant submits that he was diagnosed to be suffering from Spondylolisthesis in L5 and S1 and loose posterior each of L5 and performed an operation on 21.1.1995 thereafter as per the advise of opposite party he visited the hospital on five occasions from 21.1.95 till 12.3.95. He again approached the opposite party on 25.3.95 and he was advised to get the C.T. Scan done. When the complainant approached Kamineni Hospital on 5.5.95 as per Ex.A8 and got the C.T. scan done by paying Rs.5000/- it was diagnosed that the complainant was suffering with Spondylolisthesis at L5-S1 and mild disc bulge pressing the spinal cord and obliterating the left lateral recers and similar bulge is also evident at L5 S1 and evidence of facet joint hypertrophy also ossification of ligamentum flavum. As per Ex.A9 the impression PID L4-5 and also L5-S1 for clinical correlation . He was treated as out patient at Kamineni Hospital till 6.5.95 but did not get any relief . On the basis of the treatment and operation conducted on the patient and verifying the C.T. scan dt.5.5.95 declared as unfit as General Masdoor in underground as per Ex.A13. As the pain did not subside, the complainant approached the opposite party and after examining him on 15.7.1995, opposite party diagnosed it as special fusiongraft noncemon and he performed graft operation. The complainant submits that this operation was necessitated only because of the negligent operation performed on 21.1.1995. Once again the complainant underwent treatment in Kamineni Hospital till 11.9.1995 but the pain did not subside and he consulted Dr.P.R.K.Prasad at Hyderabad who referred him to Medwin Hospital, Hyderabad and he underwent ENMG test under Ex.A23. This test report states that Right lateral popliteal (L5) and posterior tibial nerves (S1) show marginally reduced conduction velocities , grossly reduced amplitude of C-MAP and prolonged distal and f-Wave Latencies at right side consistent with Roof/ pluxas involvent and he was advised an oxonopolly of L5-S1 and L5S1 . The doctor at Kamineni Hospital, Hyderabad perused ENMG Report on 20.10.95 and found right side L5-S1 Rediculopathy and Disk Prolapse and advised the complainant MRI of LSS pain and surgery. The complainant further submits that he lost his job and he was given an alternative employment as Surface General Mazdoor because of which he lost Rs.1670/- per month towards the salary and allowances of Rs.1000/- per month and sought for compensation of Rs.4,97,100/- .
It is the case of the appellant/opposite party that on 21.1.95 he diagnosed the patient to be suffering from Spondylolisthesis at L5-S1 and performed surgery on him on the same day at L4 L5 level and excised posterior arch of L5 was removed and posterior fusion was done. The patient was discharged on 28.1.95 and Ex.B1 is the case sheet of the patient and he was reviewed on 28.2.95, 12.3.95 and 18.3.95 and 25.3.95 and he advised the patient to go to NIMS for further investigation and the patient came to him again on 7.5.95 and he found small pieces of grafted bone pressing below the skin which was removed by another operation. Thereafter he was referred to Neuro Surgeon Dr.Prasad whom the complainant approached on 19.10.95 but thereafter he did not visit the opposite party again. As per Ex.A9 C.T.Scan report there is mild disk disease but no paralysis. Ex.A26 is the prescription of Kamineni Hospital which shows that there is no sensory or molor loss that there is no disability or paralysis and Ex.A51 dt.24.7.2001 shows that there is relief after medicine given to the patient for disk disease. On 1.3.2002 the complainant was examined by Medical Board of NIMS and as per Ex.C1 it is stated as follows:
The Medical Board opined after detailed examination and reviewing the EMNG and X-ray reports that the patient has Low back ache, No evidence of Radiculopathy and No significant neural compressive lesion.
We find force in the contention of the learned counsel for the appellant that the Medical Board did not anywhere state that there is any negligence on behalf of the opposite party. Merely because the complainant was operated for the first time on 21.1.95 and the pain did not subside which necessitated the second operation on 7.5.95 it cannot be construed in the absence of any expert evidence that there is medical negligence on behalf of the opposite party. It is also apparent in the record that after the second operation the complainant did not go back to the opposite party and merely because the doctor treated conservatively it cannot be construed as negligence. The complainant failed to establish as to what is the exact line of medical treatment that has to be followed by the appellant doctor and what duty of care he is supposed to take, but did not undertake and also did not file any expert opinion to establish his case. We rely on the judgement of Apex Court in MARTIN F.DSOUZA vs. MOHD. ISHFAQ reported in 2009 SCC-3-1 wherein it was held as follows:
In Halsburys Laws of England the degree of skill and care required by a medical practitioner is stated as follows:
The practitioner must bring to his task 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 , and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice ; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. As Lord Clyde stated in Hunter v. Hanley(1955 SLT 213):
in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.
From the afore mentioned judgement it is clear that unless that there is an expert opinion to prove that the line of treatment adopted by the doctor is not as per the standards of normal medical parlance it cannot be construed as negligence by any standards. Ex.C1 which is the medical report given by Medical Board of NIMS does not state anywhere that the appellant had been negligent. Therefore we allow this appeal and set aside the order of the District Forum In the result this appeal is allowed and the order of the District Forum is set aside and consequently complaint is dismissed . No costs.
Sd./PRESIDENT Sd./MEMBER Dt.27.4.2010 Pm*