w w w . L a w y e r S e r v i c e s . i n



M. Anand v/s M/s. Apollo Hospitals Enterprises Limited & Others


Company & Directors' Information:- S V S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TG2007PTC052534

Company & Directors' Information:- D D HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2009PTC073765

Company & Directors' Information:- A AND E HOSPITALS PRIVATE LIMITED [Active] CIN = U85110KL2003PTC016562

Company & Directors' Information:- R R HOSPITALS PRIVATE LIMITED [Active] CIN = U85100HR2011PTC042705

Company & Directors' Information:- K P S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TZ1994PTC004918

Company & Directors' Information:- B R S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN1988PTC016237

Company & Directors' Information:- V H M HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2009PTC073497

Company & Directors' Information:- D B R HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TG2003PTC041648

Company & Directors' Information:- ANAND ENTERPRISES LTD [Active] CIN = U15141WB1981PLC033605

Company & Directors' Information:- S M R HOSPITALS PVT LTD [Strike Off] CIN = U85110DL2005PTC143152

Company & Directors' Information:- M S R HOSPITALS PRIVATE LIMITED [Active] CIN = U85110AP1994PTC017731

Company & Directors' Information:- M M HOSPITALS PRIVATE LIMITED [Under Process of Striking Off] CIN = U85110UP1993PTC015371

Company & Directors' Information:- APOLLO INDIA PRIVATE LIMITED [Active] CIN = U24290DL2012PTC237964

Company & Directors' Information:- K C HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110PB2012PTC035880

Company & Directors' Information:- B M HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2005PTC058062

Company & Directors' Information:- ANAND ENTERPRISES PRIVATE LIMITED [Strike Off] CIN = U74899DL1978PTC008901

Company & Directors' Information:- S A HOSPITALS LIMITED [Strike Off] CIN = U85110MH2002PLC136697

Company & Directors' Information:- M. B. HOSPITALS PRIVATE LIMITED [Active] CIN = U85100HR2010PTC041489

Company & Directors' Information:- M G M I HOSPITALS (INDIA) PRIVATE LIMITED [Active] CIN = U85195KA2010PTC052058

Company & Directors' Information:- M AND D HOSPITALS PRIVATE LIMITED [Active] CIN = U85110DL2002PTC117618

Company & Directors' Information:- APOLLO ENTERPRISES PVT LTD [Strike Off] CIN = U45201DL1978PTC008993

Company & Directors' Information:- M. R. HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110UP1995PTC018165

Company & Directors' Information:- S P HOSPITALS PVT LTD [Strike Off] CIN = U85110HP1992PTC012651

Company & Directors' Information:- V K R HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110TG2011PTC075009

Company & Directors' Information:- C P E C APOLLO PRIVATE LIMITED [Active] CIN = U74999DL2015PTC283774

Company & Directors' Information:- V P HOSPITALS PRIVATE LIMITED [Active] CIN = U85110DL2011PTC220548

Company & Directors' Information:- G S HOSPITALS PRIVATE LIMITED [Active] CIN = U85100AP2014PTC094902

    C.C.No. 38 of 2005

    Decided On, 06 April 2018

    At, Tamil Nadu State Consumer Disputes Redressal Commission Chennai

    By, THE HONOURABLE DR. JUSTICE S. TAMILVANAN
    By, PRESIDENT & THE HONOURABLE MR. K. BASKARAN
    By, JUDICIAL MEMBER

    For the Complainant: M/s. M.L. Joseph, J.B. Abitha Banu, Advocates. For the Opposite Parties: M/s. K. Krishnamoorthy, S. Arun Prasad, G. Gautham Ram Vittal, Advocates.



Judgment Text

K. Baskaran, Judicial Member

This complaint has been filed by the complainant under section 17 (1) (a) (i) of the Consumer Protection Act, 1986 praying this Commission to direct the opposite parties to pay Rs.2,64,000/- being the cost incurred for the surgery performed in Australia, Rs.82,500/- for medication and loss of pay and local travel, Rs.2,64,000/- towards To and Fro air fare from Melbourne to Chennai and loss of pay for a month etc., and another sum of Rs.15,00,000/- as compensation for mental agony in all Rs.21,10,500/- and also for costs.

1. The gist of the complaint allegations is as follows;- That the complainant approached the 2nd opposite party who is a consultant and neurosurgeon in the Appollo Speciality Hospital owned by the 1st opposite party for his disorder namely excessive sweating over both the palms and sole since birth and subsequently the complainant was admitted in the Appollo Speciality Hospital on 17.04.2003 and the 2nd and 3rd opposite parties who are the specialists in neurology and attached to the Appollo Speciality Hospital diagnosed the disorder suffered by the complainant as Primary Hyperhidrosis and they recommended that the complainant should undergo a surgery called Right Sided Costotransversectomy (T2-T3) and T2-T3 Sympathectomy and the said surgery was done on 18.04.2003 under general Anaesthesia and the complainant was discharged on 21.04.2003 ; that even after the surgery performed and discharged from the hospital, the disorder namely excess sweating in both palms and soles continued and in addition, the complainant suffered pain at the surgery entry side; that the complainant had left for Australia on 09.02.2004 in connection with his employment and during August 2004 he got admitted in a private hospital in Australia where a procedure called Endoscopic Thoracic Sympathectomy surgery was done by one Dr. Chris Hensman on 17.08.2004 and the complainant had spent Australian Dollar 8000 equivalent to Rs.2,64,000/- besides other incidental expenses; that from the doctors who performed the above surgery on the complaint, the complainant came to understand that the opposite parties 2 and 3 who performed the alleged surgery have stated in the discharge summary issued by them that the disorder was solved but on the hand the doctors in Australia during surgery found that sympathetic trunk was intact; that the complainant further came to know from the Australian Doctors that the site of entry was so close to spinal cord to perform alleged surgery and the procedure adopted by the opposite parties was a very old method prevalent during 1950’s and thereafter it was not in use or practice in any part of the world; that thereafter the complainant had gradually got relief from the disorder of excessive sweating in his palms and soles ; that the complainant even apprehended that during the 4 hours long open operation done by the 2nd and 3rd opposite parties, some of his other nerves might have suffered damage and hence there was deficiency in service arising out of medical negligence exhibited by the opposite parties and hence they are liable to pay Rs.21,10,500/- as compensation to the complainant under various heads as prayed for in the complaint.

2. The defence of the opposite parties as could be culled out from the written version filed by the 2nd opposite party and adopted by the other opposite parties is as follows;- That the complainant came to the 1st opposite party’s hospital on 09.03.2003 as an out-patient for a problem of Hyperhidrosis (Excessive sweating) present from childhood and that the complainant had also some other treatment for the same disorder and the 2nd opposite party had explained the various treatment modalities available and their limitations and the 2nd opposite party further advised the complainant to continue with the medical treatment and subsequently the complainant had come back to the 2nd opposite party and informed him that he wanted to go in for a surgery as he was not getting good relief from the medication; that the 2nd opposite party had first performed an unilateral sympathetic block as an out-patient procedure on 12.04.2003 and pursuant thereto the complainant’s both hands became dry and warm and the complainant was informed that it would be a temporary relief and that the symptoms might recur and similarly the complainant came back to the 2nd opposite party and urged him for surgery as the relief did not last long; that the 2nd opposite party had explained the limitations and complications of surgical procedure known as sympathectomy and the complainant was satisfied with the same and he had very good relief with unilateral block the 2nd opposite party had decided to do the different unilateral procedure by dividing the afferent and efferent nerves of the sympathetic ganglion by the posterior approach by doing T2, T3 Costrotransversectomy which is one of the standard and accepted procedures and the said procedure was done on 08.04.2003 and the surgery was uneventful and the complainant showed good results and both the hands of the complainant became dry and warm and the complainant was thereafter discharged from the hospital informing that the Symptoms could recur and advising the complainant to come forward for regular check up; but the complainant did not come for follow-up treatment and that he had not even reported to the hospital for removal of skin clips as advised; that there are several procedures for the treatment of Primary Hyperhidrosis. None of them could be taken as fool proof or without any complications and the procedure namely endoscopic thoracic symphatectomy (ETS) undergone by the complainant in Australia is also not immune to complications or recurrence and in fact its procedure could result in much serious complications and cause long time side effects; that during the procedure performed by the opposite parties 1 to 3 they had not removed the sympathetic nerve and they had only divided the afferent and efferent nerves of the sympathetic ganglion by posterior approach by doing T2, T3 Costortransversectomy on one side only. Hence, there was no medical negligence on the part of the opposite party giving rise to any deficiency in service and hence the complainant is not entitled to the relief as sought for in the complaint and hence the complaint deserves dismissal.

