B.A. Shaikh, Presiding Member.
1. This is a complaint filed under section 17 of the Consumer Protection Act, 1986.
2. The case of the complainant as set out by him in the aforesaid complaint in brief is as under:
a. The original opposite party (for short O.P.) No. 1 is hospital which is run in the name and style as “Care Hospital” at Nagpur. The O.P. No. 2 is a doctor by profession. The complainant was suffering from back pain. He approached the hospital called as “Suretech Hospital” on 09/01/2013 and consulted Dr. Alok Umredkar in that hospital. He advised for his MRI of spine and some pathological tests. Therefore, the complainant got done his MRI of spine and then again consulted Dr. Alok Umredkar. He opined that the complainant is the patient of Pott’s Spine at D7-D8 vertebrae and advised the complainant for taking medicinal treatment by way of tablets.
b. The complainant wanted to take second opinion of O.P. No. 2 at the O.P. No. 1-hospital for the problem of his back pain. The O.P. No. 2 suspected Pott’s Spine and Malignancy. The O.P.No. 2 advised the complainant for immediate surgery and to get him admitted in the O.P.No. 1-hospital and asked the complainant to make arrangement of expenses required for operation and medicines. The O.P.No. 2 informed the complainant that it is not a critical operation but a very regular operation and there is no risk involved in it and he will be permanently free from back pain. Therefore, the complainant gave consent for operation.
c. The complainant was then admitted in the O.P. No. 1 hospital for surgery as per aforesaid advice given by the O.P. No. 2. On 30/01/2013 the O.P. No. 2 performed operation for the problem of Pott’s Spine of D7-D8. The procedure adopted during operation was Dorsal Laminectomy + Nerve root decompression + Instrumentation. The Dorsal Laminectomy included laminectomy of D6,D7,D8,D9 & D10 Vertebrae. The Nerve root decompression included relaxation compressed nerve by creating space by laminectomy. The instrumentation included fixation of metal plates with the help of screw at D6 & D9 Vertebrae.
d. After operation in respect of spine it is necessary to ask the patient to move his /her limbs to check whether during
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operation his spinal cord is damaged or not. However, when after the operation , complainant tried to move his lower limbs he was not able to do the same. He was even not able to sense toileting. The O.P. No. 2 suspected that it was due to anaesthesia. But after a long time gap when complainant could not be recovered from the said problem, the O.P.No. 2 referred complainant for fresh MRI of spine, CT Scan of Thoracic Spine, X-ray of chest and Abdomen. After receipt of the said reports, the O.P.No. 2 consulted various senior doctors and realized that the said problem is a post operative problem and cannot be cured. However, the O.P.No. 2 did not inform the correct cause of the said problem. He advised the complainant to take rest and said that complainant will be cured soon. The O.P.No. 2 discharged the complainant in such handicapped condition with the prescription of medicines and advice for rest. The complainant had come to the O.P.No. 1 on his legs by walking and there after discharged handicapped to the extent of no sensation over lower limbs & was not able to sense any sensation of toileting.
e. The complainant after a month also was not cured from the above problem occurred after the operation. Hence, he was brought to O.P.No. 1-Hospital and he consulted O.P.No. 2. The O.P. No. 2 declared him unfit for service from 10/03/2013 to 10/04/2013 and advised again for taking rest. Thereafter in every month the O.P.No. 2 used to certify the complainant unfit and advised for taking rest for that month. Therefore, the complainant could not be able to go to his work. The complainant then consulted Dr. Alok Umredkar at Suretech Hospital on 19/06/2013. Dr. Alok Umredkar advised the complainant for MRI of Spine. After receipt of said MRI Dr. Alok Umredkar opined about Myelomalacic changes at D9-D10 Vertebral level and suspected that the complainant is post TB Iatrogenic. Myelomalacic means softening of spinal cord. The most common cause of Myelomalacia is due to injury to spinal code. However, Iatrogenic means complication following a surgical procedure or medical treatment.
f. The complainant thereafter consulted various doctors and all of them suspected the wrong treatment given by O.P. Nos. 1&2. The doctor of Government Hospital, Bhandara examined the complainant and issued disability certificate mentioning it’s reason as operation of Pott’s Spine at D7-D8. On 27/08/2014 the complainant was examined by Dr. D.M. Patrikar and opined that there is Focal Cord atrophy and mylomalacia at D9-D10 level.
g. Thereafter, the complainant issued notice to the O.P. No. 2 on 08/12/2014 and informed that the problem from which he is suffering due to his negligence and claimed compensation of Rs. 90 Lacs from him. The said notice was received by the O.P.No. 2 on 11/12/2014 but he did not give reply to that notice.
