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    F.A.No. 785 of 2013 Against C.C.No. 212 of 2005 District Consumer Forum.II, Vijayawada

    Decided On, 10 December 2013

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, THE HONOURABLE MR. R. LAKSHMINARASIMHA RAO
    By, INCHARGE PRESIDENT & THE HONOURABLE MR. S. BHUJANGA RAO
    By, MEMBER

    For the Appellants: Mrs. A. Anasuya, Advocate. For the Respondent: Party in Person.



Judgment Text

Oral Order: (R. Lakshminarsimha Rao, Incharge President)

1. The opposite parties are the appellants. They have filed the appeal in challenge to the order of the District Forum whereby they were held to have committed medical negligence and were directed to pay an amount of Rs.3,00,000/- towards compensation with interest @ 9% per annum. The appellants were also directed to pay an amount of Rs.5,000/. towards costs.

2. The facts of the case leading to filing of the appeal as seen from the complaint are that the respondent who was under treatment of Dr.Narendra Babu for her back pain since 8.08.2003 consulted the second appellant on 13.05.2004 at the first appellant hospital. After examining the respondent and having gone through reports and prescriptions of Dr.Narendra Babu, the second appellant informed the respondent that surgery is immediately required to be performed upon the respondent else her limbs would be paralyzed. On the same day at 11 a.m. the respondent was admitted to the first appellant hospital and after due payments were made, certain tests were conducted on 17.05.2004 and the respondent’s spine was operated upon. The anesthetist and the second appellant informed the respondent’s husband that she would recover soon. The respondent was discharged on 26.05.2004. The second appellant prescribed medicines and advised for spinal exercise. The pain has not subsided. The respondent began to suffer from fever. The respondent’s husband consulted the second appellant on 1.06.2004, 11.06.2004,17.06.2004, 23.06.2004.

3. The respondent was admitted to the first appellant hospital on 14.07.2004, with symptoms of regular fever, dehydration, loss of appetite and general weakness. The second appellant had put the respondent on I.V.fluids and got certain tests conducted. The respondent’s husband informed the second appellant on 19.07.2004 that their daughter suffered from spinal TB, the second appellant handed over, a bony piece removed when surgery was conducted upon the spine of the respondent, to the respondent’s husband with an advice for biopsy to be done at Amba Diagnostics. The respondent was suffering from unbearable pain. The second appellant called in Dr.Radhika Reddy who after examining the respondent discussed the matter with the second appellant who in turn informed the respondent’s husband that she was suffering from mental depression whereby she has been under the impression that she felt pain. The respondent was discharged on 22.07.2004.

4. The respondent consulted the second appellant again on 22.07.2004 with the same intensity of pain and the second appellant advised her to consult psychiatrist and physician and he advised for use of traction. The respondent on the advice of Dr.Meher Prasad, physician, was admitted to Dr.Samaram’s hospital and she was under his treatment. As per the advice of the second appellant, traction was applied and at the time the respondent developed swelling on her spine with pain, burning sensation, discomfort and gnawing pain form waist downwards. The dermatologist, Dr.Deeksha prescribed medicine for the scaly appearance of the skin due to prolonged bedridden condition. The respondent was discharged on 30.09.2004 with suggestion to go back to neurosurgeon as the treatment administered was to bring the fever under control. On 9.10.2004 the second appellant pierced the swelling with needle and informed the respondent that there was no pus and the swelling developed due to sand bag traction.

5. The second appellant questioned the respondent’s husband on 20.10.2004 as to why the respondent was not taken to Dr.Radhika Reddy and advised him to admit her in the psychiatrist’s clinic and that he should not come to him without consulting the psychiatrist as also if they cannot afford treatment in the psychiatrist’s clinic, he would advise the psychiatrist to refer the respondent to a government psychiatric hospital. With no change in her condition the respondent again approached the second appellant on 12.12.2004 at the first appellant hospital where the blood test was conducted and the second appellant prescribed medicines and as there was no relief from pain, the respondent again approached the second appellant on 4.01.2005 whereon the second appellant refused to administer treatment stating that until they approach the psychiatrist for treatment for mental depression, he would not continue treatment.

6. On 14.01.2005 the respondent consulted the physician Dr.Radha Krishna Murthy who diagnosed her with ‘cold abscesses caused due to tuberculosis of spine. Dr.Shankar Rao drained the puss out. The respondent got some relief after the puss was drained out. Dr. Shankar Rao referred the respondent to NIMS, Hyderabad on 20.1.2005 and before proceeding to NIMS, the respondent’s husband sought for the cause and the second appellant refused to show any cause for the patient’s condition. At NIMS, the respondent was diagnosed with tuberculosis of spine and she is still undergoing treatment.

7. The second appellant’s haste in performing the surgery without conducting the relevant tests and his subsequent inability and failure to diagnose the cause of persistent and increasing pain for a prolonged period of nine months and his brushing aside the pain felt by the respondent constitutes deficiency in service on the part of the appellants. The respondent sought for direction to the appellants to pay an amount of Rs.3,00,000/- towards the medical expenditure, Rs.5,00,000/- towards compensation for pain and suffering and Rs.20,000/- towards costs.

8. The second appellant resisted the case contending that the respondent had undergone treatment with Dr.P.Nagendra Babu from 8.08.2003 to 12.05.2004 and approached the appellants on 13.05.2004 with complaints of low backache, both legs sciatica (nervous pain). She was suffering with long standing low backache pain for years, she was not improving from medical treatment taken elsewhere till then. The clinical examination findings by the second appellant are that SLR 60 ‘o’ (L) to 60’o’ (R) , (L) EHL 4/5, (L) AJO and the X-ray findings has shown abnormality in the form of abnormal movement at L4 and L5. The MRI has shown that there was nerve root compression ,'LISTHESIS' at L4 and L5. The second appellant advised the respondent for surgery.

