State Consumer Disputes Redressal Commission
Satish Garg vs Sandeep Gupta on 16 April, 2007
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 16-04-2007 Complaint Case No. C100/1999 Dr. Satish Garg, Complainant S/o Shri Purshottam Saran Garg, Through R/o D-778, Saraswati Vihar, Mr. A.P. Aggarwal, Pitampura, Delhi-110034. Advocate. Versus 1. Dr. Sandeep Gupta, Opposite Party No.1 R/o C-526, Saraswati Vihar, Through Delhi-110034. Mr. Sanjiv Kumar, Advocate. 2. R.B. Seth Jassa Ram & Bros. Opposite Party No.2 Charitable Hospital Trust, W.E.A. Karol Bagh, Delhi-110005. 3. New India Assurance Co. Ltd. Opposite Party No.3 19, Community Centre, Through New Friends Colony, Mr. Manoj Kumar, New Delhi. Advocate. CORAM : Justice J.D. Kapoor- President Mr. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) For having conducted the operation on the wrong side of the anus the complainant has filed this complaint alleging medical negligence on the part of the OPs and has claimed compensation of Rs. 15,00,000/- (Fifteen Lakhs)
2. The case of the complainant in nutshell is that he is 65 years of age and a diabetic for the last 20-25 years and has also been suffering from kidney ailment, ashthma and skin diseases. He was also having an enlargement of Prostate Glands. For the last about 10-15 years due to diabetics there were diabetic ulcer around his rectum.
3. That on 1.9.97 there appeared wound near the rectum that left a hole and the puss used to come out of that hole. The complainant on 9.9.97 consulted Dr. R.C. Kacker at Sanjeevani Nursing Home, Kamla Nagar and he diagonised the same as fistula anus and prescribed Antibiotics and also suggested minor surgery. Thereafter on the advise of some friends, the complainant consulted the OP No. 1 and also showed him the diagnoses and prescription of the earlier consultancy. The OP no.
1 thoroughly examined the complainant and suggested that the surgery was required.
4. On the assurance and advice of the OP No. 1, the complainant agree to get operated upon in the hospital run by the OP no. 2.
In the hospital Dr. Rajeev Jain took X-rays and also made local inspection and the complainant was admitted. On 13.10.97 the OP No. 1 conducted the surgery. Instead of doing surgery of the portion which was affected and was visible in the Fistula gram, the OP No. 1 conducted the surgery of another potion i.e. instead of left the surgery was conducted of the right portion and that too under the general anesthesia instead of local anesthesia.
5. At the time of dressing it came to the knowledge of the complainant that OP No. 1 carried out surgery in between the rectum and the penis of around 6 inches length and 4 inches in depth negligently which was not required to be done. On 15.10.97 he visited the complainant and asked why the operation was conducted of a place other than which was required to be done. The OP No. 1 became very much disturbed and admitted orally his negligence and tried to pacify saying that the portion was also diseased portion and stated that he would carry out the operation of the portion which was required to be operated and he would discharge the complainant on 16.10.97 and as such he again carried out operation on 1.10.97 at 6.50 PM under the local anesthesia and minor surgery was conducted.
6. Thus due to negligent act of the OP no. 1 which was done in the hospital run by OP No. 2 for which the OP No. 2 was paid and OP No. 1 was also paid, the complainant suffered a lot. The complainant had to get the bandage and dressing for continuously for six months and suffered mental agony and physical pain. He did not get any pay for the extended leave and had to incur expenses by driving car, for dressing for the period of six months and in this manner, he had to spend about Rs. 2,50,000/- (Rupees two lakhs fifty thousand) and during the period of six months he had to be confined to the house and was not able to even attend to his work.
7. On the other hand OP 1 & 2 have, in their defence, have come up with the following version:-
(i) That the complainant was suffering from multiple fistulas which were badly infected. The complainant appears to have been consulting number of doctors and almost all the doctors had advised the complainant for the surgery. As per advice of the OP, he was admitted in the OP No. 2-Hospital on 12.10.1997. He was thoroughly examined by Dr. Rajiv Jain Senior Resident (Surgery) and Dr. R.K. Singhal , Physician who had opined that the surgery was necessary for the complainant. The case history of the complainant prepared at the time of admission clearly showed that he was suffering from Fistula with multiple opening. The diagram showing the places of openings of the Fistula was also made at the time of initial checking and admission.
(ii) That the complainant was well aware of the openings of the Fistula around his rectum and he was even told about the possibility of detection of further openings at the time of surgery or even thereafter. He had even seen the Diagram prepared on the case history. He was operated upon regional anesthesia (Spinal Anesthesia) and was in sense before, during and after surgery. Even during operation the OP No.1 had explained the extent of surgery done by him on the complaint.
(iii) That the complainant was suffering from diabetic and to meager his urine out and put surroundings to the place of operation, it was medically advisable that catheter be used in such sort of cases.
(iv) That it is highly improbable and unbelievable that a skilled surgeon would allow his patient to touch the unhealed wound with his naked hands because there is every likelihood of the wound being infected if such a practice is allowed. OP No. 1 had in fact not conducted any dressing on 14.10.1997, rather the dressing was done on 15.10.1997 and at the time of dressing it was found that there was another infected opening which too required to be operated upon. With the knowledge and consent of the complainant, the said opening was operated upon and the wounds were dressed in hygienic conditions after taking precautions of the patient not contracting any infection.
(v) That no episode as complained for in the complaint ever happened with the complainant.
Inadvertently the date of discharge has been shown as 15.10.97 as it is clearly mentioned in the Bills which were raised by the OP No. 2
8. Aforesaid conspectus of rival contentions and claims of the parties shows that the only allegation of medical negligence against OPs levelled by the complainant is that when the matter came to light on the next day the OP had committed a wrong operation and again on third day left glutal was operated, this resulted in taking three months to heal the wound which was wrongly created.
9. There is no doubt that complainant consulted as many as three doctors and every one of them advised surgery but instead of performing operation on left glutal the OP was alleged to have operated upon right glutal. However, OPs failed to produce any document or prescription or advice given to the complainant by the aforesaid doctors. It appears that may be due to some error the OP might have performed the surgery on the right glutal which too was infected though very little whereas the actual surgery was to be performed at the left glutal. The moment the OP No.1 detected this mistake, he performed surgery on left glutal region.
10. The age-old test to determine medical negligence is the Bolam Test enunciated by judgment reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
11. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
12. In our view the negligence or deficiency on the part of the OP causing surgery of the right glutal region created problem for the complainant who was a diabetic patient as he suffers for three long months for getting the would healed up.
13. In the given facts and circumstances of the case, we deem that lumpsum compensation of Rs. 50,000/- would meet the ends of justice. The first charge of recovery of amount is OP No.3-Insurance Company as the OP No.1 had got himself insured with OP No.3 against medical perils.
14. Payment shall be made within one month from the date of receipt of this order.
15. Complaint is disposed of in aforesaid terms.
16. F.D.R./Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
17. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
18. Announced on the 16th April, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj