L. Manoharan, President:
1. Complaint for direction to the opposite parties for payment of compensation for deficiency of service and negligence.
2. The complainant’s case in brief is as follows:
Complainant had severe backache, therefore, on 3.1.1995 she consulted the second opposite party, he advised her to get herself admitted in the Jubilee Memorial Hospital, Thiruvananthapuram and accordingly she got admitted in the said hospital on 4.1.1995. MRI scan, Ext. P1 was taken on 5.1.1995 at Sree Chitra Thirunal Institute for Medical Science and Technology, Thiruvananthapuram, Ext. P2 is the photocopy of the report of the MRI scan. She was discharged on 7.1.1995 and was admitted in the first opposite party hospital on the same day. She was treated by the second opposite party. In the context of Exts. P1 and P2, second opposite party diagnosed her complaint as IVDP L4 - L5(I). She was under treatment in the first opposite party hospital from 7.1.1995 and was discharged on 19.1.1995. Ext. P3 is the photocopy of the discharge summary; for the treatment the first opposite party collected charges including professional fees. Since even after the treatment she did not get the desired relief and pain persisted she once again consulted the second opposite party who advised Laminactomy the Disecotomy at L4 - L5 level is necessary to relieve her back pain. Complainant was, therefore, again admitted in the first opposite party hospital on 23.2.1995. On 25.2.1995 she was subjected operation and the second opposite party told her that the laminactomy and Disecotomy was done at L4 - L5 and that the operation was an absolute success. At that time her husband was given to believe the operation was done by the second opposite party. She was under post-operative treatment in the hospital till 4.3.1995 on which date she was discharged. Ext. P4 is the photo copy of the discharge summary. After discharge, while she was at her residence, on 4.3.1995 itself she found the whole bed sheet soaked with fluid leaked out through the surgical wound. Immediately she was again taken to the first opposite party hospital. She was seen in the casuality by the 3rd opposite party. On examination a gaping wound was discovered and the wound was then resutured and she was allowed to go home. The said procedure is noted in Exbt. P3 discharge summary. This itself constituted deficiency of service on the part of the opposite parties as the opposite parties caused dural tear and leakage of ceribro spinal fluid and wound infection. On 7.3.1995 on finding that the dressing of the wound and the stitches completely soaked with the leakage of spinal fluid, she had to be taken to the first opposite party hospital. She was examined in the casuality where the dressing was changed and consoled her stating that there is no cause for any anxiety. For attending the same fee was collected, Exbt. P5 is the receipt issued by the first opposite party. The operation and the post- operative care did not give her relief. On 16.3.1995 she was again taken to the first opposite party hospital and the third opposite party removed the sutures and advised her to go home. The headache she had did not respond to the medicines prescribed. Though the second opposite party assured the complainant that it would be possible for her to move about and would be able to resume her ordinary house home hold activities, she was unable to attend it as the back pain persisted She again consulted the second opposite party, but he tried to convince her stating that the nerve centre must have been disturbed and that it would disappear in due course of time. But there was no improvement, the pain aggravated and, therefore, she again consulted the second opposite party who prescribed pain killing drugs but the same could not in any way reduce her pain. She started to loose the control of movements of her legs and toes. The first opposite party has collected fee for the surgery and other expenses including the professional fees of the Surgeon and Anaesthetist. She was taken to Madras where she consulted P.W. 3 Professor of Orthopaedics in Sri Ramachandra Medical College and Research Institute, Porur, the consultation was on 7.11.1995. Exbt. P7 X-ray and Exbt. P6 MRI scan were also taken at Vijaya Hospital. Exbt. P21 is the report of the X-ray on 8.11.1995 and Exbt. P22 is the copy of MRI report from Vijaya Hospital. The X-ray and the MRI were taken by P.W. 2. The investigation revealed that as a matter of fact Laminectomy and disecotomy said to have been done at site L4 - L5 on 25.2.1995 at the first opposite party hospital at Thiruvananthapuram by the third opposite party with the assistance of second opposite party was actually conducted wrongly at site L5 – S1 instead of L4 - L5 level as required. This itself would demonstrate, the opposite parties failed to exercise the care required of them—both at the operation as well as in the post-operative period the same would constitute negligence under Law. The same resulted in great pain and
Please Login To View The Full Judgment!
discomfort and financial loss to the complainant. P.W. 3 conducted the surgery at L4 - L5 with spinal fusion and steffee instrumentation on 14.12.1995. Then the L5 – S1 facets were found partly damaged and surrounded by scar tissues, intence adhesion of dura to soft tissues at L5-S1 level showing a previous dural tear were also noticed. Laminectomy was conducted at L5 – S1 level by the opposite parties. She was under treatment at the said hospital and was discharged on 22.12.1995. Exbt. P15 is the copy of the discharge summary. Complainant issued notice to the first and second opposite parties claiming compensation for the aforesaid negligence. Exbt. P16 is the copy of the said notice. The opposite parties sent a reply but the reply did not reveal as a matter of fact it was the third opposite party assisted by the second opposite party that the surgery was conducted. The second opposite party did not send a reply but informed the complainant’s husband that the surgery was done by the 3rd opposite party. Consequently the complainant demanded the first opposite party to furnish her with the hospital records, by Ext. B29 reply dated 24.5.1996, the first opposite party informed the complainant that it was not customary to furnish the hospital records. There- upon the complainant issued Exbt. P17 notice dated 11.6.1996 to all the three opposite parties. In the meanwhile the complainant received Exbt. P18 reply dated 17.6.1996 which was sent at the instruction of the second opposite party. Since the opposite parties did not comply with the demand the complaint is instituted wherein she claims a total compensation of Rs. 7 lakhs.3. Opposite parties 1 and 3 filed a version adopting the contentions they have raised in their respective affidavits and they wanted to treat the contentions raised in the affidavit of the second opposite party as his version.4. In the affidavit by the first opposite party though it does not dispute that the complainant was admitted in the hospital on 23.2.1995 and was discharged on 4.3.1995, it sought to maintain that the operation was conducted by the second and third opposite parties together, the operation was a complete success and that adequate post- operative service was given, they denied the allegation of deficiency of service and negligence. It is also contended, after 4.3.1995 the complainant was attended only in casuality, and that at the pre-operative period, at the operation and at the post-operative period, due attention and care was given to the complainant and there was no occasion for any deficiency of service. The first opposite party wanted dismissal of the complaint.5. In the affidavit the second opposite party sought to maintain that himself is not an employee of the first opposite party hospital and that himself is only an honorary surgeon in the first opposite party hospital. He retired from the Medical College service as Director and Professor of Orthopaedics, he is M.S. in Orthopaedics and has experience of 38 years. The complainant is the wife of one Natarajan whose brother Dr. Surendran who was Director and Professor of Anaesthesia in Medical College, Thiruvananthapuram, and Dr. Surendran’s wife Dr. Vijayalekshmi who Retired as Professor of Medicine from the Medical College, Thiruvananthapuram, were colleagues of the second opposite party in the Medical College Hospital. Through the aforesaid Dr. Surendran and Dr. Vijayalekshmi the complainant used to consult him. He admits para (1) of the complaint but maintains that he does not know the amounts collected by the first opposite party; maintains that the operation was successfully conducted and the complainant was discharged on 4.3.1995. He asserts that he had told the husband of the complainant that the operation was done by the third opposite party. The allegations to the contrary are denied. He learned later from the third opposite party that he saw the complainant on 4.3.1995 and that the wound was sutured. The same was healing well, he contended, right from the beginning, from 3.1.1995 he attended the complainant with skill and deligence expected of a surgeon and managed her with due care, allegation of negligence is denied. He maintained, there was no dural tear or leak of cerebro spinal fluid that was only fatnecrosis and sero sanguinous discharge. Under what circumstances the complainant came to consult P.W. 3 is not known to him. After the operation in the first opposite party hospital the complainant had no difficulty in walking. There is no chance of the complainant losing control of the movement of her legs, she had gained absolute relief after the operation in the first opposite party hospital. It is admitted that laminactomy at L5, was done and lower border of L4 was nibbled, and that the bulging disc prolapse was seen at L4-L5. The scout film at the time of operation would disclose the same. The dissector placed on L4-L5 disc was clearly visible. Identification of place where the operation had to be conducted thus was made with due care. L5-S1 disc was found to be not prolapsed. The claim that the surgery was done at L5 – S1 is not true. X-ray and MRI would show L5 laminactomy. The allegations to the contrary in the complaint are not true, therefore, are denied.6. In the affidavit by the 3rd opposite party he supports the averments of the second opposite party in his affidavit; he maintains, the operations was done by him on 25.2.1995 and that was at L4-L5 level. He reiterates that the brother of complainant’s husband as well as R.W. 6 were his colleagues in the Medical College Hospital. The allegation of dural tear and leak of Ceribro Spinal Fluid are denied. The allegation of negligence and deficiency of service too are denied and wants the complaint to be dismissed.7. The complainant gave evidence as P.W. 1. P.W. 2 is the Radiologist who took Exbts. P6 and P7, and issued Exbts. P21 and P22 reports. P.W. 3 is the Surgeon who conducted the surgery on the complainant in Sri Ramachandran Medical College. The complainant produced Exbts. P1 to P32. On behalf of the first opposite party R.W. 1 the administrator was examined. R.W. 2 is the second opposite party and the 3rd opposite party is R.W.3. R.W. 4 and R.W. 5 are examined as experts and R.W. 6 is the aforesaid Dr. Vijayalekshmi. On behalf of the opposite parties Exbts. R1 to R4 were produced.8. The points that would arise for consideration are:(1) Is the petition maintainable ?(2) Whether the allegation of negligence and deficiency of service true ?(3) Is the complainant entitled to compensation ? If so, what is its quantum ?