9. The respondent was admitted to the first appellant hospital after her being explained of the clinical examination findings by the second appellant. The respondent has undergone surgery whereof L4 and L5 laminectomy was done followed by total removal of L4.L5. L5.S1 of prolapsed discs were done and as the Listhesis was fixed and confirmed during surgery, fusion was not done. Operation procedure was successful and the respondent was given ICU care. The post-operative wound healed well. The respondent was discharged on 26.05.2004 from the appellant hospital. There was no haste on the part of the second appellant in performing the surgery. After thorough clinical examination and MRI evaluation by the second appellant, the respondent was advised for surgery as the benefit was on higher side for the respondent to undergo surgery.

10. The respondent’s husband did not visit the appellants on 11.06.2005, 17.06.2005 and 23.06.2005. The respondent was admitted to the first appellant hospital on 1407.2004 with the complaints of Lower Backache, loss of appetite for two weeks and general weakness. On clinical examination of the respondent, it was found that there was no temperature, B.P. and pulse were normal and no any infection at the operation site. The blood test and liver test reports revealed normal values. X-ray of the lumbar region, i.e., did not reveal any abnormality. The respondent was given medical treatment, psychotherapy and vitamins. On the respondent’s informing the second appellant that his daughter suffered from spinal TB, the second appellant advised for biopsy of the disc material that was removed at the time of operation on 17.05.2004. The report of Amba Diagnostic Centre revealed that there was no spinal TB or KOCH SPINE at the operated site. The respondent was neurologically stable without any complaint that appeared during the preoperative stage. The operative area was well healed and the complaint appeared psychiatric warranting consultation of psychiatrist. The psychiatrist opined that the respondent was suffering from mental depression. On 22.07.2004 the respondent was discharged in comfortable and fit general condition.

11. The second appellant has not advised the respondent to consult Dr.Meher Prasad and Dr.Deeksha. On 9.10.2004 the respondent approached the second appellant. The swelling at the spine was no way related to the surgery. Needling done revealed no abnormality. The second appellant prescribed medicines for her complaint and advised for treatment under Dr.Radhika Reddy. The second appellant has not told the respondent that the swelling was due to the traction. On 12.12.2004 after a lapse of seven months of surgery, the respondent approached the second appellant and on clinical examination of the patient, the second appellant found no complaints that existed during preoperative stage except the psychiatric complaints. The second appellant has not refused to continue the treatment.

12. The spot is no way related to surgery or operated area of the respondent. The diagnosis as ‘cold abscess’ is non pyogenic and not a post-operative complication. TB Spine abscess is per se not a post-operative complication and it is prone to develop at any time and in patients under malnutrition. The second appellant is a person of committed treatment and professor of fifteen years’ experience and a post graduate from AIIMS, New Delhi. He operated thousands of patients successfully and known for honesty, commitment and integrity. The diagnosis of TB of spine does not relate to either to the operated area or to the surgery conducted by the second appellant. The respondent has no agonizing neurological problems after the surgery was conducted by the second appellant. The second appellant has not charged Rs.36,000/- towards inpatient expenditure from the respondent. There were no post-operative complications. There was no deficiency in service on the part of the appellants.

13. On behalf of the respondent she was examined as PW1 and her husband as PW2 and Dr.G.Megharoop and Dr.Ch.Bangaru Rao, Dr.Rama Devi and Dr.N.Satyanarayana examined as PWs3 to 6. Exs.A1 to A60 have been marked. On behalf of the opposite parties, the second appellant was examined as RW1 and Smt B.Radhika Reddy as RW2. Ex.B1 was marked.

14. The District Forum has allowed the complaint on the premise that the second appellant did not follow the standard procedure prescribed for the treatment of a patient like the respondent and he did not subject her to Montaux test. The District forum has opined that the second appellant failed to advise for proper and necessary tests. Aggrieved by the order of the District Forum, the opposite parties no.1 and 2 filed appeal in F.A.No.1210 of 2009 which was allowed by this Commission by setting aside the order of the District Forum and this Commission gave liberty to both the parties to adduce evidence.

15. After the matter was remitted back to the Disrict Forum, the complainant examined Dr.Siva Sankar Rao PW7, Dr.Radha Krishna Murthy PW8, Dr.A.K.Purohit PW9 and Dr.T.Rajeswar Rao PW10. The opposite parties had not examined any further witnesses.

16. The District Forum allowed the complaint on the premise that the second appellant made a pseudo attempt by sending the avascular disk piece for testing for koch’s spine and thereby prevented the respondents’ husband from making any further request for test to rule out possibility of tuberculosis and awarded a sum of Rs.3 lakhs with interest @ 9% per annum towards compensation and Rs.10,000/- towards costs.

17. Aggrieved by the order of the District Forum the opposite parties have filed the appeal contending that the District Forum erred in giving finding that the respondent is entitled to compensation even after holding that the second appellant performed laminectomy not in haste and there was no deficiency in service on his part in conducting surgery.

18. It is contended that the respondent was under treatment with the second appellant from 17.5.2004 to 26.5.2004 and from 19.7.2004 to 27.7.2004 during which period there is no evidence that she developed Koch’s spine and that the District Forum ought to have observed that the respondent approached different doctors from 9.9.2004 on her own accord and she was subjected to traction and the other treatment for which second appellant cannot be held responsible.