3. The points for consideration are

(1) Whether there was any deficiency in service arising out of medical negligence on the part of the opposite parties?

(2) What relief the complainant is entitled to?

4. Point No.1:- On the side of the complainant, the complainant had filed his proof affidavit and marked Exhibits A1 to A32 and on the side of the opposite parties , 2nd opposite party filed his proof affidavit and Exhibits B1 to B19 were marked on the side of the opposite parties. On the side of the complainant, the complainant himself was examined as P.W-1 before this Commission and his evidence was recorded before this Commission and similarly the 2nd opposite party was examined before this Commission and his deposition was recorded before this Commission.

5. The simple case of the complainant is that he was suffering from a disorder called Primary Hyhperhidrosis i.e., excessive sweating over both palms and soles and hence he had approached the 2nd opposite party for cure and that the 2nd and 3rd opposite parties recommended the procedures called 'Right Sided Costotransversectomy (T2-T3) and T2-T3 Sympathectomy' and accordingly the surgery was done at the Appollo Speciality Hospital , Mount Road, Chennai on 18.04.2003 and the complainant was discharged on 21.04.2003 and in spite of the surgery, the complainant did not get any relief and the problem of excessive sweating continued and thereafter the complainant had gone to Australia on employment and underwent treatment for the same disorder in a private hospital by name, Valley Private Hospital in Victoria, Australia and the doctors in the said Valley Hospital followed the procedure called Endoscopic Thoracic Symphatectomy (ETS) on 17.08.2004 and during that surgery the Australian Doctors noticed that Sympathetic trunk of the complainant was found to be intact and hence the opposite parties did not perform any remedial measures with reference to the Sympathetic trunk and hence under the guise of doing Costotransversectomy Sympathecomy surgery, the opposite party did not perform any surgery at all and hence the complainant could not get any relief from the disorder of excessive sweating and for which he had to again undergo the ordeal of second major surgery in Australia causing monetary loss, physical and mental pain to the complainant and his family members. Hence, the opposite parties are liable to pay to the complainant a sum of Rs.21,10,500/- as compensation under various heads.

6. Per contra, the simple defence of the opposite parties is that they had performed one of the several procedures for curing the disorder called Hyperhidrosis suffered by the complainant and the one chosen by them was 'Right Sided Costotransversectomy (T2-T3) and T2-T3 Sympathectomy' and the same was performed by them explaining the limitations and complications in doing the same to the complainant and that surgery was successfully performed on 18.04.2003 and the complainant was discharged on 21.04.2003 at the request of the patient’s relatives and the complainant was asked to report to the hospital on 28.04.2003 for the removal of clips and that after the surgery the complainant’s disorder namely Hyperhidrosis had resolved and hence there is no question of medical negligence giving rise to any deficiency in service on the part of the opposite party.

7. From the written version and the affidavit of the 2nd opposite party, Dr. P. Natarajan, it comes to be known that the complainant had approached the 2nd opposite party on 09.03.2003 itself as out-patient for treatment to the problem of Hyperhidrosis and that the 2nd opposite party had explained him about the various treatment modalities and their limitations and complications and as the complainant had insisted surgical procedure, the 2nd opposite party had arranged for a unilateral sympathetic block procedure as an out-patient procedure and it was done on 12.04.2003 and pursuant to that the complainant’s both hands became dry and warm and at that time it was informed to the complainant that it would be a temporary relief and that the symptoms might recur and thereafter the complainant again called on the 2nd opposite party doctor saying that the relief did not long last and requested for surgery and at that time the 2nd opposite party had explained in details the limitations and complications of the surgery known as Sympathectomy and that the complainant having been satisfied with the same consented for the surgery and accordingly surgery was performed on 18.04.2003. These pre-surgery events were not denied by the complainant in his proof affidavit and hence we have to hold that the events preceding the surgery as set out by the 2nd opposite party as stated supra that the complainant had approached the 2nd opposite party on 09.03.2003 for treatment as an out-patient for the problem of Hyperhidrosis and that the 2nd opposite party had initially advised the complainant to continue the medications and at the complainant’s request that the medications did not relieve him from the evils of the disorder the 2nd opposite party had arranged for a unilateral Sympathetic block as an out-patient procedure on 12.04.2003 which immediately yielded some relief and at that time also the complainant was informed by the 2nd opposite party that the relief could be temporary one and the symptoms might recur and accordingly after some time the complainant came back to the 2nd opposite party and insisted for the surgery procedure and at that time the 2nd opposite party had explained the limitations and complications and the surgery was performed on the complainant for which the complainant had consented were admitted by the complainant.

