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Richa Verma v/s Post Graduate Institute of Medical & Education Research, PGIMER, through its Director & Another

    Appeal No. 7 of 2020

    Decided On, 08 November 2021

    At, Union Territory Consumer Disputes Redressal Commission UT Chandigarh

    By, MEMBER

    For the Appellant: Pankaj Chandgothia, Advocate. For the Respondents: Gaurav Bhardwaj, Advocate.

Judgment Text

Rajesh K. Arya, Member

This appeal has been filed by the complainant (Richa Verma) (appellant herein) against order dated 16.10.2019 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (now District Consumer Disputes Redressal Commission-II, U.T., Chandigarh) [in short ‘District Commission’] vide which her consumer complaint No.148 of 2017 was dismissed by the District Commission on the ground that the complainant miserably failed to establish her case of medical negligence on the part of the opposite parties.

2. It was the case of the appellant before the District Commission that she suffered from moderate hearing loss in her ears for which, she visited the opposite party Institute and got herself tested vide report dated 28.4.2014. As per advice of the opposite parties, she was operated upon to correct the hearing loss in left ear and it was represented to be a minor operation. The operation was claimed to be successful, but instead of any improvement, the complainant started feeling dizziness and vomiting after operation and when the matter was reported to the opposite parties, it was told to be a temporary problem and convinced that she would be OK within a few days. After the operation, instead of any improvement, it resulted in more hearing loss as clear from reports dated 14.7.2014. When the Opposite Parties were confronted about further hearing loss, they assured that it would be corrected by another minor operation. The opposite parties tried to explain that the “Piston” of the ear might had fallen from its place, which was creating the problem and a minor operation was required to put it in place, which was conducted on 12.11.2014 but that too did not make any improvement. Inspite of repeated surgeries by the opposite parties, the complainant continued to suffer and the situation had become even worse than it was earlier and before the first surgery. It was stated that during the first operation by the opposite parties, the ear fluid might have leaked and some damage might have been caused to the nerves therein, as a result, the complainant had severe episodes of dizziness and vomiting soon thereafter. It was further stated that despite another operation, the opposite parties could not rectify their negligence committed earlier as the ear fluid had been lost and the piston had been misplaced.

3. On the other hand, while contesting the complaint, the opposite parties stated that the complainant got PTA (Pure Tone Audiometry) conducted on 14.2.2013, which showed approximately 45 DB mixed hearing loss at speech frequencies (Mixed Hearing Loss: Nerve involvement). The PTA was repeated, which showed only conductive hearing loss and is contradicted to Annexures C-1 & C-2. It was further stated that after more than one year, the PTA was repeated at PGI on 28.4.2014 showing 65 DB Mixed hearing loss at speech frequencies (Ann.C-3). The Two PTA showed that the complainant was having a progressive hearing loss, which increased from 45 DB to 60 DB at the time of presentation to PGIMER, Chandigarh. It was denied that exploratomy tympanotomy was a minor operation. It was further denied that hearing had worsened after the surgery because as per the annexure on page 35, the complainant had improvement in hearing on the table as committed by the complainant during the surgery and the Transient Vertigo for two days happens in all cases following this operation and hence cannot be treated as complication. It was further stated that as per operative notes, the complainant had improvement on the table and further re-exploration confirmed that surgical procedure was good and the piston was in position; some granulations were seen in middle ear which could be because of reaction to Teflon (piston). It was further stated that appropriate measures to treat were taken.

4. The parties led evidence in support of their case.

5. After hearing arguments of the parties and going through the record, the District Commission dismissed the complaint, as stated above.

6. We have already heard the Counsel for the parties and have also gone through the record and written arguments of the appellant carefully.

7. The order of the District Commission has been assailed by the appellant/complainant on the ground that expert opinion on the face of it is biased and designed to protect a colleague doctor. It has been stated that the medical board just say in one word YES to the question of the doctor taking standard care and action. It has further been stated that the medical board admits that no consent was taken for the second surgery as the same is always taken on a separate form and not written on the OPD card. The consent taken for the first surgery was only for Exploratory Tympanatomy and not for Stapedotomy and also not for the revision middle ear surgery. It was further stated that the entire fact-sheet and records go to prove that the doctor carried out the treatment and surgeries in the most casual and negligent manner, causing further loss of hearing in the left ear to the extent of 100% and even the second surgery could not improve the negligence conducted in the first surgery.

8. On the other hand, Counsel for the respondents argued that the District Commission rightly dismissed the complaint of the appellant on the basis of material available on record and also in view of expert medical opinion, which was obtained during the pendency of the complaint on the application moved by the complainant. He argued that the treatment given to the complainant by the respondents was in accordance with the accepted medical standards and norms.