19. It is contended that the respondent developed swelling when she was subjected to traction by other doctors and the treatment given at NIMS to her is empirical treatment which is a treatment given for any infection without conformational diagnoses and on the mere suspicion of the respondent, the District Forum came to an erroneous conclusion that the respondent developed tuberculosis and the second appellant failed to detect the disease subsequent to surgery. It is contended that the District Forum failed to consider the evidence of PW9 and the MRI reports.

20. The counsel for both the parties have filed their respective written arguments.

21. The points for consideration are:

1) Whether there was any deficiency in service on the part of the appellants in administering the treatment to the respondent from the time she was admitted to appellant no.1 hospital?

2) To what relief?

22. POINT NO.1 The respondent was under treatment of Orthopedic Surgeon Dr.Narendra Babu before she approached the appellants. The respondent was under the treatment of Dr.Narendra Babu from 7.8.2003 to 12.5.2004. The respondent approached the first appellant hospital on 8.8.2003 and she consulted the second appellant at the first appellant’s hospital. The second appellant advised for investigation such as X-ray, LS spine, on 8.8.2003.

23. The learned counsel for the appellants has submitted that i) the appellant no.2 diagnosed the pain of the respondent as nerve compression basing on his clinical observation and that of Dr.Narendra Babu who previously treated the respondent as also on the reports. ii) the respondent has not proved that she was suffering from spinal TB as on the date of operation, iii) after the operation the respondent had no high temperature, No high Blood Pressure and no infection at the operation site which would have been present had she suffered from TB at the time, iv)the respondent did not produce the X-rays and the reports before the District Forum, v) the X-ray had not shown any abnormality or TB in the respondent, vi) as the nerve root compression started in 2003, there is no necessity for fresh MRI and put the respondent to monetary loss, vii) Dr.sahu who actually attended the respondents in NIMS was not examined though he came to the District Forum viii) there are discrepancies between the two discharge summaries filed by the complainant and the opposite parties.

24. Further she has added that the respondent had not filed any appeal against the finding of the District Forum that the second appellant had not conducted surgery in haste and unnecessarily and that there was no deficiency in service on the part of the second appellant in conducting the surgery whether the surgery was conducted in haste or unnecessarily and therefore she had restricted her argument to second visit of the respondent to the appellant hospital subsequent to surgery. She has contended that the respondent’s statement that on the date of examination as witness she was not able to walk is false as she admitted in her cross examination that she does not know the contents of the affidavit.

25. The learned counsel has further submitted that PW2 did not state anything against the conducting of the surgery by the second appellant and as per Exs.A16 to A25 Dr.Maru stated that there was no neurological surgical problem and PW4 who issued Ex.A39 stated that there was no possibility of the respondent contacting tuberculosis. Referring to the evidence of PW5 and PW6 she has contended that they had no personal knowledge about the case or the treatment rendered to the respondent.

26. The learned counsel has submitted that PW7 or the respondent has not produced any material or slip to show that he really aspired puss and Dr.Radhakrishna Murthy PW8 admitted that X-ray scanning and other reports are final to decide any particular disease of a patient and that there is no fixed time period for development of abscess which may form within one day, one weak or one month. Referring to the evidence of PWs9 and 10 she has submitted that they had not supported the claim of the respondent in any manner.

27. The learned counsel for the respondent has contended that the second appellant i) is not competent to treat the disease as was suffering the respondent, ii) relied upon MRI report taken 10 months prior to the date of surgery and did not advise for required tests before taking up the operation, iii) unable to diagnose the cause of persistent backache for nine months iv) he had been lagging behind the other ordinary assiduous members of his profession, v) he has made false statement in his reply to the notice issued on behalf of the respondent, vi)inhumanly brushed aside the respondent’s complaint of persistent backache.

28. Further the learned counsel has submitted that the District Forum observed in para 9 and 15 of its order that the complaint is not filed for deficiency in performing surgery or the need for surgery and there was deficiency in the haste shown to perform surgery without conducting tests including MRI to know if the respondent was suffering from Spinal Tuberculosis or any other ailment and that during subsequent visits the second appellant had not bothered to find the reasons for continuous pain and low backache.

29. She has supported the finding of the District Forum that second appellant made a pseudo attempt by sending the avascular disc piece for testing for Koch’s spine and that the District Forum wrongly mentioned the date of second visit of the respondent to the appellant hospital as 13.5.2004 instead of 14.7.2004. The learned counsel has contended that the District Forum’s observation in para 20 of the orders that the action of the second appellant in sending the removed disc for testing is pseudo service is correct.

30. The learned counsel has contended that the admission of the second appellant in his cross examination that he had not got conducted any test other than those mentioned in Ex.A14 to rule out possibility of spinal TB and that TB can occur in any part of the spine indicates deficiency in service on the part of the appellants. She has submitted that the finding of the District Forum in regard to the ESR supports the case of the respondent. She has submitted that there is no evidence on record of NIMS to show that the doctors there observed that empirical treatment was administered to the respondent. She has referred to the literature particularly the book written by S.N.Tuli in tuberculosis and focused on the tests conducted therefor highlighting the necessity of conducting Mantoux Test.

31. The District Forum allowed the complaint on 14.10.2009 the second appellant failed to advise for fresh MRI of the respondent and he failed to diagnose the disease. The District Forum observed that the evidence of the doctor who treated at NIMS could not be examined since he left abroad. The District Forum held that Dr.Radhakrishna Murthy detected that the respondent was suffering from cold abscess caused due to Tuberculosis and Dr.Shanker Rao relieved of her pain by draining the pus from the infected site.

32. The appeal, F.A.No. 1210 of 2009 preferred by the appellants was allowed by this Commission was remitted back to the District Forum giving opportunity to both parties to adduce evidence in support of their respective cases. This Commission observed that the respondent is required to adduce evidence of Dr.Radhakrishna Murthy, Dr.Shanker Rao and it held that the evidence of Dr.Sahu at NIMS is essential for the respondent to prove her claim.

