National Consumer Disputes Redressal
Dr. Harkanwaljit Singh Saini vs Gurbax Singh And The National Insurance ... on 20 November, 2002
JUDGMENT
D.P. Wadhwa, J. (President)
1. It is the medical doctor who is the petitioner before us. In the District Forum complaint was filed against him alleging deficiency in service in performance of his medical duties towards Gurbax Singh, complainant-respondent No. 1 herein. While the District Forum dismissed the complaint it was allowed by the State Commission on appeal filed by the complainant. It was held that the petitioner was deficient in service and a sum of Rs. 30,000/- was awarded to the complainant as compensation for mental agony and harassment. Aggrieved, Dr. Harkanwaljit Singh Saini has come to this Commission.
2. Gurbax Singh, the complainant, approach Dr. Saini for certain medical ailment being pain in the abdomen. It was suggested to him that an operation was necessary to relieve him of his pain. He was admitted in the Hospital of Dr. Saini for the period from 25.6.98 to 4.7.98. Dr. Saini had performed operation to remove stone from kidney and charged Rs. 30,000/- as his fees. Complainant alleged that even after the operation and discharge from the Hospital he still felt acute pain as it appeared to him that his stone problem was already there. Complainant contacted Dr. Saini who advised him for another X-ray. This X-ray report showed a small opacity in the right renal region. Dr. Saini after examining the X-ray advised the complainant to have himself checked up at PGI Chandigarh. Complainant did not go to PGI Chandigarh and rather contacted some other doctor who told him that he had wasted a lot of time and had not been given proper treatment. Complainant was advised second operation.
3. Stand of doctor Saini was that as per history of the complainant given to him, complainant had already been operated upon for removal of stone in the right kidney in a hospital at Dasuya and that there was reoccurrence of stone in the same kidney. Before the operation he after scanning X-ray and reports which the complainant produced there was calculus (also called stone) in the right renal region and the coloured X-ray report indicated that both the kidneys functioning normally and that the calculus was lying in the lower calyx (a cup like organ) of the right kidney. Operation was performed on 26.6.98 and kidney stone measuring 2 x 1 cms. was removed which was handed over to the attendants of the complainant. Complainant was discharged on 4.7.98 when he was completely cured and was advised to visit the hospital for follow up treatment after one week. On 14.7.98 it was found that complainant had no problem. He was prescribed from tonic and B-complex tonic. According to Dr. Saini complainant had history of reoccurrence of stone, therefore, by way of abundant caution he was advised X-ray which indicated a small opacity in the right renal region. According to Dr. Saini such like opaque shadow becomes visible for many causes other than the calculus which was only doubted. Dr. Saini, therefore, advised the complainant to go to PGI for "metabolic analysis". Dir. Saini denied that no stone was removed by him. Admittedly, complainant, did not go to PGI Chandigarh.
4. Complainant did not produce any expert evidence. It is not a case where principles of res ipsa loquitur apply. State Commission has relied too much on the absence of bed ticket and the surgical notes taken while performing the operation on the patient. An adverse presumption appears to have been drawn against Dr. Saini. There is nothing on the record to show if any attempt was made to call for those documents and also there is no indication that Dr. Saini intentionally withheld those documents. But then it was for the complainant firstly to show that there was any negligence in performance of the operation by Dr. Saini. It has been pointed out that the complainant did not produce first X-ray on the examination of which operation was performed by Dr. Saini. If Dr. Saini had to conceal anything he would not have referred the complainant to PGI Chandigarh for metabolic analysis. Complainant had not produced the doctor who had advised him second operation and how and when it was performed and with what result. A bald statement of the complainant that he visited the expert doctor according to whose opinion proper treatment had not been given to him by Dr. Saini does not improve the matter for the complainant.
5. As to the examination of the evidence in the case of medical negligence we had occasion to state in the case of Manish Sood v. Dr. J.S. Arora (Original Petition No. 262/92, decided on 1st August, 2001), as under:
"Before we discuss evidence and reach our conclusions it would be appropriate to refer to certain basic principles in the case of medical negligence. There is a duty of care which doctor owes to his patient. When there is breach of that duty harm follows as a result. Primary consideration is the diagnosis. First conservative treatment is advised and when it appears that conservative treatment does not bring desired results doctor advises surgical treatment, if that would cure the patient. In a civil case burden of proving that the defendant was negligent, rest with the plaintiff. It is not for the defendant to show that he was not negligent. The standard of proof required is the normal civil standard, 'on take balance of probabilities' which means more likely than not-not the criminal standard of "beyond reasonable doubt". But the cases of professional negligence create particular problems and, in practice it has to be higher standard of proof than for ordinary civil cases of negligence. In a given case plaintiff may be able to rely on an inference of negligence where the circumstances are such that the injury of which he complains does not normally happen in the absence of negligence. This is base don the principle of res ipsa loquitur (the thing speak of itself). This requires defendant to provide some reasonable explanation of all the incidents which could have occurred without negligence by him."
6. The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless these is something contrary on the record by way of expert opinion or there is any medical treatise on which reliance could be based. In the present case Dr. Saini said that the X-ray report indicated a small opacity and that such like opaque shadow become visible for many other causes than the calculus. It could not be assumed that still stone existed in the right kidney which had not been operated upon by Dr. Saini.
7. In the circumstances, we do not think any case of negligence has been made out by the complainant. This petition is, therefore, allowed. Order of the State Commission is set aside and that of the District Forum is restored and the complaint is dismissed. Petitioner is entitled to cost which we assess at Rs. 2,000/-.