8. Hence, we are of the view that the complainant cannot be now heard complaining that he was not apprised of the details of the surgical procedures and its limitations and complications. Hence, it emerges that on being informed of the limitations and complications of the procedure proposed to be performed on the complainant namely 'Right Sided Costotransversectomy (T2-T3) and T2-T3 Sympathecomy' and it was only after the consent of the complainant the said surgery was performed by the 2nd opposite party.

9. The complainant would solely rely upon the letter written by one Dr.Chris Hensman who performed the 2nd procedure on the complainant for the disorder Hyperhidrosis in Australia to one Dr.Maher Luka who referred the complainant for treatment but only a Xerox copy of the same has been marked as Ex A19 in this case for the purpose of proving medical negligence against the opposite parties. Admittedly, this letter was written by one Dr.Chris Hensman to one Dr.Maher Luka and the Xerox copy of the same was marked by the complainant and as such how the complainant came into possession of Ex A19 has not been explained by the complainant. In any event, the opposite parties have neither denied nor admitted the claim of the complainant in respect of the second surgery undergone in a private hospital in Victoria, Australia and hence we have to proceed with this case on the basis of the fact that in spite of the surgery performed by the 2nd opposite party for the disorder Hypherhidrosis on 18.04.2003 in the hospital owned by the 1st opposite party in Chennai, the complainant had to undergo another surgery in a private hospital by name the Valley Private Hospital, Melbourne, Victoria in Australia on 17.08.2004 and a procedure called T2 Sympathetic clipping on the left and a re-do sympathetic clipping on the right was done on the complainant which resolved the disorder Hyperhidrosis.

10. A perusal of Ex A19 would show that T2 Sympathetic clipping on the left and re-do sympathetic clipping on the right was alleged to have been performed on the complainant on 17.08.2004. From this itself we can understand that the 2nd opposite party doctor had done some procedure on the right side sympathetic trunk and that was the reason why the Australian Doctor had performed sympathetic clipping on the left and also re-do sympathetic clipping on the right. Further Ex A19 shows that the complainant had informed the doctor in Australia as if he had undergone a right sided sympathectomy through the posterior approach 18 months ago and the both palms Hyperhidrosis recurred to him. Hence, the very foundation and basis, according to the complainant, for the complainant’s case namely, Ex A19 would support the defence of the opposite parties as stated supra. What the complainant wants to make advantage of the contents of Ex A19 is that in Ex A19, it is mentioned as '2nd and 3rd ribs were then clearly identified. A plural window was opened. The sympathetic trunk was found to be intact. This was then clearly dissected free the clipping of the sympathetic trunk was performed at the neck of the 2nd and third ribs as per standard technique'. Hence, the observation namely Sympathetic trunk was found to be intact, as made by the Dr. Chris Hensman in Ex A19 letter is being caught hold of by the complainant for contending that the 2nd opposite party doctor did not do any corrective measure in the Sympathetic ganglion to stop the Hyperhidrosis and that was the reason why the sympathetic trunk was found intact by the surgeons in Australia.

11. But the simple defence of the opposite parties to this situation is that it is the case of the opposite parties themselves that they had not put any clipping and instead they had only divided the afferent and efferent nerves of the sympathetic ganglion. We find considerable force and acceptance in the contention of the opposite parties in as much it has been specifically pleaded in para 5 of the written version that they had performed a limited unilateral procedure by dividing the afferent and efferent nerves of the sympathetic ganglion by posterior approach by doing Costotransversectomy (T2-T3) and T2-T3 Sympathectomy' which is one of the standard and accepted procedures. Ex A19 does not state that even the afferent and efferent nerves were not divided previously.