(4) Reliefs and costs ?9. Point No. 1:There is no case for the opposite parties that the service rendered by them was free of cost. R.W. 1 said Exbt. P27 series consultation fees were charged by them, that the fees for consultation and operation would be given to the concerned doctors and that for honorary surgeons also they collect fees and pay the same to them; he added that as the patient wanted to produce the bills for reimbursement they issued the bills. Exbts. P27(a) and (b) would reveal that fee was being collected for the service of the doctors. Professional fee is collected as per Exbt. P27(b), theatre charges are also collected; the items for which amount is collected from the patient is shown in Exbt. P27 series. The service rendered by the first opposite party or opposite parties 2 and 3 since was not free of cost the complainant is a consumer and hence is entitled to maintain the complaint. Point found in favour of the complainant.10. Point No. 2:In a case where the complainant alleges negligence in service or deficiency of service the burden of proof is on the complainant. As has noticed, the complainant’s case is, since she was having back pain she consulted the second opposite party and as per his advice she was admitted in the Jubilee Memorial Hospital and got Exbt. P1 MRI scan from the Sree Chitra Thirunal Institute for Medical Science and Technology and was under the treatment of the second opposite party. Since the treatment did not yield any favourable result as per the advice of the second opposite party she got herself admitted in the first opposite party hospital on 7.1.1995 and was advised to undergo Laminactomy and Disecotomy at L4-L5 level. According to the complainant though the operation was intended to be at L4-L5 level the same was wrongly done at L5/S1 level, consequently though she was discharged on 4.3.1995, the same day she had to be taken back to the hospital as there was profuse leak from the surgical site and there was a gaping of wound. She was attended by R.W. 3 who sutured the wound. According to her there was dural tear consequent upon which there was Ceribro Spinal Fluid leak. This is the one aspect which is projected by the complainant in support of her case of deficiency of service and negligence on the part of the opposite parties. The other, as indicated early, is the failure to conduct the operation at L4-L5 level instead the same came to be conducted at L4/S1 level. Before going into the said aspects it will be useful to note the duties of a doctor as is pointed out by the Supreme Court in the decision in Dr. Laxman Balakrishan Joshi v. Dr. Trimbak Bapu Godbole & Anr., AIR 1969 Supreme Court 128. As to the duties of a doctor the Supreme Court in para 11 observes: “A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.” But as already indicated, when a complainant alleges negligence against a surgeon the burden is on the complainant to establish the same.11. The fact that the complainant was operated upon by the third opposite party along with the second opposite party on 25.2.1995 is not in dispute. That she was discharged on 4.3.1995 and that she was taken back to the hospital on the same day and was attended by R.W. 3, the 3rd opposite party at the casuality also is not in dispute. According to the complainant there was a gaping wound from which there was profuse leakage which the complainant maintained was Ceribro Spinal Fluid. The complainant has a case that this was the result of dural tear. As has noticed, though it is not disputed that the complainant had to consult again on the same day of her discharge and that she was attended by R.W. 3 on the same day re-sutured the wound, the case of the complainant that there was dural leakage is not admitted, the opposite parties maintained the same is in fact necrosis and Sero Songuinous discharge. To substantiate the complainant’s case the complainant relies on an admission made on behalf of the second opposite party in Exbt. P18 reply and also the evidence of P.W. 2 and P.W. 3 along with Exbt. P15 as well as Ext. P22. Exbt. P18 is the reply sent to Exbt. P16 notice issued by on behalf of the complainant. Exbt. P18 is dated 18.2.1996. It is the case of the complainant it was registered on 18.6.1996 and was received on 20.6.1996. The same was issued by Advocate Sibi Mathrew. Therein the fact that there was dural tear and leakage of Ceribro Spinal Fluid and wound infection are admitted, but states that the same occurred due to the carelessness of the complainant as the complainant acted against the direction of the doctor who performed the surgery. There is no case or proof to the effect that the complainant acted against the direction of the doctor. The admission is sought to be explained by the opposite parties on the ground that though the second opposite party required the lawyer to show the draft of the reply the same was not shown to him. It is urged by the learned Counsel for the opposite parties, in the context of Exbts. P19 to P20 replies the admission in Exbt. P18 stands explained which a party against whom an admission is sought to be proved, under law, is entitled to explain the same and take away rigour and probative force of the same. According to the learned Counsel since in Exts. P19 and P20 the second and third opposite parties have asserted that the leakage was not Ceribro Spinal Fluid but was only fact nercosis the admission Ext. P18 cannot gain force. On the other hand the learned Counsel for the complainant made reliance on the decision of the Kerala High Court in Kittunni Gupthan v. Kuttikrishna Gupthan, 1993 KLT 926, to maintain, since Ext. P18 was sent as per the instruction of the second opposite party it would bind him unless he proves otherwise. It is held in the said decision : “when a member of the Bar writes a letter purporting to be instructed by a client there is a presumption until the contrary is proved, that the letter was written as per his instructions”. In judging whether the admission in Exbt. P18 can be taken to have been explained, one cannot forget that a lawyer would not act against the interest of his party and normally he would not issue a notice on behalf of the party without proper instructions. This is particularly so in a case where scientific and technical matters are involved. As has noticed whereas Exbt. P18 was on 17.4.1996 Exbts. P19 and P20 were only on 29.5.1996. It is true Exbt. P18 was received only on 20.6.1996; the Counsel who issued Exbt. P18 is the best person to state as to the circumstance under which Exbt. P18 came to be issued, whether he acted beyond the instruction of his client is a matter which the client who alleges the same has to prove. The mere testimony of the client in such matters cannot be enough. There is no explanation forthcoming why the Counsel who issued the notice was not examined. We are unable to accept the argument of the learned