33. This Commission as submitted by the District Forum before the District Forum had recorded certain conclusive findings and the respondent filed Revision against the order of the District Forum which was dismissed. The findings of this Commission returned in F.A.No.1012 of 2009 thus are conclusive. The National Commission had observed that the District Forum would return its findings uninfluenced by the observations of this Commission.

34. This Commission held that the second appellant had not deviated from the standard protocol in choosing surgery as the proper procedure to be adopted and there was no deficiency in service on the part of the second appellant in the manner in which the surgery was performed upon the respondent as the surgery conducted was successful.

35. This Commission observed that the second appellant ought to have sent the removed disc piece removed from the operated site in the vertebral column of the respondent on17.05.2004, immediately after the surgery was conducted and the aspect has to be considered in the backdrop the medical negligence the respondent attributed to the respondent that owing to failure of the second appellant to diagnose on proper line of treatment, she suffered from tuberculosis.

36. On the complaint being remitted to the District Forum, the respondent examined Dr.Shiva Shankar Rao-PW7, Dr.Radhakrisna Murthy-PW8, Dr.A,K.Purohit-PW9, and Dr.Tejeshwer Rao-PW10. The District Forum held that it passed the order not taking into consideration of the observations of this Commission since this Commission had not confined the scope of enquiry to a particular point and the National Commission in R.P.No. 839 of 2012 permitted it do so.

37. The District Forum passed the order on 28.06.2013 holding that there is no deficiency in service on the part of the second appellant in choosing to perform surgery,.ie. Laminectomy upon the respondent basing on the MRI taken at Soumya Hospital and also the surgery was successful. The District Forum held that the second appellant could have advised the respondent for other test when she was not relived of the pain after the operation was conducted.

38. The District Forum observed that the second appellant failed to note swelling on the back of the respondent in Ex.26 on 25.10.2004 and 4.12.2004 and non-examination of Dr.Sahu of NIMS cannot be counted against the respondent as he successfully avoided to attend the District Forum on the ground of serious illness and addressed a letter to it stating that he had no professional decision making role in the treatment rendered to the respondent at NIMS.

39. The learned counsel for the appellants has submitted that she has restricted the scope of her arguments to the treatment rendered to the respondent by the second appellant at the first appellant-hospital during her second visit as the District Forum held no deficiency in service on the part of the appellants till the respondent approached them for the second time and in view of the respondent accepting the findings of the District Forum by choosing not to file appeal or cross-appeal.

40. The respondent was under treatment of Orthopedic Surgeon Dr.Narendra Babu during the period from 7.8.2003 to 12.5.2004. Dr.Narendra Babu advised the respondent for MRI (spine) which she had undergone in Soumya Hospital on 8.08.2003. Dr.Ramdevi-PW5 deposed that she was with Soumya Hospital in the year,2003 and she had taken the MRI of the respondent. She does not speak about the treatment rendered by Dr.Narendra Babu and she has stated that Dr.Narendra Babu is not alive. The District Forum observed that the exact status of the respondent while undergoing treatment at the hospital of Dr.Narendra Babu is not known and the outpatient record dated 7.08.2003 would reveal her status as on 8.08.2003.

41. The respondent approached the first appellant hospital on 8.8.2003 and she consulted the second appellant at the first appellant’s hospital. The second appellant advised for investigation such as X-ray, LS spine, on 8.8.2003.

42. The contention of the learned counsel for the respondent is that the second appellant had performed uncalled for surgery in haste and without advising for fresh MRI. The learned counsel for the appellants has submitted that the second appellant has taken into consideration of the conservative treatment administered by Dr.Narendra Babu for the period from 7.8.2003 to 12.5.2004 and as there was no relief from pain for the respondent, he came to the conclusion that the line of treatment to be adopted is surgery.

43. The second appellant has stated that he has examined the respondent and having gone through the investigation reports came to the conclusion that surgery was essential to relieve the respondent from the pain. The clinical symptoms were correlated with the reports of the X-ray and MRI.

44. The medical literature on surgical management and the necessity of the surgery throws light on the circumstances where a patient suffering from backache was kept on conservative treatment for over a period of six months. The medical literature indicates that surgery is effective for relief of pain in patients with degenerative spondylolisthesis with spinal stenosis. James N.Weinstein, DO, MS has opined

'Surgery is widely used and has recently been shown to be more effective than non-operative treatment when the results were followed over two years. Questions remain regarding the long-term effects of surgical treatment compared with those of non-operative treatment'.

45. Spondylolisthesis is described as ' a spinal condition that involves the slipping of one spinal vertebra over the one immediately underneath it'... The spine is made up of a series of interconnecting bones called vertebrae. The vertebral column is the main support structure for the body and keeps it upright and balanced. The spinal column consists of 33 bones and is divided into 7 cervical vertebrae which form the upper part of the spine between the skull and the chest, 12 thoracic vertebrae which are found between the upper chest and lower back, 5 lumbar vertebrae which form the lower back, 5 vertebrae fused together form the sacrum and 4 fused vertebrae from the coccyx.

46. According to the author, the Spondylolisthesis can be caused by various conditions and the symptoms are basically similar and include 1. Lower back pain, 2. Stiffness in the back, 3. localized pain or tenderness in the back just above the pelvis, 4. Tight hamstrings, 5. Pain in the thighs and legs (radiculopathy) and 6. pain in the buttocks.