9. Simply stating, it is case, where the appellant/complainant has leveled allegations of medical negligence on the part of the respondents/opposite parties in treating her ears and operations conducted. First of all, we may state here that there are several elements that a complainant/consumer in a medical malpractice case must prove in order to allege medical negligence and claim compensation. The major element of a medical malpractice case is the hardest to prove. The complainant must show that the treating Doctor was negligent because he failed to provide the same level of care that another doctor would have provided in a similar situation. To put it simply, the complainant must show that the doctor, nurse, or other medical professional made a medical mistake that another competent provider in the same role would not have made under those circumstances. Proving negligence is not enough to win a medical malpractice case. The victim must also prove that the healthcare provider’s negligence directly led to their injuries. These elements must be proven by a preponderance of evidence. To further comprehend the scope of negligence, it is important to understand the scope of the duty imposed on a doctor or medical practitioner. A doctor or other medical practitioner, among others, has a duty of care in deciding whether to undertake the case or not, duty in deciding what treatment to give, duty of care in administration of that treatment, duty not to undertake any procedure beyond his or her control, and it is expected that the practitioner will bring a reasonable degree of skill and knowledge and will exercise a reasonable degree of care. Negligence, simply put, is a breach of duty of care resulting in injury or damage.

10. In the instant case, the main element, which is needed to prove medical negligence on the part of the opposite parties is lacking. There is nothing on record to show that the doctor, who treated the complainant, did not pursue the right course of treatment, which was required of him and wrongly conducted the curative surgery for the second time. While dealing with medical negligence cases, the opinions of the medical experts are often called for from both sides. In Martin F. D'Souza v. Mohd. Ishfaq (2009) 3 SCC 1 = (1) 2009 CPJ 32 (SC), necessity of medical opinion was observed to be mandatory even for civil cases. Here also, during the pendency of complaint, on moving an application by the complainant for getting expert medical opinion, the matter was referred to The Director/Principal, Govt. Medical College & Hospital, Sector 32, Chandigarh. Detailed expert opinion/report dated 12.12.2018 was submitted by the Medical Board, as extracted in the impugned order by the District Commission, as per which, the treatment given to the complainant (Ms. Richa Verma) was as per medical norms and as per diagnosis mentioned in the record, right treatment was given to her. We also do not find any breach of duty of care on the part of the opposite parties resulting in injury or damage to the complainant. In case involving medical negligence, at the beginning, the person alleging the negligence has the initial onus to make out a case of negligence and thereafter the onus shifts on to the doctor or the hospital to satisfy that there was no lack of care or diligence. In the case in hand, the complainant miserably failed to make out any case of medical negligence on the part of the opposite parties and on the other hand, the opposite parties fully succeeded in establishing that there was no lack of care or diligence on the part of the hospital as well as treating doctor. The treatment was given to the complainant as per accepted medical standards. However, it must be remembered that sometimes despite their best efforts the treatment of a doctor fails but that does not mean that the doctor or the surgeon must be held to be guilty of medical negligence unless there is some strong evidence to suggest the same, as is lacking in the instant case. As regards the submission that no consent was obtained for the second surgery, it may be stated here that it was never the case of the complainant before the District Commission and is an afterthought, when the expert medical report came in favour of the opposite parties. The expert medical opinion is given by a team of highly qualified doctors, who are master of their field and in this view of the matter, the lame grounds taken against the medical standard practice cannot be entertained. The law on the subject is well established and beyond discussion. In Jacob Mathew v. State of Punjab (2005) 6 SCC 1, the Hon’ble Supreme Court in this case had observed in Para 28, inter-alia, that “28. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally…..”. Further, in the case of Kusum Sharma & others Vs. Batra Hospital & Medical Research Centre & others, 2010 (2) CLT 282, the Hon’ble Supreme Court held that ‘negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability with due care and caution. In Martin F. D. ‘Souza’s case (supra), the Hon’ble Supreme Court held in Para 41 that “A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a

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reasonably competent practitioner in his field.” Further in Para 124, the Hon’ble Supreme Court held that “It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.” 11. In view of above facts and circumstances of the case and the law settled on the subject by Hon’ble Supreme Court of India, it is held that the District Commission, finding no medical negligence on the part of the opposite parties on the basis of evidence available on record and particularly, in view of expert medical opinion, rightly dismissed the complaint of the complainant. 12. For the reasons recorded above, it is held that the order passed by District Commission-II dismissing the consumer complaint did not need any interference and as such, is upheld. Resultantly, this appeal, being devoid of merit, stands dismissed with no order as to costs. 13. Certified copies of this order be sent to the parties, free of charge. 14. The file be consigned to Record Room after completion.