Counsel for the opposite parties in this regard.12. This particular aspect does not stand in isolation; reliance was made by the learned Counsel for the complainant on Ext. P5 cash bill in support of his argument that as a matter of fact the fluid leakage was noticed by the surgeon and sample was sent for laboratory test. It will be noticed that the complainant had to visit on 7.3.1995 also and she was attended by Dr. Mahesh Babu. Exbt. P5 is dated 7.3.1995 the fact that the wound was dressed on that day is not in dispute. Exbt. P5 shows Rs. 66/- was collected for laboratory; the explanation sought to be made is, that the said fee was collected for test of the complainant’s husband’s blood who when accompanied the complainant on that day felt uneasy and his blood etc. had to be tested. But the complainant has produced Exbt. P32 dated 4.3.1995 which stands in the name of the complainant’s husband, there fee is seen collected for laboratory as well as ECG. Thus it cannot be said that the fee collected as evidenced by Ext. P5 was towards the charges for the service to complainant’s husband. As a matter of fact where as Ext. P5 bill stands in the name of the complainant Exbt. P32 stands in the name of her husband. Therefore, having regard to the fact that on 7.3.1995 the complainant visited the first opposite party’s casuality where she was attended by a surgeon and the wound was dressed when a bill is seen issued in her name which includes charges for laboratory, the same certainly would support the case of the complainant that the fluid sample was sent for laboratory test. Exbts. R1 and R2 case records do not contain result of the laboratory test. It was urged by the learned Counsel for the opposite parties that in such situation the test result would be given to the patient and they would not keep it among the case records. This argument has to be appreciated in the context of the fact that there is no dispute that she was attended in the casuality and that fee was collected and if at all the test result to be noted that is by the doctor who had attended her. The fact that she was an in-patient and she underwent surgery there and the visit was in connection with the treatment for the said surgery, the probability is that as an institution the result would be kept in the hospital itself. There is also no acceptable material to show in such situation result would be handed over to the patient.13. There can be no dispute that the said material is necessary for a proper and effective adjudication of the dispute. The withholding of the same would, in the circumstance, generate adverse inference which would go in support of the complainant’s case.14. Now as to the dural tear, the learned Counsel for the opposite party pointed out when P.W. 3 was asked as to dural tear he answered that he has not stated so; but he did not stop there, he proceeded to state that the dense nature of the adhesions suggested a possible earlier dural damage. The statement of P.W. 3 has got probative value inasmuch as he had occasion to see at surgery the said part of the body of the complainant. Further, this has to be taken along with the very admission made in the reply notice Exbt. P18 as to the dural tear. The cumulative effect of the said admission along with the aforesaid attending circumstance particularly the evidence of P.W. 3 in this aspect would prove the complainant’s case that there was dural leakage resulting from dural tear. Then, it has to be found, had the care and deligence expected of the surgeon been employed, a dural tear resulting leakage Ceribro Spinal Fluid would not have occasioned, that would constitute negligence under law.15. As has already noted the case of the complainant as regards the alleged negligence on the part of the surgeons has two limbs, one is the tear of the dural resulting in the leakage of the dural fluid; and the other is, the very surgery was not conducted as was diagnosed and required; that also resulted in injury to the complainant. Exbt. P2 scan report taken on 5.1.1995 states that clinical diagnosis was IVDP L4-L5. It states that there was moderately large posterocentral disc herniation at L4-L5 and it proceeds to state that L4-S1 disc space is narrowed and degenerative changes are seen in inferior endplate of L5. What is significant to be noted is, there was intervertibral disc prolapse at L4-L5 level. There is no dispute that the surgery was intended to correct the same at L4-L5 level. According to the complainant instead of conducting the operation at that level the same was in fact done at L5-S1 level. As has already noticed, the burden of proof is on the complainant to establish the negligence as is maintained by her in this regard. The main piece of evidence relied on by the complainant in support of her case is Exbt. P15 the discharge summary from the Sri Ramachandra Hospital, Madras and Exbt. P22 the copy of MRI report taken by Vijaya MRI, Madras. Reliance was also made on the evidence of P.W. 2 who took Exbt. P7 X-ray, Ext. P6 MRI, and issued Exbts. P21 and P22 reports respectively. The same are relied on to corroborate the evidence of P.W. 3 who conducted the surgery at Madras. On the other hand to dislodge the probative value of the said pieces of evidence the opposite parties relied on the evidence of P.W. 4 and R.W. 5 the exerts.In Exbt. P22 the impressions are stated as:“(1). Stenosis of Left L5-S1 Intervertibral Foramina ? Due to post surgical Bibrosis.