h. The problem of Pott’s Spine could have been cured with medicines only. The advice given by the O.P. No 2 for operation is unethical which shows that it was done only to grab money from the complainant. The O.P.Nos. 1&2 therefore committed deficiency in service by giving unethical advice of surgery. The O.P. No. 2 went to the extent of hiding the risk involved in the operation and represented the complainant that operation is very safe and non critical. The O.P.No. 2 while conducteing laminectomy & instrumentation acted negligently and injured spinal code at D9-D10 level. Due to that reason the complainant suffered Focal Code Atrophy and Myelomalacia. The complainant is shown to be Iatrogenic patient.
i. Therefore, he filed the present consumer complaint seeking following reliefs:-
(i) Direct the O.P. Nos. 1&2 to pay the complainant total compensation of Rs. 71,01,187/- for loss incurred due to deficiency in service and medical negligence by the O.Ps. of which head wise details are given by him in para No. 9 of the complaint.
(ii) Direct the O.P.Nos. 1&2 to pay to the complainant of Rs. 25,00,000/- for the pain and sufferings caused to him and his family due to deficiency in service and medical negligence by them in treating the complainant for Pott’s Spine.
(iii) Direct the O.P. Nos. 1&2 to pay to the complainant litigation cost of Rs. 50,000/-.
3. The complainant along with complaint filed copies of documents namely two letter of advice of Dr. Umredkar, two out patient cards of O.P.No. 1, discharge-card of O.P.No. 1 hospital , opinion of Dr. D.M. Patrikar, pay slip of complainant, notice issued to the O.P. No. 2 by the complainant.
The complainant also filed his evidence affidavit along with copies of following documents.
O.P.D Card of General Hospital, Bhandara, O.P.D. Card of Government Medical College & Hospital, Nagpur , Medical Certificate of Care Hospital , Disability Certificate, Out Patient Card of Care Hospital, Medical Certificate of Care Hospital, MRI Report of Suretech Hospital, Four X-ray opinions, One MRI opinion of Suretech Hospital, Bills, deposit receipt of Suretech Hospital.
4. On the other hand, the O.P. Nos. 1&2 filed their reply separately to the complaint and thereby resisted the complaint.
5. The case of the O.P.No. 1 set out by it in its reply to the complaint in brief is as under.
The complainant prior to approaching the O.P. No. 1- Hospital was under treatment of Suretech Hospital for weakness in both lower limbs. He had every knowledge of his health problem when he visited the O.P.No. 1-Hospital. He was brought on wheel chair. The doctor of the O.P.No.1 had operated the complainant with proper care and skill. There was no deficiency in service on the part of the O.P.No.1. There is no negligence during surgery by the O.P.No. 2. The complainant approached the O.P.No. 1 through its employer under Central Government Health Scheme (for short CGHS). Hence, CGHS is necessary party to this complaint and it is not joined. The complaint is bad in law for non joinder of necessary party. The allegations made by the complainant in the complaint are not supported by the expert opinion as required. All the allegations made in the complaint against the O.P. No. 2 are denied in the reply. It is submitted by the O.P. No. 1 that the complaint may be dismissed.
6. The O.P.No. 2 in its reply made submission in brief is as under.
(a) The complaint is bad in law for non joinder of necessary party. The complainant has not come before this Commission with clean hands as he has neither disclosed about reimbursement of cost of surgery and other expenses from his employer. The complainant has not filed any expert opinion in support of the allegations and therefore, the complaint deserves to be dismissed. It is denied that the O.P.No. 1 provided deficient service & he is guilty of medical negligence. The O.P.No. 2 also denied all the allegations made in the complaint against him by the complainant.
(b) The complainant has visited the O.P.No. 2 on 24/01/2013 for consultation through his employer. At the given time, he was having upper back pain which was radiating to his chest. After going through MRI report the O.P.No. 2 diagnosed Port’s Spine D7-D8. The complainant was having neuro deficit in both lower limbs. He was advised surgery & estimate as per CGHS (Central Government Health Scheme) was given to him as requested by him. The cost of surgery was supposed to be paid by the employer of the complainant.
(c) On 29/01/2013 the complainant again visited the O.P.No. 2 complaining severe back and chest pain with neurodeficit of both lower limbs. Therefore, he, his son and relatives were given due understanding about all the risks, consequences & benefits of surgery. They gave willingness for admission and surgery. The clear understanding was given to the complainant and relatives that after proposed surgery , the complainant’s neurodeficit may or may not improve. It was also told by the O.P.No. 2 to the complainant and his relatives that any spine surgery carries high risk of increasing neurodeficit and proposed surgery was mainly for stabilization & decompression of spinal cord and therefore its outcome cannot be guaranteed. The complainant gave consent in writing for the same.
