State Consumer Disputes Redressal Commission
Hukmi Chand vs Dr.N.R.Bhandari & Ors. on 20 May, 2009
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, RAJASTHAN, JAIPUR APPEAL NO: 1451/2005 Hukmi Chand r/o Jation ka purana Bas, Bhem Nagar-A, Barmer. Complainant appellant Vs. 1. Dr.N.R.Bhandari, Purana Petrol Pump Station Road, Barmer. 2. Shri Chagan Lalji Bothera Owner Manak Hospital, Barmer r/o Opp.Madh Swarankar Mandir, Kalyan Pura, Barmer. Opposite parties-respondents Date of judgment 20.5.09 Before: Mr.Justice Sunil Kumar Garg-President Mr.Sikandar Punjabi- Member Mr.Virendra Dave counsel for the appellant Mr. Pritam Bijlani counsel for respondent no.1 None present for respondent no.2 2 JUDGMENT
BY THE STATE COMMISSION ( PER HON. MR.JUSTICE SUNIL KUMAR GARG, PRESIDENT ) This appeal has been filed by the complainant appellant against order dated 19.7.05 passed by the District Forum, Barmer in complaint no. 152/04 by which the complaint of the complainant appellant of medical negligence against the respondents was dismissed.
2. It arises in the following circumstances-
That the complainant appellant had filed a complaint before the District Forum, Barmer on 29.7.04 inter alia stating that on 21.1.04 he felt pain on his face ( right jaw ) and thereafter he consulted Dr. N.R.Bhandari, respondent no.1 after paying the charges and the doctor had given him medicines for five days. It was further stated in the complaint that since he did not feel any relief, he again consulted respondent no.1 on 7.2.04 and respondent no.1 had prescribed medicines for ten days and further advised for x-ray of his face and after seeing the x-ray report, the respondent no.1 had advised him for operation. It was further stated in the complaint that on 10.3.04 the complainant went to the hospital of respondent no.2 and a sum of Rs.5000/- were paid as charges for operation and a minor operation was done on 10.3.04 by respondent no.1 under local anaesthesia and as per the case of the complainant while performing the operation, an important vein of the right jaw was wrongly cut down and thus that had resulted a hole in the jaw. It was further stated in the 3 complaint that since because of that hole when the complainant used to take food or liquid, the said liquid and food come out from his mouth through that hole and thus while performing the operation on 10.3.04 the respondent no.1 had not taken proper care which was expected from him and thus there was medical negligence on the part of respondent no.1. It was further stated in the complaint that since the complainant did not feel any relief after the operation done on 10.3.04, the complainant appellant took the treatment on 23.3.04 from Dr. Kapoor Chaudhary who was a surgeon in the Mathura Das Mathur Hospital, Jodhpur. It was further stated in the complaint that Dr. Kapoor Chaudhary told him that the surgery which was done at Barmer by respondent no.1 on 10.3.04 was not a good surgery as carelessness was taken and because of that a hole was there as some vein was cut while performing the operation. It was further stated in the complaint that thereafter he was got admitted on 29.3.04 in Mathuradas Mathur Hospital, Jodhpur in surgical unit of Dr.Kapoor Chaudhary and was discharged on 30.4.04 and operation was done on 5.4.04 and diagnosis which was made by Dr. Chaudhary was " Parotid duct Fistula " . Thus, there was medical negligence in conducting the operation on 10.3.04 by respondent no.1, therefore, for that medical negligence the complaint was filed claiming Rs.4,31,100/-.
A reply was filed by respondent no.1 before the District Forum, Barmer on 4.1.05 and the case of respondent no.1 was that since there was Pus in the jaw, therefore, through incision and drainadge method that was aspirated and it was wrong to say that any vein was cut 4 during the operation. It was further stated in the reply that Dr. Kapoor Chaudhary at Mathuradas Mathur Hospital, Jodhpur had found right Parotid duct Fistula and that could be due to known complication and might be the result of the surgery done by him on 10.3.04 but to say that he had not taken proper care was wrong one and thus there was no negligence on the part of respondent no.1 and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum, Barmer through impugned order dated 19.7.05 had dismissed the complaint inter alia holding that-
(i) That Dr. Chaudhary in his operation note as well as in his report, no where had stated that there was any medical negligence on the part of respondent no.1 while performing the operation of jaw on 10.3.04.
(ii) That the burden to proov the medical negligence was on the complainant and the complainant had failed to prove that fact as there was no expert evidence on the point that any medical negligence was committed by respondent no.1.