(2). Posterocentral Herniation of L4-L5 DIC.”Exbt. P22 also states that “evidence of laminectomy is seen at L4-S1 level.... “The L4-L5 disc shows posterocentral herniation. The L5-S1 disc is reduced in height with loss of normal signal intensity morphology. The left L5-S1 intervertebral foramina is stenosed, by hypointenselesion”. P.W. 2 supports the aforesaid report. To a question he answered whatever is seen in MRI is based on the signal intensity changes. But the learned Counsel for the opposite party sought to maintain that the conclusion as is seen revealed in the impressions particularly with respect to items No. 1 concerning L5-S1 cannot be final because the question mark therein would reveal that the conclusion as to that aspect is not firm. Since there is a question mark in Item No. 1 that can be described as not a firm conclusion. But the evidence of P.W. 3 also has to be taken into account in this regard. In answer to a question P.W. 3 answered that there was evidence of post- operative fibrosis at L5-S1 level. As has already noticed, what is stated by P.W. 2 that there was post-surgical fibrosis is confirmed by P.W. 3 in his evidence. In the context it is necessary to advert to the case of the opposite parties in this regard, according to them there was not even an occasion to conduct surgery at L5-S1 level. It is submitted that laminactomy was conducted at L5 so as to enable to see both L4-L5 as well as L5-S1 and on such examination it was seen that there was no prolapse at L5-S1 level; therefore, what is stated by P.W. 2 and P.W. 3 as well as in Exbt. P22 in this regard cannot be accepted. The case of the complainant is that surgery though was diagnosed to be conducted at L4-L5 level not only was not conducted, but was performed at L5-S1 level. The claim of P.W. 3 is that the prolapse at L4-L5 level had to be attended surgically and he attended the same; the features showed that the prolapse at L4-L5 was not attended. It was urged on behalf of the complainant the laminactomy conducted at L5 itself is inconsistent with the claim to their having conducted the surgery at L4-L5 level for according to him had surgery been conducted at L4-L5 level, laminactomy had to be at L4. We may advert to the discharge summary Exbt. P15 from Sri Ramachandra Hospital, under the heading of “Spine” mention is made as to scar at L5 to SI area, EHL, right 4 and 3 left. Under the head of “investigations” it is mentioned that X-ray showed laminactomy at L5-S1 and MRI also showed L4-L5 Posterlateral and central disc protrusion. It mentions post-laminactomy adhesion L5-S1. It states that there was intense adhesion of dural to the soft tissues of the level indicating the previous dural tear and it states that L5-S1 facets were found partly damaged and surrounded by scar tissue.16. Now it is necessary to advert to the evidence of both P.Ws. 2 and 3. To a question whether L4-L5 level was operated upon, P.W. 3 answered there was no evidence of desectomy at L4-L5 level. He further added the X-ray did not reveal any evidence of nibbling of lower border of L4 lamina. He was challenged in the cross- examination by asking how he could say that L4- L5 was not operated after nine months of the first surgery. He answered, as per MRI findings there is no post operative chances at L4-L5 level. P.W. 3 also states that there was evidence of post- operative fibrosis at L5-S1 level.17. As has already noticed, Exbt. P15 discharge summary and evidence of P.W. 3 are attacked maintaining that the operation notes are not produced and what was produced was only the discharge summary. This according to the learned Counsel for the opposite party will have relevance in appreciating whether the evidence of P.Ws. 2 and 3 and Exbt. P15 are to be accepted. It is urged by the learned Coursel for the opposite parties, the opposite parties have produced the operation notes which describes the whole process of operation and in the given circumstance the case of the opposite party in this regard has to be accepted. Then reliance was sought to be made by the opposite parties on the Exbts. R1 and R2 the treatment records and the operation notes. It was urged by the learned Counsel for the complainant these records cannot be acted upon as according to the learned Counsel these documents are unreliable. He maintained that these documents, particularly the operation notes are fabricated to suit the case of the opposite party. In a case of this nature the standard of proof required is preponderance of probability. It was urged by the learned Counsel for the opposite party that whereas not only that they have produced the operation notes, they have also produced the histopathological record in support of their case. But though P.W. 3 claims to have conducted operation at L4-L5 he has not sent the material for histo pathological report. The learned Counsel for the complainant attacked the acceptability of the histo pathological record maintaining that the same is not a genuine record. The learned Counsel for the opposite party on the other hand sought to maintain, when the credibility of the records is considered the fact that the same were produced at the first instance itself is a factor which would show that the documents are genuine. But learned Counsel for the complainant pointed out that these documents came to be produced after Exbt. P16 notice dated 18.2.1996 and thereafter the complainant had sent Exbt. P17 notice raising allegations to the effect that the opposite parties were negligent in discharging their duty. In para 12 of the Exbt. P16 notice dated 18.2.1996 itself the complainant alleged that the investigation in Madras revealed the Laminactomy claimed to have been conducted by the second opposite party at L4-L5 level at the first opposite party hospital was actually done at L5-S1 level instead of L4-L5 level. This allegation is reiterated in Exbt. P17 paragraph 13. The point urged by the learned Counsel is, the credibility sought to be attached merely because of the production of the case records at the earliest when taken along with the fact that the complainant had made allegations against the opposite party as early as 18.2.1996, those records cannot inspire confidence. It should be noted that though the complainant wanted copy of case sheet, on 24.5.1996 by Exbt. P29 the first opposite party took the stand that they are not liable to provide copy of case sheet.18. Even according to the opposite parties laminactomy was conducted at L5. As per the evidence of P.W. 3 it sought to be at L4-L5 level for conducting disecotomy at L4-L5. But the case of the opposite party is that laminactomy at L5 was conducted because of the features in Exbt. P2, MRI scan report showed there was degenerative changes at L5-S1, laminactomy at L5 was done to see both L5-S1 as well as L4-L5. Reliance was made by the learned Counsel for the opposite party on the evidence