(d) The complainant was thereafter admitted in the hospital of O.P.No. 1 on 29/01/2013 and after evaluated for surgery by anaesthetist & physician before performing surgery, the surgery was done on 30/01/2013, which went smoothly.
(e) After operation the complainant made complaint of weakness on repeated occasions. The other doctors namely Dr. Sangram Wagh, Neurologist, Dr. Samir Kalkotwar, Dr. Pakmode & Dr. Alok Umredkar have also examined the complainant but they have not mentioned in their notes any wrong committed during surgery or by act of surgery. They stated that the O.P.No. 2 has rightly done the surgery and nothing more could be done. The complainant and his relatives were most anxious & sought full recovery from the O.P.No. 2.
(f) The O.P.No. 2 as per his knowledge and expertise in his field has tried his best to cure & make complainant fit. He followed all the guidelines of surgery. There is always risk in spinal surgery and once the spinal nerves are dead, chances of recovery are very less.
(g) As the complainant was having preoperative weakness of both lower limbs, i.e. unable to move his both lower limbs before surgery. Hence, it was just impossible for him to suddenly start moving his lower limb just after surgery. The complainant has made false allegations without any expert opinion. The complainant has filed the complaint afterthought and based upon his assumptions and presumptions, without any medico- legal support. The O.P.No. 2 has not rendered deficient service and not committed any medical negligence. Hence, he requested that complaint may be dismissed.
7. The O.P. No. 2 has filed his own affidavit in support of the aforesaid reply. He also filed copies of documents namely consent form of the complainant, witnessed by his wife, informed consent for anaesthesia procedures duly signed by the complainant along with his wife and others, nursing admission assessment list, patient consent form signed by the son in law of complainant, general authorization of treatment during hospitalization at Care Hospital, surrogate consent form signed by complainant’s son in law and admission notes.
8. During pendency of the complaint, an application was made by the complainant for obtaining medical expert opinion. His said application was granted as per order dated 27/09/2017. It was directed that the medical board be duly constituted by the Dean of Government Medical College & Hospital, Nagpur which will examine all the case papers filed by both the parties and also to examine the complainant , if any, and submit the opinion about medical negligence if any on the part of the O.P.No. 2 during treatment provided to the complainant. As per the said direction, the board was constituted which examined all the medical case papers and submitted report to this Commission along with letter dated 01/01/2018. It is pointed out in the said report in its conclusion that there is no medical negligence.
9. After final hearing advocates of both parties, this Commission found that it is necessary to obtain further report /opinion from Medical Board. Therefore, speaking order was passed on 21/07/2018 by this Commission. Accordingly, the Medical Board was again constituted which examined all medical case papers and submitted fresh report along with letter dated 16/08/2018. It was repeated in the said report that there is no medical negligence in providing treatment to the complainant.
10. No oral submission was made by the advocate of the complainant after the second report as above was received from the Medical Board. We have perused the entire record and proceedings of the complaint.
11. The learned advocate of the complainant reiterated the aforesaid case of complainant during his argument and submitted that the complainant has proved the medical negligence on the part of the O.P. Nos. 1&2 by filing evidence and documents on record as discussed above. Hence, he requested that the complaint may be allowed.
12. On the other hand, the learned advocates of the O.P.Nos. 1&2 submitted that there is no medical opinion in support of the case of the complainant that there is medical negligence on the part of the O.P. Nos. 1&2. They also submitted that on the contrary the expert opinion shows that there is no medical negligence. Hence, they requested that the complaint may be dismissed.
13. The learned advocate of the O.P. No. 2 relied on the following authorities in support of the defence of the O.P. No. 2.
i. Pt. Parmanand Katara Vs. Union of India & others, reported in 1989 AIR 2039. The said decision is given by the Hon’ble Supreme Court on 28/08/1989. The issue involved in the said case was regarding obligation on the State to preserve life.
ii. Laxman Balkrishna Joshi Vs. Trimbak Bapu Godbole & another, reported in 1969 AIR 120, decided by the Hon’ble Supreme Court as per order dated 02/05/1968. It is held in the said case that a person who holds himself out ready to give medical advice and treatment impliedly holds forth that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient , owes certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action of negligence against him. The medical practitioner has a discretion in choosing the treatment which he proposes to give to the patient and such discretion is wider in cases of emergency, but he must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of skill and knowledge and must exercise a reasonable degree of care according to the circumstances of each case.