47. The website http;//www.medscape.com provides information that supports that surgery was right and proper choice for a patient like the respondent who did not feel any change in her condition despite undergoing conservative treatment for a period of nine months. It was reported in the Journal of Bone & Joint Surgery (American Volume) as

' Surgery may be effective for pain relief in patients with degenerative spondilolisthesis with spinal stenosis' ' Compared with patients who are treated non-operatively, patients in whom degenerative spondilolisthesis and associated spinal stenosis are treated surgically maintain substantially greater pain relief and improvement in function for four years'. 'The more traditional approaches to the treatment of spondilolisthesis have included posterior surgery, anterior surgery, or combined anterior, posterior referred to as subluxation or in situ treatment of the disorder. There are an assortment of methods that are acceptable for the treatment of spondilolisthesis, which may vary based on the age of the patient, the type of abnormality, and the experience and comfort of the treating surgeon'.48. The learned counsel for the respondent challenged the competence of the second appellant on the premise that he failed to diagnose the TB the respondent was diagnosed with at NIMS. The Hon’ble Supreme Court in several decisions dealt with the situation what the doctor is required to do and what he is expected to do in the given circumstances of the case.

49. In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, the Supreme Court noticed that in the very nature of medical profession, skills differ from doctor to doctor and negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

50. The Supreme Court in Kusum Sharma Vs. Batra Hospital & Medical Research Centre reported in (2010) 3 SCC 480 after considering the entire case law on medical negligence observed :

Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks.

51. In the aforementioned decision, the Apex Court framed the following principles while deciding whether the medical professional is guilty of medical negligence,

I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.52. The Supreme Court held that the line of treatment adopted by a doctor cannot be ordinarily found fault with in the absence of an equally competent medical practitioner’s evidence to the effect that the doctor has deviated from the standard procedure adopted by a doctor of ordinary diligence. In C.P.Sreekumar M.S (Ortho) vs S.Ramanujam in CIVIL APPEAL NO.6168 OF 2008 decided on 1 May, 2009

‘It is also relevant that though the respondent had sought the opinion of Dr. Ajit Yadav of the Tamil Nadu Hospitals on 30th May 1992, he produced no evidence to off.set the appellant's evidence as to why he had chosen hemiarthroplasty over internal fixation. It is qually significant that the respondent had taken the advice of several renowned doctors including Dr. Mohan Das and Dr. Nand Kumar, but none of them in their treatment notes observed adversely about the choice of treatment nor any negligence in the actual operation. In the light of the fact that there is some divergence of opinion as to the proper procedure to be adopted, it cannot be said with certainty that the appellant, Dr. Sreekumar was grossly remiss in going in for hemiarthroplasty. In Jacob Mathew case (supra) it has observed as under:

(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed';

21. It would, thus, be seen that the appellant's decision in choosing hemiarthroplasty with respect to a patient of 42 years of age was not so palpably erroneous or unacceptable as to dub it as a case of professional negligence ‘

53. The X-ray and MRI reports revealed that the respondent was suffering from L.4 and L.5 and L5.S1 prolapsed discs and L4 and L5 Listhesis and incidental haemangioma at D12. The District Forum has rightly observed that the surgery was performed as required by the attending circumstances which are stated as under:

The surgery done was removal of degenerated disks between L4 & L5, L5 & S1 vertebrae. According to the discharge summary and according to the 2nd opposite party the laminectomy was done and fusion was not done. After surgery the complainant visited the opposite party hospital on several days and again she was admitted in the hospital on 14.7.2004. The medical record of S.V.R. Hospital produced by the complainant do not show any complaint till 14.7.2005 as regards low back ache and other complaints she earlier had before surgery. On 14.7.2004 when she came to S.V.R. Hospital, 1st opposite party the complainant was found to have low backache and she was complaining general weakness and loss of appetite for two weeks, she was also having l oose motions by then. She was found to be suffering from dehydration. It appears x -ray was advised again and lumbar traction was also advised. The 2nd opposite party advised the complainant to approach Dr. Radhika Reddy as per the record Ex.A11 dated 14 .7.2004. The complainant was discharged on 22.7.2004 and the discharge summary under Ex.A15 was given. According to Ex.A15 final diagnosis (for that admission) was right facial palsy. Treatment was conservative management. So these documents do not show any complications arising out of surgery conducted by the 2nd opposite party or that surgery is a failure. It is to be noted that the surgery was done because of degenerated disks indenting the calsac and encroaching bilateral neural foram in a compressing nerve roots vide Ex.A4. When those disks are removed the encroachment and compression would naturally disappear and it will be followed by relief from pain and also improvement in lower limb movement. So from the record it cannot be said that there was deficiency in service on the part of the opposite parties in conducting surgery.

54. The appellants established that there was no deviation from the standard medical practice in choosing the surgery as the proper procedure as the respondent did not respond to conservative treatment during the period from 7.08.2003 to 12.05.2004 during which period she had been under the treatment of doctor Narendra Babu. The District Forum has rightly held that there is no deficiency in service on the part of the appellants in regard to the performing of surgery upon the respondent. In fact, there is no dispute relating to the manner in which the operation was conducted or in regard to the care taken and skill exercised by the second appellant during the operative stage.

55. The District Forum observed that there was no necessity of the second appellant to advise for fresh MRI and it referred to haemangioma mentioned in the copy of MRI Lumbar Spine (screening) issued by Soumya Hospital, Vijayawada and referred to the article appeared in 'England law of journal’ relied upon by the learned counsel for the respondent and the District Forum observed as under that there was no necessity for the second appellant to advise the respondent to go for MRI for the second time.