of R.Ws. 4 and 5 in this regard. R. W. 5 of course would state that in the given case the laminactomy at L5 is the method to be adopted. The learned Counsel for the complainant relied on pages 3290 and 3291 Campbell’s Operative Orthopaedics whereby a diagram the author shows, where there is ruptured disc between L3 and L4 with compression of the fourth nerve root, the same is indicative of L3 L4 disc herniation root compression at L4 and ruptured disc between L4 and L5 would cause L5 root compression. At page 3291 of the said volume it is stated “unilateral disc herniation between L3 and L4 usually compresses the fourth lumbar root as it crosses the disc before existing at the L4 intervertibral foramen... Unilateral disc herniation between L4 and L5 results in compression of the fifth lumbar root”. On the other hand the learned Counsel for the opposite parties would maintain that it is open to a surgeon who notices features calling process mentioned in the operation notes, he adopts the said procedure by conducting laminactomy at L5.19. As has already noticed what .is of paramount importance is whether the records produced would persuade a conclusion that opposite parties 1 and 2 after conducting laminactomy at L5, as a matter of fact adopted the process and conducted disecotomy at L4-L5 level. It is necessary to look into the operation notes.20. In Exbt. P4 the diagnosis states, L4-L5 disc herniation; not responding the conservative treatment, and the summary starts by stating laminactomy and disecotomy done on 25.2.1995 etc. According to the said statement the laminactomy and disecotomy were performed at L4-L5. But the operation notes states, laminactomy at L5 and disecotomy L4-L5. The operation notes states that laminactomy of L5 done, widened the interlaminar space between L4 and L5 by nibbling the lower border of L4 and states that L4 root on left side appearance stretched over a building L4-L5 disc and then adds that retracted the L4 root medially, cleared the surface of L4-L5 disc, and L5 root also was stretched by caudal migration of prolapse. Now as to this aspect P.W. 3 was asked he said, if laminactomy at L4 is done, usually L5 nerve root would be reached. It is the case of the opposite parties that by adopting the said process the lower border L4 was nibbled. P.W. 3 said that the X-ray did not reveal any evidence of nibbling of the lower border of L4 lamina. He also said that pre-operative Exbt. P1 indicates L5-S1 disc prolapse and post-operative MRI, Exbt. P6 indicated post-operative fibrosis at L5-S1 level. To a direct question whether from Ext. P6 he could say disecotomy was conducted at L4-L5 level, he answered in the negative and stated that there was no evidence to support that disecotomy was conducted at L4-L5 level. According to P.W. 3 not only that there was no nibbling of the laminactomy at L4 he is confirm that there was no previous operation at L4-L5 level. When there is post-operation fibrosis at L5-S1 level that would be an indication of previous operation at L5-S1 level. If one is to rely on the evidence of P.Ws. 2 and 3 along with Exbts. P22 and P15 it would be seen that the same would support the complainant’s case.21. But the probative force of the said material is sought to be taken away by showing that if as a matter of fact the surgery was conducted at L4-L5 level as claimed by P.W. 3 a part of the material removed from L4-L5 should have been sent for his to pathological examination whereas the opposite parties have sent a specimen from L4-L5 for his to pathological examination. The fact that P.W. 3 did not send the material for his to pathological examination according to the learned Counsel for the opposite parties, itself would show that the claim made by him that he performed surgery at L4-L5 level is not true. According to the learned Counsel, in this regard the evidence of R.W. 4 and R.W. 5 corroborates the stand of opposite parties. The argument of the learned Counsel for the complainant is the histo pathological report in Exbt. R2 cannot be relied on, and the alleged failure of P.W. 3 to sent it for his to pathological examination cannot and need not show that no such surgery was conducted as claimed by P.W. 3.22. The learned Counsel for the opposite parties relied on the decision of the Maharashtra State Commission reported in Shri S.V. Panchori & Ors. v. Dr. Kaushal Pandey & Ors., I (1999) CPJ 332=1999 (1) CPR 385, in support of his argument that sending the material for his to pathological examination is mandatory. In that case a patient was examined by the opposite party and conducted surgery, but the surgery did not improve his condition but the condition became bad, in the second surgery it was detected he was having cancer. It was the case of the complainant therein, had the sample at the first operation been sent for examination, it would have revealed that the patient suffered from cancer and he could have had an opportunity to treat it at the earliest and could have thus got redressal for his agony and pain. The failure by the first surgeon to send the material as aforesaid indicated was held to be negligence and compensation was awarded. It is true, when at surgery material is removed the same has to be subjected to laboratory test so as to see whether there is any infection of malignancy, but the failure to send it for such examination need not necessarily indicate that no surgery was conducted if otherwise there is material to show that in fact surgery was conducted.23. Though it may not be necessary that all details given in the operation notes should be included in the discharge summary, what has been done must be stated in the discharge summary, atleast in a concise form. Ext. P4 mentions only laminactomy and disecotomy at L4-L5, it does not state the details in the operation note even in a concise form. This along with the other circumstances to which advertence has already been made would support the complainant’s case that at the time of the issue of discharge summary the operation notes was not available. This has relevance when it is noted that, though the complainant wanted the records concerning the surgery the said request was