iii. Sudha Gupta Vs. State of M.P. & others, decided by the Hon’ble Madhya Pradesh High Court as per order dated 24/11/1998, reported in 1999(2) MPLJ 259. It is held in that case that it must not be lost sight of the care is a matter of degree, but it is difficult to define the precise legal standard of care required in all cases of negligence. The standard of care then is a question of fact depending upon the circumstances of each case. In determining this standard what has to be considered is as to how a reasonable and prudent man would behave under given circumstances. It is also held that the negligence is the omission to do something which a reasonable man guided upon those consideratins which ordinarily regulate the conduct of human affairs will do or doing something which a prudent and reasonable man would not do. In the realm of negligence rigid rules give right to avoidable injustice. The degree of competent care and skill therefore by which the respondent are to be judged has to be such as may be reasonably expected from an average person in his profession and from any person specially gifted or qualified. The burden of proving negligence rests upon the person who asserts it. In medical negligence cases it is for the patient to establish his case against the medical man and not for the medical man to prove that he acted with sufficient care and skill.
iv. Indian Medical Association Vs. V.P. Shantha & others, decided by the Hon’ble Supreme Court as per order dated 13/11/1995, reported in 1996 AIR 550. In that case common question was raised , viz., whether and, if so in what circumstances, a medical practitioner can be regarded as rendering service under Section 2(1) (o) of the Consumer Protection Act, 1986. Another question raised in that the question whether the service rendered at a hospital /nursing home can be regarding as service under Section 2(1) (o) of the said Act. It is held that unless it is found that services are rendered free of cost to the patient availing services from the Nursing Home, it cannot be held that said services did not constitute service as defined under Section 2(1)(d) of the said Act.
14. At the outset we find that the medical reports were obtained twice from the Medical Board by this Commission after referring all the medical case papers of treatment to the respective Medical Board. First report shows the opinion of the Expert Committee as under,
“i. The patient was a diagnosed case of Pott’s Spine D7 D8. As he has developed parapresis, advice for operation is not wrong.
ii. Proper consent of the patient was taken before surgery, explaining the risk involved in the surgery.
iii. Going by the records which states surgical procedure in the form of Posterior Laminectomy with Nerve Root Decompression with Instrumentation, there does not appear to be negligence.
iv. Patient was regularly followed up in ward by residents, physiotherapist, treating surgeons and general surgeon.
v. There are no Hospital notes that suggest unethical advice before and after operation.”
15. The second opinion obtained by this Commission from the Medical Board shows the conclusion as under,
“i. There is no evidence and it is not correct that the respondent No. 2- Dr. Mukesh Sancheti acted negligently and injured the spinal cord while operating the patient.
ii. There is no evidence it is not correct that respondent No. 2- Dr. Mukesh Sancheti committed deficiency in service and was negligent in conducting the operation.”
16. The first report given by Medical Board was comprising of four doctors namely Dr. Jagtap, Associate Professor, Orthopaedic Department, Dr. Bansod, Professor and Head of Medicine Department, Dr. Keoliya, Professor and Head of Forensic Medicine Department & Dr. Rajesh Gosavi, Medical Superintendent, Government Medical College and Hospital, Nagpur.
17. The second report given by Medical Board comprising of three doctors namely Dr. Y. Bansod, Professor and head of Medicine Department, Dr. P. Patnaik, Neurosurgeon, Trauma Care Centre, Nagpur and Dr. S. Mitra, Professor and Head, Orthopaedic Department and Chairman of the Committee.
18. We thus find no reason to disbelieve the aforesaid opinion given by the aforesaid expert doctors which negatives the case of medical negligence alleged by the complainant.
19. The complainant relied on the medical case papers filed along with –complaint. However none of the case paper filed by the complainant on record of the complaint prove that the O.P.Nos. 1&2 are guilty of medical negligence either pre and post operation and failure in taking proper care before and after operation. All the medical case papers filed by the complainant , to our mind do not prove that the O.P. Nos. 2 did not exercise reasonable degree of skill and expertise while performing surgery on the complainant.
20. The O.P. No. 2 was having required qualification while performing surgery. He also possessed skill and knowledge for the purpose of surgery. As per above expert reports, advice given by the O.P. No. 2 for operation is not wrong. Therefore, we find no substance in the allegations made by the complainant that the advice for operation given by the O.P. No. 2 was wrong and said advice was given only for extracting money from him. Moreover, it is also seen that proper consent of complainant was taken before surgery, explaining the risk involved in the surgery.
21. Thus, relying on the aforesaid medical expert reports given during the pendency of the complaint and considering that there is no cogent evidence in support of allegations made in the complaint against the O.P. Nos. 1&2 about medical negligence, we hold that no deficiency in service can be attributed to them ( O.P. Nos. 1&2) and no medical negligence can be also attributed to them. Therefore, we are inclined to hold that the complaint deserves to be dismissed. Accordingly the following order is passed.
i. The complaint is dismissed.
ii. No order as to cost.
iii. Copy of order be furnished to both parties, free of cost