18. The learned counsel for the complainant submits that Ex.A4 refers to suggestive haemangioma and if there is haemangioma it is capable of causing serious problem and it is the duty of the 2nd opposite party to take an MRI but no study of hemangioma. Haemangioma means benign tumour of blood vessels. It often appears on the skin as a type birth mark. The learned counsel for the complainant refers to an article from New England Journal of Medicine’dated 25.8.1994. In the article titled ‘Relief of spinal card compression from vertebralhaemangioma by intralesional injection of absolute ethanol ’, it is mentioned that vertebra lhaemangiomas are relatively common abnormalities, however the neurological symptoms are result from epidural compression of the spinal card by haemangioma, hypertrophied bone,epidural haemorrhage, compression fracture are uncommon . The article refers to report of two patients with myelopathy progressive paraparesis due to vertebral haemangioma who were successfully treated by direct puncture and perfusion of haemangioma with absolute ethanol. If any treatment is intended relating to haemangioma it is necessary to know first if the haemangioma noticed is causing compression of spinal card. Ex.A4 does not says if the haemangioma suggestively noticed at D-12 vertebral body is causing nerve compression. The compression was noticed only at L4 -L5 and S1. Merely because there is haemangioma it cannot be readily said that the 2ndopposite party ought to have taken steps to know further what was the position of that haemangioma as on the date of admission of the complainant in the 1st opposite party hospital.

56. The second appellant is a surgeon with rich experience and basing on the X-ray report issued prior to the date of surgery and the previously taken MRI while the respondent was under the treatment of Dr.Narendra Babu, he came to the conclusion that the respondent developed Listhesis at LS.S1 and basing on the MRI taken in the month of August 2003, he has decided to perform the surgery upon the spinal cord of the respondent. In the MRI, if there is nerve root compression and disk prolapse, the Neuro Surgeon has to follow the clinical observation and if the clinical observation is correlating with the MRI report there is no need of taking another MRI. Therefore, the line of treatment adopted by the second appellant cannot be found fault with.

57. The learned counsel for the respondent has contended that when the ESR had shown elevated value and the blood picture had given the result with low hemoglobin count, it should have prompted the second appellant to go for further tests. The learned counsel for the appellants has contended that ESR is a screening test which can be used to monitor inflammatory diseases or cancer and it cannot be used to diagnose a specific disorder. The medical literature submitted by both the counsel is relevant to be considered here.

58. Medline Plus describes ESR as 'a test that indirectly measures how much inflammation is in the body. Once a diagnose has been made this test may be used to monitor whether the illness is becoming more active or flaring up'. ESR is useful for detecting and monitoring for 1.the Autoimmune disorder, 2. Certain forms of arthritis, 3. the Inflammatory diseases that cause vague symptoms, 4. The tissue death. 5. Tuberculosis.

59. The learned counsel for the appellants has referred to the literature, 'American Family Physician 'on clinical utility of the Erythrocyte Sedimentation Rate by Malcolm. Brgiden of C.C. Cancer Agency, Canada wherein it is mentioned that extreme elevation of ESR is strongly associated with serious underlying disease. The author is of the opinion that women tend to have higher ESR values. He is of the view that the upper limit of reference range of ESR for men and women of above 50 years is 0 to 20 and 0 to 30 respectively and the factors that may influence ESR are, old age, female, pregnancy, anemia, red blood cell abnormalities, macrocytosis and the technical factors are ‘Dilutional problem, Increased temperature of specimen and Tilted ESR tube.

60. The author has subscribed to the view that any condition that elevates fibrinogen (e.g. pregnancy, diabetes mellitus, end-stage renal failure, heart disease, collagen vascular disease, malignancy) and temporal arteries may elevate the ESR. He pointed out that a high ESR correlate with overall poor prognosis for various types of cancer including Hodgkin’s disease, gastric carcinoma, renal cell-carcinoma, lymphocytic leukemia, breasts cancer, colorectal cancer and prostate cancer and ESR is a non-specific test and in most cases infection was held the leading cause of an extremely elevated value of ESR which is followed by collagen vascular disease and metastatic malignant tumour.

61. The learned counsel referred to the Wikipedia wherein it is mentioned that the test was invented by Edmund Blemack, a Polish doctor and later in 1918 Swedish scientist, Robert Sanno factors for an increase in value of ESR are shown as ‘pregnancy, inflammation, anemia or rheumatoid arthritis. The learned counsel also made reference to Michael T Murray and Joseph E Pizzornos’ Text Book of Natural Medicine’ and the chapter 11 of the book dealing with Erythrocyte Sedimentation Rate is described as non-specific indicator which should not be used as sole diagnostic test and the factors which interfere with the value of ESR are shown to be Elevated level of fibrinogen,globulins an cholesterol, high room temperature, microcytic anemia, menstruation, pregnancy, running a refrigerated blood sample before it has returned to room temperature, tilted ESR tube, certain drugs. The following factors are shown to have clinical implications of changes in the ESR :

Acute heavy metal poisoning, All collagen diseases, carcinoma, cell or tissue destruction, gouty arthritis, infections, inflammatory diseases, leukemia, myocardial infarction, multiple myeloma, nephritis, pneumonia, rheumatoid arthritis, syphilis, toxemia etc.

62. This Commission in appeal, F.A.No. 1012 of 2009 referred to the rival contentions of the parties that according to the respondent that elevated ESR and low hemoglobin count of the respondent should have prompted the appellant no.2 to advise for further tests and the contention of the appellants that ESR is only a screening test used to monitor inflammatory diseases or cancer and it cannot be used to diagnose a specific disorder. In paragraph 58 of its order this Commission held that failure of the second appellant to recognize elevated ESR would not constitute deficiency in service on the part of the second appellant, It was held:

The line of treatment adopted by the second appellant cannot be found fault with. His decision to perform surgery when there was no response to the conservative treatment and the uneventful surgery do not give any scope for alleging negligence. Even the second appellant’s failure to recognize the low HB and elevated ESR would not constitute deficiency in service as it would amount only to an error of judgment. What the respondent claims is the lack of diligence and skill in the administration of the treatment in detecting the spinal TB of the respondent.