12. Further, the complainant is not in a position to show to this Commission that the procedure adopted by the 2nd opposite party namely 'Right Sided Costotransversectomy (T2-T3) and T2-T3 Sympathectomy' was an outdated procedure and that it had its inherent complications and side effects. Further, it is not the case of the complainant that the procedure adopted by the Australian doctor is the only procedure for rectifying/managing the disorder namely Hyperhidrosis. Hence, in this circumstance when the 2nd opposite party who is admittedly a neurosurgeon with number of medical titles to his credit, asserts that there are many procedures for removing the disorder Hyperhidrosis and one chosen by him as stated supra is one of the procedures amongst them and since there is no reason put forward by the complainant as to why the opinion of the 2nd opposite party should not be accepted and further when the complainant is not in a position to cite any medical literature to show that the procedure adopted by the 2nd opposite party was not a proper procedure, we cannot simply reject the option chosen by the 2nd opposite party. Hence, we can hold that there are many procedures for rectifying the disorder Hyperhidrosis suffered by the complainant which included the one adopted by the 2nd opposite party doctor and the other adopted by the Australian doctors.

13. At this juncture, the learned counsel appearing for the opposite party would draw our attention to the Drawbacks of endoscopic thoracic sympathectomy (ETS) through an article presented by one T.A. Ojimba and A.E.P. Cameron of United Kingdom.

Introduction; - 'Endoscopic thoracic sympathectomy (ETS) was first described in 1942 by the English surgeon Hughes, and then independently by Goer and Marr from South Africa in 1944. In 1954 Kux who may have preformed the first operation in 1937) described his experience of more than 1400 procedures. However, ETS remained rare until the introduction of video-endoscopic techniques into other branches of surgery in the 1980s. Since then it has become the preferred method of performing upper dorsal sympathectomy. The original indication for ETS was palmar hyperhidrosis, but more recently the procedure has been performed for symptoms such as facial sweating and blushing. As with open operations, ETS is of only limited benefit in patients, with vascular disorder such as Raynaud’s disease; for axillary sweating, injection of botulinum toxin may be the preferred treatment'.

The mortality and morbidity associated with ETS deserve special consideration for the following reasons. First, the majority of patients undergoing ETS are aged less than 30 years and so may suffer serious social and economic disadvantages for many years as a result of any complications. Second, ETS is viewed by some as a lifestyle' procedure, without clear medical indication and so akin to aesthetic plastic surgery; from such standpoint any complication, is unwarranted and to be greatly deprecated. Third, ETS is often actively sought by patients who have read in the media about the benefits that may accrue from the procedure, such sources rarely report the dangerous complications that may occur. Finally, there is a need to inform other surgeons and anaesthetists of potential difficulties. In experienced hands ETS generally a safe operation that appears straightforward to perform. However, obtaining the required level of skills is not easy and the inexperienced may be lulled into a false sense of security, especially if unaware of pitfalls.

Short-term morbidity: - The most common perioperative complication is pneumothorax, up to 75 per cent of patients have some residual gas in the thorax at the end of the procedure. Although this mostly resolves spontaneously, temporary tube drainage is required in 0.4-2.3 per cent of patients. Of 44 patients having thoracoscopic splanchnicectomy for pain, two needed a drain, but this was an extensive operation involving resection from T 5 to T12. The incidence of tension pneumothorax after surgery is unknown, but fortunately this problem seems rare. The cause of postoperative pneumothorax is usually either direct trauma to the lung at the time of trocar insertion or tearing of an apical adhesion as the lung is depressed. Occasionally apical bullae are seen, it is possible that rupture of a bulla may occur as a consequence of anaesthesia, especially if high inflation pressures are used at the end of the procedure. Prevention involves adequate re-inflation of the lungs at the end of the operation and chest radiography approximately 4 hour later to rule out significant pneumothorax. If present, chest incubation and underwater seal drainage for 24 h should suffice.