(iii) That respondent no.1 was a qualified surgeon to do that surgery which was done by him on 10.3.04 of the complainant appellant and respondent no.1 had only done minor surgery after giving local anaesthesia and if the operation of Parotid duct Fistula was performed later on, it might be a complication after drainage of the pus or after operation on the face.5
Agrieved from the said order dated 19.7.05 passed by the District Forum,Barmer, this appeal has been filed by the complainant appellant.
3. In this appeal the main contention of the learned counsel for the appellant is that while performing the operation of jaw on 10.3.04, the respondent no.1 had not taken due care and if he would have taken due care, the vein would have not been cut and he had not to go for further treatment at Mathuradas Mathur Hospital, Jodhpur and therefore, from that fact it is well established that respondent no.1 was negligent in performing the operation and the District Forum had committed serious error and illegality in dismissing the claim of the complainant appellant and the findings recorded by the District Forum by which complaint was dismissed suffer from basic infirmity, illegality and perversity and liable to be quashed and set aside and appeal be allowed.
4. On the other hand, the learned counsel appearing for the respondent no.1 has supported the impugned order of the District Forum.
5. We have heard the learned counsel for the appellant as well as for the respondent no.1 and gone through the entire materials available on record.
6. There is no dispute on the point that a minor operation of jaw was done by respondent no.1 on 10.3.04 in the hospital of respondent no.2 under local anaesthesia as there was Pus in the right jaw for which incision and drainage was done and black chips were removed.
67. There is no dispute on the point that thereafter the complainant was admitted in the Mathuradas Mathur Hospital, Jodhpur in the surgical unit of Dr. Kapoor Chaudhary on 29.3.04 and was discharged on 30.4.04 and operation was done on 5.4.04 and the diagnosis which was made by Dr. Chaudhary was Parotid duct Fistula.
8. Thus, in the facts and circumstances just mentioned above, the question for consideration is whether the disease which was found by Dr. Chaudhary i.e. Parotid duct Fistula was the direct result of the operation done by respondent no.1 on 10.3.04 or not or whether respondent no.1 was negligent in performing the operation of right jaw of the complainant appellant on 10.3.04 or not.
9. Before proceeding further something should be said on "medical negligence".
Negligence in general
10. Winfield has defined negligence as a tort which is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff.An act involving the above ingredients is a negligent act, it can very well be stated that negligence comprises, (a) Existence of legal duty; (b) Breach of legal duty; (c)Damage caused by the breach.
(a) Existence of legal duty-
Whenever a person approaches another trusting him to possess certain skill, or special knowledge on a given problem and 7 depends on him for service and dispensation of that skill, the second party is under an implied legal duty to exercise due diligence as is expected to act at least in such a manner as is expected in the ordinary course from his contemporaries. So it is not that the legal duty can only be contractual and not otherwise. Failure on the part of such a person to do something which was incumbent upon him to do so, that which would be just and reasonable tantamounts to negligence. Every time a patient visits a doctor for treatment of his ailment he does not enter into any written contract but there is a contract by implication and any lack of carelessness or proper care can make the erring doctor liable for breach of professional duty.
(b) Breach of legal duty-
There is certainly a breach of legal duty if the person exercising the skill does something which an ordinary prodent man would have done or fails to do that which an ordinary prudent man would have done in a similar situation. The standards are not supposed to be of the very high degree or of a very low degree but just the relative kind that is expected from an ordinary prudent man in the ordinary course of treatment.
(c) Damage caused by the breach-
The worng, injury occasioned by such a negligence is liable to be compensated in terms of money and the Courts apply the well settled principles for determination of the exact liquidated amount. In a suit for damages on account of negligence, the onus lies on the patient to prove that the doctor was negligent and the 8 said negligence resulted in the injury which is complained to be compensated.
Medical Negligence-
11. The term ' medical negligence' is nowhere defined in any Code or Act. No legislature, has so far, made any attempt to define it. Even the medico-legal jurists have not come forward to provide a specific meaning to this expression.
12. Basically, medical negligence means such negligence resulting from the failure on the part of the doctor to act in accordance with medical standards or vogue which are being practised by an ordinary and reasonably competent man practising the same art.
13. A branch of the civil wrongs is known as negligence. A sub-branch of this is medical negligence, which deals with situations in which a physician or surgeon or other member of the medical profession may have to pay compensation, if he has not exercised reasonable care. The degree of care to be exercised depends on the facts of each case. However, in general, it may be stated that the test is the standard of the ordinary skilled man,exercising and professing to have that special skill. If a medical man fails to measure up to that standard in any respect, he has been negligent and has to pay compensation to the person harmed by him.