63. The learned counsel for the respondent who represented the respondent till the matter is carried before this Commission in the shape of present appeal has contended that this Commission had held failure of the second appellant to recognize elevation of ESR as an error of judgment and ironically it referred to in paragraph 39 of the order the purpose of ESR and that is what exactly Dr.Tuli’s comment in chapter 5 of his book, Tuberculosis of the Skeletal System. The District Forum in paragraph 19 of the order held that the observation of the author of raised ESR would not be a necessarily proof of activity of infection and raised ESR may be noticed not only in case of TB and it is also found in other serious infections. The District Forum opined that the second appellant should have taken notice of elevated values of ESR on different dates and he should have ordered for further tests to know presence of any other infection.

64. The second appellant had noted ESR of the respondent in ExA7, copy of investigation findings dated 13.05.2004 which would show the value of ESR on 13.05.2004 and 15.07.2004 are 38mm and 15mm respectively. The Investigation Report dated 12.12.2009 indicates the value of ESR as 30mm.

65. P.Ws 3 to 10 is the doctors and most of them treated the respondent subsequent to the treatment rendered by the appellants. None of them deposed whether the second appellant ought to have ordered for further tests to know presence of any other infection. The contention of the respondent and finding of the District Forum in this regard does not draw support from the evidence of any of the doctors who are examined as witness on behalf of the respondent. Thus, the failure of the second appellant to recognize low hemoglobin count and elevated ESR as factors requiring attention of the second appellant to consider the respondent for further tests to rule out possibility of infection is an error of judgment.

66. The learned counsel for the respondent before the District Forum and the respondent before this Commission have submitted that the second appellant failed to diagnose spinal TB of the respondent and he did not send the vertebral disc piece for biopsy soon after it was removed whereas the learned counsel for the appellants submitted that the respondent’s husband did not inform the second appellant prior to or at the time of performing surgery about their daughter suffering from spinal TB and when he informed him on 19.7.2004, immediately he had sent the disc piece for biopsy to Amba Diagnostic Centre.

67. The second appellant did not send the disc piece immediately after he had performed the surgery and he or the first appellant hospital has not adduced any cause for not sending the disc piece for biopsy immediately after the surgery was performed. It is contended on behalf of the appellants that there was no circumstance warranting the appellants to send the piece of the disc material for biopsy since the X-ray did not show any abnormality.

68. The learned counsel for the respondent before the District Forum in her written submissions had contended that the respondent has not alleged or complained that the appellants were negligent in not sending the preserved disc piece for biopsy because TB had not developed at the site of surgery and her submission is that the present state of entire spine of the respondent was to be evaluated.

69. The District Forum opined that sending of piece of disc removed from the spine of the respondent for biopsy on being informed on by the respondent’s husband on 19.07.2005 that once their daughter suffered from spinal tuberculosis, is a pseudo service and the District Forum observed that the pseudo service gives rise two answers, the second appellant wanted to make believe the respondent and her husband that he was taking steps to know whether the respondent was suffering from tuberculosis and secondly, he did not take steps to know if the respondent was suffering from tuberculosis even after his being informed of tuberculosis once attacking the respondent’s daughter. This Commission held

The second appellant in his cross examination has stated that he did not get any other tests except sending the disc piece for biopsy. The respondent’s husband in his cross examination admitted that the pathologist did not say that the sample was not properly preserved nor did he express that the disc piece was unfit to be tested. The learned counsel for the appellants contended that the respondent has not produced the X-ray film taken at the appellant no.1 hospital and the MRI taken at the NIMS which would establish the fact that there was no negligence on the part of the appellants in the matter of administration of treatment to the respondent.

70. This Commission held in F.A.No, 1210 of2009 that sending of the removed disc piece did not make any adverse effect as to its validity. In paragraph 54 of the order this Commission observed:

54. The second appellant in his cross examination has stated that he did not get any other tests except sending the disc piece for biopsy. The respondent’s husband in his cross examination admitted that the pathologist did not say that the sample was not properly preserved nor did he express that the disc piece was unfit to be tested. The learned counsel for the appellants contended that the respondent has not produced the X-ray film taken at the appellant no.1 hospital and the MRI taken at the NIMS in order to suppress the fact that there was no negligence on the part of the appellants in the matter of administration of treatment to the respondent.

71. Before considering the evidence of the doctors, P.Ws 7 to 10 who were examined after the complaint was remanded to the District Forum, it is relevant here to consider the evidence of the doctors, P.Ws 3 to 5 was discussed at paragraphs 51 to 53 of the order which is extracted herein below.

PW3, G.Maru has deposed that the respondent was suffering from fever and skin problem and that Dr.Meher Prasad administered treatment to her, in his hospital as also blood was transfused to the respondent. He has stated that he referred the patient to an expert as his hospital was not equipped with specialist i.e., neurologist.

PW4, Ch.Bangaru Rao, has deposed that he treated the respondent however, there was no evidence to prove his administering treatment to the respondent. He has admitted in his cross examination that he did not issue any referral letter.

PW5, A.Ramadevi has stated that Dr.Narendra Babu is no more and she has given report that the respondent was diagnosed with haemengioma. She has deposed that haemangioma is not tuberculosis. She has stated that all infectiosn are not tuberculosis and biopsy confirm whether a patient suffers from TB or not. According to her the problem arose due to compression of intervertabral disc on the nerve and canal narrowing. She has deposed that she cannot say the exact period during which tuberculosis can be reflected in the MRI.