Long term morbidity;- By far the commonest problem is compensation sweating ' Some of our patients have stated emphatically that the secretion of sweat has been considerably more profuse in areas not affected by the operation... the remark has been so frequently made that the possibility of compensatory hyper secretion cannot be excluded. This quote from Ross in 1933 demonstrates that compensatory sweating was noted in 86 per cent'. Its distribution varies, in a long-term follow-up from Vienna compensatory sweating affected the foot in 32 per cent, the face in 27 percent and the trunk in 20 per cent, but others have reported the trunk to be the commonest site. When severe, it affects the buttocks and popliteal fossa. Sweating of such severity occurs in 1-2 per cent of patients and is the commonest reason for regretting the operation. Still, the severity and extent of compensatory sweating may change during follows-up with study noting spontaneous improvement in 94 percent of patients within 9 months of ETS. Of those with concomitant pedal hyperhidrosis 40 per cent have a reduction in foot sweating after ETS. A more extensive sympathectomy is commonly believed to lead to increased compensatory sweating although a recent study cast doubt on this. Some authors believe compensatory sweating to be more of a problem after treatment for axillary as opposed to palmar hyperhidrosis.'

14. The learned counsel appearing for the opposite parties would next rely upon the risks ailments literature available in Wikipedia in respect of Endoscopic Thoracic Sympathectomy wherein it has been stated that ETS has both normal risks of surgery such as bleeding and infection, conversion to open chest surgery and several specific risks including permanent and unavoidable alteration of nerve function. Further, the side effects like chronic muscular pain, numbness and weakness of limbs, horner’s syndrome, anhidrosis (inability to sweat), Hyperthermia ( exacerbated by anhidrosis and systemic thermoregulatory disfunction), neuralgia, paraesthesia, fatigue and amotivationality, breathing difficulties, substantially diminished physiological / chemical reaction to internal and environmental experience. In the same page in the Wikipedia it is stated as follows; - In 2003, the ETS was banned in its birth place, Sweden due to overwhelming complaints by disabled patients. Taiwanese health authorities banned the procedure on people under 20 years of age. In other countries, including the United States of America, it is a notoriously unregulated procedure.

15. The learned counsel for the complainant would rely upon the journal Surgery Times which contained an article written by one Dr.Arun Prasad, Senior Consultant in Apollo Hospital, New Delhi, India. In this article, it is explained as what is Hyperhidrosis and its forms and patient education and investigating person Hyperhidrosis and medical care. Regarding the treatment for the same it is sated that in addition to the pharamaligic therapy, other treatment includes surgical sympathectomy, surgical excision of the affected areas, and subcutaneous liposuction. It is further mentioned that Sympathectomy has been used as a permanent effective treatment since 1920. Usually, it is reserved for the final treatment option; sympathectomy involved the surgical detractors of the ganglia responsible for hyperhidrosis. The sympathetic nervous system controls only sweating and does not affect touching or muscle function. Thus clamping the sympathetic nervous system does not lead to numbness or paralysis. Two surgical approaches are available. (1) an open approach and (2) a newer thoracescopic /ETS Endoscopic thoracic sympathectomy. It is further stated that the techniques of open surgical access to the upper thoracic sympathetic chain are multiple but they all share the drawbacks of being major surgical procedures with considerable risk of complications and sizable scars. There has therefore been an understandable reluctance of both doctors and patients to adopt this method in the treatment of hyperhidrosis. Thoracic surgeons utilize the following surgical approaches. 1) Transthoracic approach (large open chest incision, (2) Transaxillary (through the armpits with a open incision) and (3) Anterior transathoraicic (through the front of the chest with a large incision). Recently, the endoscopic approach has become favoured because of its improvements in terms of complications, surgical scars and surgical times. Complications are also possible with these ETS option.