not granted by the first opposite party and to that effect the first opposite party issued Ext. P29.24. In this connection it will be necessary to advert to the effect of the pathology report which of course shows that the specimen received was from disc L4-L5 was received on 25.2.1995. As has noticed, P.W.3 is firm that he did not see any feature of a prior disecotomy at L4-L5. The discharge summary Ext. P15 also is to that effect. The pathological report cannot be considered in isolation. It is pointed out that no fee was collected for the pathological examination and no receipt was issued also. It was submitted by the learned Counsel for the opposite party that the same is included in the theatre charges. In Exbt. P27(b) where theatre charges is collected, though there is a column ‘laboratory’ the said column is left blank. Normally when a particular specimen is sent for laboratory test the fee for the same has to be paid and simply because R.W. 1 says that for service charges are collected, when it is shown that no charge is collected for the particular purpose it cannot be assumed that they have rendered the service which they now claim. R.W. 1 does not state that in such cases the charges for lab test would also be included in the theatre charges. Since the Column regarding lab test is left blank in Exbt. P27(b) as there is nothing to show that the fee for the lab test also was collected, the histo pathological report cannot gain the probative force as is now claimed particularly when the consultant pathologist who issued the certificate is not examined. It is submitted by the learned Counsel for the opposite party that once the operation records and the case records are produced, they need not be individually proved. But when there is a specific dispute as to the genuineness of a particular record, the same should have been proved by the person who issued the same. This is particularly so as P.W. 3 is firm that he did not see any feature of a prior disecotomy at L4-L5 level.25. As has already noted it is also challenged by the opposite party that P.W. 3 conducted the disecotomy at L4-L5. It is in support of the said argument that the learned Counsel pointed out no operation notes is produced by the complainant. Of course P15 discharge summary mentions laminactomy at L4-L5 with spinal fusion and steffe instrumentation done on 14.12.1995. P.W. 3 has sworn as to the surgery conducted by him on L4-L5 level and he said that the disc material at L4-L5 was removed, that it was not a total disecotomy and added nobody usually does that. This deposition of the P.W. 3 has to be appreciated in the context of P15 the discharge summary. The said testimony is corroborated by Exbts. P21 and P22 as well as the evidence of P.W. 2 which showed the condition of L4-L5 at the time when the X-ray as well as MRI were taken prior to the operation by P.W. 3. We do not consider, in the circumstance, that the non- production of the surgery note by the P.W. 3 should affect his evidence. In Exbt. P15, P.W. 3 stated that the spine was stabilised at L4-L15 and L5-S1 levels with steffe pedicle screw. The learned Counsel for the opposite party relying on page 778 of test book of Spinal Surgery by Dr. P.S. Ramani sought to maintain that the said process related to fusion would create complication and hence should not have been adopted by P.W. 3. P.W. 3 was asked as to what was the necessity for a spinal fusion, he said that the same was to achieve lasting and permanent stability and he said, in his judgment, at that time there was no other option. Inspite of the risk involved, if a particular method known to medicine has to be adopted and the same is executed with due diligence, then that cannot be questioned. It was also urged that there is no independent expert on the side of the complainant. That again is a matter to be considered in deciding whether there was negligence taking the needed care with due delegence. The learned Counsel also relied on the evidence of R.W. 6 to maintain that inasmuch as R.W. 6 being none else than the complainant’s husband’s brother’s wife, her evidence to the effect that after the first surgery the condition of the complainant improved has to be given due weight. But her evidence would show that at present relationship of the complainant and the R.W. 6 is not cordial. R.W. 3 said that R.W. 5 was his student and also junior to him in Medical College and R.W. 4 said that R.W. 3 and himself used to have monthly meetings and if there is any problem R.W. 3 would meet him. Now coming to the evidence of P.Ws. 2 and 3; P.W. 2 speaks about his qualification. He says that he is MBBS, MD in Radio Diagnosis; and P.W. 3 is the Professor of Orthopaedics in the Sri Ramachandra Medical College and himself is an MBBS, MS Orthopaedics. Their status as experts in the field cannot be disputed in view of their qualification. If after the surgery at Ramachandra Medical College, the condition of the complainant did not improve or complications developed, then the evidence of P.W. 3 could be stated to have tendency to maintain that the complication or the condition aggravated because of the surgery conducted at the first hospital. No such circumstance exists in this case, it is the case of the complainant that after the treatment at Sri Ramachandra Medical College Hospital her condition improved, and it was pointed out that she was in the Court hall at almost all the postings. Therefore, it cannot be held that P.W. 3 could have tendency to protect himself. When such is the situation P.W. 3 since has the advantage of seeing the patient after the first surgery and seeing the affected area at the surgery, his testimony in the context of Exbts. P21 and P22 will have more persuasive value so as to be accepted. This is particularly so, as he gets corroboration from P.W. 2. In such circumstance since his evidence has to be treated as from an unbiased source, in the context, it gets credibility.26. The opposite party has got another case to the effect that if at all any feature appeared at L4-L5 when she was examined by P.W. 2 and thereafter P.W. 3 conducted surgery, that could be due to recurrence. The learned Counsel made