14. Once a doctor accepts a patient, this principle becomes applicable, whether the doctor accepts fees or not, and whether the doctor is a private practitioner or a public servant, general practitioner or a specialist. A person who offers medical advice or 9 treatment, implicit undertakes that he has the requisite skill and knowledge. Such a person owes to the patient certain duties, of which the following are important-
(a) duty of care in deciding whether to take in a case;
(b) duty of care in deciding what treatment to give and in diagnosis;
(c) duty of care in administering the treatment; and
(d) a duty of care in answering a question put to him by a patient when he knows that the patient intends to rely on his answer.
A breach of any of these duties gives a cause of action for negligence to the patient.
Professional negligence
15. Professional negligence, rather medical negligence is that which , as the term suggests, relates to the medical profession and is the rsult of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties.
16. It may be stated here that to establish negligence on the part of the defendent, the claimant must show-
(a) what is the standard of care;
10(b) on the facts of the case, that the defendant's conduct fell below that standard;
(c) that the same had resulted to some injury to the patient.
17. In the present case the first question that has to be answered is whether respondent no.1 was a qualified surgeon or not for doing the surgery which was done by him on the complainant appellant on 10.3.04.
18. A bare perusal of the prescription slip of the Dr. N.R. Bhandari reveals that he is a retired P.M.O., MBBS, MS and Sen. consulting surgeon and thus it could be assessed that respondent no.1 was having good knowledge and experience of branch of surgery as respondent no.1 is a Master of Surgery having experience of doing surgery for many years as he has been a doctor of surgery in the Govt. of Rajasthan and after retirement he is Senior Consulting Surgeon with respondent no.2. Thus, on point of skillness he passes the test.
19. The second question that arises is whether he had exercised due deligence while performing the operation on 10.3.04 or not.
20. It may be stated here that as per the notes of operation dated 10.3.04 of respondent no.1, it is very much clear that minor operation was done of the right jaw of the complainant appellant and since there was Pus in the jaw, therefore, that pus was aspirated through incision and drainage method and black chips were removed.
1121. Taken into consideration the fact that there after on 29.3.04 the complainant appellant had consulted Dr. Kapoor Chaudhary who had found Parotid duct Fistula on his face and further operation was done on 5.4.04 in Mathuradas Mathur Hospital, Jodhpur, the question is whether that Parotid duct Fistula was the direct result of the operation which was done by respondent no.1 on 10.3.04 or not.
22. In our considered opinion, in absence of any expert opinion or opinion of medical board and when respondent no.1 was a qualified surgeon, it could not be inferred that he had not exercised due deligence in performing the operation of the complainant appellant on 10.3.04 and thus the findings recorded by the District Forum by which it was held that the complainant appellant had failed to establish the fact that respondent no.1 was negligent in performing the operation of the complainant appellant on 10.3.04 are liable to be confirmed one as they are based on correct appreciation of entire materials available on record.
23. Apart from that if the causes of Parotid duct Fistula are seen, from that it also appears that it might be the result of complications after drainage. For reference the word "Parotid Fistula" is defined as follows:
" A parotid fistula may be external or internal. The former is more common, which may be agin in front of anterior border of the masseter in Stensen's duct or posteriorly in a small duct of the parotid gland. It may be a complication after drainage of the parotid abscess or after an operation on the face. The external fistula of the Stensen's duct is a 12 distressing one. Its characteristic feature is ' watery discharge rolling over the face during meals or while chewing a lemon or chewing gum.' The quantity of watery discharge may be profuse, for injury of the main duct."
24. Thus, it could be easily said that in the present case if Parotid duct Fistula was found later on, that would be the result of complication for any incision and drainage done by respondent no.1 but that could not be treated as a carelessness on the part of respondent no.1 and from that point of view also the findings recorded by the District Forum are liable to be confirmed one on point of medical negligence against respondent no.1.
25. Thus, it is held that respondent no.1 had acted in a manner in which a professionally qualified medical man is reasonably expected to act in the interest of his patient as the respondent no.1 had performed the minor operation on complainant appellant in order to cure the appellant of his ailment.
26. To sum up the above discussions, we hold that the complainant appellant had failed to prove any deficiency in service on the part of respondent no.1 in the matter of his treatment but on the contrary respondent no.1 had proved by positive satisfactory evidence that he had taken reasonable care and caution in doing the minor surgery of the complainant appellant on 10.3.04 to the best of his ability and knowledge of the subject and had acted in good faith in the interest of the health of the complainant appellant.
27. For the reasons stated above, the findings recorded by the District Forum dismissing the claim of the complainant appellant 13 are liable to be confirmed as they are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic infirmity, illegality or perversity and hence, no interference is called for with the same and this appeal deserves to be dismissed.
Accordingly, the appeal filed by the complainant appellant is dismissed.
(Sikandar Punjabi) (Justice Sunil Kumar Garg) Member President