16. From the literature cited above, it can be seen that the open approach is old one and ETS is newer one. Even though the open approach procedure was an old one still it has not been banned in any of the countries like what happened to ETS in countries like Sweden (its birth place) and Taiwan. Hence, we have to hold that two options were available before the 2nd opposite party doctor for treating the complainant’s disorder namely Hyperhidrosis and the 2nd opposite party had chosen open approach which is not in dispute and that because of the procedure adopted by the 2nd opposite party the complainant was not put to any harm physical and mental except the allegation of presence of the scar at the entry point on the back. Except the alleged grievance that the disorder namely excessive sweating was not arrested in spite of surgery performed by the 2nd opposite party the complainant could not list out any other post-operative complications he was subjected to. Hence, in fine, we can hold that the complainant can have the only grievance that in spite of having undergone a open surgery performed by the 2nd opposite party in the hospital of the 1st opposite party after spending huge amount he could not get rid of from the disorder namely excessive sweating and nothing more.

17. With this factual background, we have to proceed to decide the dispute in the light of judicial pronouncement as to whether the act of the 2nd opposite party in adopting the open surgery and the alleged omission to adopt the ETS procedure would amount to medical negligence or not. We have plethora of decisions on this point. The followings are some case-laws on this point.

(1) In 2003 (1) CPR 238 (NC), The Hon’ble National Consumer Disputes Redresssl Commission, New Delhi, in the case of Mrs. Kiran Bala Rout – Vs – Christian Medical College & Hospital & Ors has held as follows;-

'It is now well established that where the Doctors have two options and they exercise one this cannot be described to be a negligence, unless the other party is able to prove that the option exercised by the Doctor was palpably wrong. There is no evidence to the contrary and in his cross-examination Dr. John was able to bring enough material in his support. In the absence of any material or evidence to the contrary we find no negligence on the part of the respondent-2 in this regard. '

2) In another decision, reported in (2010) 15 Supreme Court Cases, 193, the Hon’ble Supreme Court of India, in the case of Senthil Scan Centre – Vs – Shanthi Sridharan and Another has quoted with approval the observation made in (2009) 3 SCC 1 – in Martin F.D.Souza – Vs – Mohd. Ishfaq on the point of medical negligence regarding diagnosing or treatment on the part of a Doctor, as follows;-

'In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other profes

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sional men…. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care….' 18. From the above, it emerges that the 2nd opposite party doctor had chosen one of the two options available before him in the matter of treatment given to the complainant for rectifying the disorder namely Hyperhidrosis. As already stated the procedure followed by the 2nd opposite party doctor did not result in post-operative complications to the complainant except that it did not yield desirable result which limitation was informed to the complainant before the procedure was done by the 2nd opposite party. Hence, the acts of the 2nd opposite party would not amount to medical negligence. 19. Perusal of materials on record would show that the complainant was operated upon on 18.04.2003 and discharged on 21.04.2003. The complainant had left India for Australia on 09.02.2004 and he had not reported before the opposite parties complaining that in spite of the surgery undergone by him at the hands of the 2nd opposite party his ailment/disorder of excessive sweating had not abated. The reason given for the said failure at para No.8 of the complaint is also not acceptable. Hence, it shows that the complainant got some relief after surgery done by the 2nd opposite party and thereafter the problem recurred. 20. Admittedly, the 2nd opposite party is a senior consultant in the Neurology Department of the Speciality Hospital and he would claim that he had performed the procedure with utmost care and caution. He had also elaborately dealt with the procedure adopted by him in respect of the complainant. But, except the letter Ex A19 purported to have been written by one doctor/surgeon in Australia to another surgeon in the same country wherein the former had described the procedure adopted by him in doing ETS on the complainant, the complainant had not adduced any evidence in the form of expert opinion to rebut the claim of the 2nd opposite party that he had exhibited due care and caution and the skill in the treatment provided to the complainant. We are of the view, that it is a fit case where expert opinion is needed in as much there is assertion by one doctor namely the 2nd opposite party that he had rightly opted for the procedure performed by him and there was no post-operative complications resulting to the complainant and hence we do not find any reason or ground to brush aside the defence of the 2nd opposite party in the matter of treatment adopted by him. 21. In the light of the discussion held above, we hold that there was no deficiency in service on the part of the opposite parties and accordingly we answer this point in the negative. 22. Point No.2: While answering point No.1, we have held that the opposite parties are not guilty of deficiency in service and as such the complainant is not entitled to any relief as prayed for in the complaint and this point is answered accordingly. 23. In the result, the complaint is dismissed. No order as to costs.
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