reliance at page 256 of Clinical Neurosurgery by Wilimecand Wilkins, 1999 edition wherein it is stated that “The incidence of symptomatic recurrent lumbar disc herniation is still somewhat difficult to ascertain. Reported incidence requiring re-operation ranges from 1.3 to 21%”. Reliance was also made by the learned Counsel on the decision of the Maharashtra State Commission reported in Nuruddin Kutubuddin Balati v. Dr. L.N. Vora & Anr., I (1995) CPJ 455=1995 (2) CPR 424. A reading of the decision would show that there was material before the Commission to show that the complainant had the tendency of recurrence. The same are narrated at page 446 of the decision. Whether this particular complainant had that feature supporting tendency of recurrence, P.W. 3 was asked, in the instant case whether it was possible for a recurrent prolapse to occur in nine months, he answered in the negative and added that the clinical history; investigation findings in MRIs X-ray and the operative findings do not suggest such a possibility. The evidence of P.W. 3 in this aspect too is acceptable because he had occasion to examine the patient and note the features and also there was the X-ray as well as the MRI scan report. The said argument by the opposite parties cannot be accepted.27. Another point relied on by the learned Counsel for the opposite parties in support of the case that actually disecotomy was performed as L4-L5 is Exbt. R3 X-ray film as well as the photocopy. P.W. 3 was asked whether Exbt. R3 negative and positive relate to the complainant. After examining Exbt. P7, he answered that they do not relate to the complainant. Then it was argued by the learned Counsel for the complainant that the examination of the positive, that is the photograph with the negative would show that the same are not reliable in the context of evidence of R.W. 3. He said that the notings on the plaster was made by him and that after surgery the plaster was attached to the negative, it is done so that X-ray will not be missed. It is pointed out by the learned Counsel for the complainant, if the adhesion of plaster was made as is stated by R.W. 3 that should have found in the photograph, but it is missing in the photograph. Apart from the same in the given circumstance the evidence of P.W. 3 as to this aspect also has to be accepted. The submission by the learned Counsel for the opposite party that the sticker in Exbt. R3 negative was removed at the time of the photograph is not supported by any evidence; nobody speaks.28. The case of the complainant as to negligence in performing the surgery at L4-L5 has to be accepted. We have already pointed out that the complainant’s case as to the dural tear and the leakage of ceribro spinal fluid also stands proved. Consequently this point is found in favour of the complainant.29. Point No. 3:Section 14(1)(d) of the Consumer Protection Act, 1986 would show that compensation can be awarded to a consumer for the injury suffered by the consumer due to the negligence of the opposite party. Therefore, unless injury is caused due to the negligence the consumer may not be eligible for compensation. P.W. 1 has sworn to the fact that after the dural tear and leak she had acute headache and other ailments. We have already found that she had to undergo a second surgery at the Sri Ramachandra Medical College Hospital at Madras and in view of Exbt. P15 and evidence of P.Ws. 2 and 3, the same was occasioned on account of not taking the care and deligence required of opposite parties 2 and 3 who performed the surgery and whose service was availed for consideration. The first opposite party too is vicariously liable. P.W. 3 also has stated in his evidence that having regard to her ailment he has done steffe phate instrumentation, because of that she has only restricted movement and she would also claim that the service of another also is required for her daily life. The second operation entailed expense she must have undergone agony and pain. The complainant has produced Exbts. P25 (1) to (34) hospital bills concerning the expenses. In assessing the compensation, the admitted case of the complainant has to be taken into account. Her affidavit avers, she had made a claim before the Insurance Company which has reimbursed Rs. 29,300/-. The balance expenses towards the operation that she had to undergo at Madras is stated as Rs. 59,180/-. In the affidavit paragraph 16 she narrates her ailments and her requirements, she is unable to bend, lift weight or stand or sit in a particular position for a long time. She says that she has engaged a servant to help her. In the next paragraph she avers that P.W. 3 has also advised her that constant review is required and any mis-placing of screws or plates would necessitate immediate corrective surgery. Having regard to the aforesaid features and also the fact that till she consulted P.W. 3 at Madras and underwent the operation she had to undergo pain and agony cannot be disputed. Taking into account the entire circumstance as revealed, we consider that an amount of Rs. 2,00,000/- inclusive of the expenses already mentioned would be justifiable. Therefore, it is found that the compensation to which the complainant is eligible is Rs. 2,00,000/- (Rs. two lakhs only). Point found accordingly.30. Point No. 4:In view of the findings in the earlier points the opposite parties are jointly and severally directed to pay Rs. 2,00,000/- as compensation to the complainant within three months of the receipt of the copy of this order. If the payment is not made as indicated above, the said amount will carry interest @ 12% from the expiry of the said three months till payment or recovery. The complainant shall be entitled to her costs which we fix at Rs. 5,000/-. Points found accordingly.31. In the result, the opposite parties are jointly and severally directed to pay Rs. 2,00,000/ - (two lakhs) to the complainant within three months of the receipt of the copy of this order failing which the said amount will carry interest @ 12% from the date of expiry of the said three months till payment or recovery. The complainant shall be entitled to her costs at Rs. 5,000/-.
"2001 (2) CPJ 553,"