The superintendent examined as PW5 is the administrative superintendent and he deposed that he is on the administration side as also he has no knowledge of the treatment administered to the respondent at NIMS. Doctor Sahu accompanied him to the District Forum and did not choose to enter witness box despite the repeated notices and reminders from the District Forum.

72. P.W.7 who was examined on 5.6.2012 after the matter was remitted back to the District Forum, deposed that he is working as professor with General Surgery Department in Sidhartha Medical College, Vijayawada and about four to five years to the time of his giving evidence, the respondent was brought in an ambulance to his clinic and he observed swelling on her back and after conducting needle biopsy he confirmed that it was an abscess. He has stated in his cross examination that he was running the clinic for 7 years and the second appellant is neurosurgeon with experience of 17 years and the second appellant opened the first Neuro Surgery department in Krishna District. Further, he has stated that he does not maintain record for issue of OP slips and he treated the respondent as an outpatient and he was deposing without identifying the respondent and not basing on any record. He has also stated that there is no evidence to show that he treated the respondent.

73. P.W.8 stated that he is a practicing doctor at Vijayawada for about 47 years and the respondent came to him as outpatient about seven years ago and he found spinal TB and he had done needle aspiration of abscess and handed over the aspired pus to the respondent’s husband for its examination and thereafter the respondent had not turned up or shown him the report ExA31 which was for the first time shown to him while giving evidence.

74. He has deposed that he did not maintain any record to show that he treated the respondent. He has stated that there cannot be a fixed period for development of abscess and it may be one day, one week or one month and in some cases pus may not come on aspiration of the abscess as also nothing would come if the abscess is hard and in early stage.

75. Evidence of PW7 and PW8 does not inspire confidence as they deposed without identifying the respondent and not based on any evidence particularly in the light of the fact that they did not maintain any record in violation of the provisions of the Indian Medical Council Act and purely based on the horizon of their memory lane where hundreds or thousands of patients’ names and record cannot be presumed to be permanently recorded.

76. Even otherwise, ExA31 does not speak of the respondent suffering from tuberculosis and without there being any pathological report, it is difficult to believe the evidence of P.Ws 7 and 8 that they diagnosed the respondent not based on any report in support of their conclusion arrived therefor. Even if it is presumed that the respondent was diagnosed with tuberculosis, there is no explanation from the respondent as to why she had not brought it to the notice of the second appellant when she consulted him on 9.10.2004.

77. P.W9 deposed that he is the head of department of neurology and not the treating doctor and as per the record, Ex2 he could state that the respondent was diagnosed to have Koch’s spine and she was of the status of post laminectomy and discectomy, L-4-5; L5-S1 and the MRI spine revealed absence of lamina L4 and L5 and changes in T10 to L1 body destruction of T11 and T12. He has stated that the record shows that the treating doctors at NIMS suspected tuberculosis and advised for non-specific tests such as ESR and Monteux Test and specific test of pus culture which reported negative. He has deposed that no opinion was noted after the MRI report was received and the respondent was advised to take ant tuberculosis medicine and to attend for review after two months from the date of discharge.

78. Further, P.W.9 has stated that the original of ExA35 is different from the discharge summary, ExX3. In his cross examination the doctor deposed that there are two types of tests to find out any disease and they are, clinical and investigative tests and Ex X3 does not contain MRI findings and in the case of immune-compromise patient tuberculosis abscess develops in few weeks’ time while in immune-competent patient it takes months to develop and from the record of NIMS he cannot say whether the respondent is immune-competent or immune-compromised patient. He has stated that only empirical treatment was administered to the respondent at NIMS .

79. P.W.10 stated that he is working as consultant radiologist at Vijayawada and he issued report, ExA30. He has stated that question mark was put in the report showing probable tuberculosis of spine at S12 and L1 region of the spine. He has deposed that there is 4' to 5' gap in between L1 and L5 and he did not find any abnormality at the site of surgery and while conducting laminectomy of L5,there is no possibility of visualizing D12 and L1region and he admitted that there is no scope for haemangioma converting to tuberculosis and there was no need to send the removed prolapsed disc for biopsy to know malignancy or tuberculosis. He deposed that no treatment is required for haemangioma which may exist in any part of the body of the patient.

80. The evidence of P.W9 would show that the doctors at NIMs administered empirical treatment to the respondent and they had not recorded finding of MRI report in the case sheet and the MRI report along with X-ray films was handed over to the respondent at the time she was discharged from NIMS. The counsel for the respondent in the written arguments dated 10.11.2008 contended that the doctors at NIMS had noted relevant details without abruptly jumping to any conclusion and the MRI LS spine report showing the symptoms made them to suspect that it could be ‘Koch’s or ‘metastasis and ruled out with the help of MRI possibility of ‘Meningioma’ and ‘Neruofibroma’. The respondent had not filed the MRI film or report issued at NIMS without which PW9 stated that it would not possible to say whether the respondent was suffering from Koch’s spine.

81. On 7.09.2004 the respondent was taken to Dr.Mehar Prasad who is a physician and treated the respondent by controlling the fever. She was discharged on 30.09.2004 from the hospital with an advice to consult the neurosurgeon in regard to the treatment for the swelling she developed during the stay in the said hospital. When the respondent was brought back to the first appellant hospital on 14.11.2004, with the complaint of low back pain, after conducting tests the second appellant noted in ExA11 the central nervous system as 'no abnormality detected' and in the Discharge summary it is mentioned that the patient suffered from neurological problems like right facial palsy, UMNL, Radiculopathy. As seen from ExA15 the respondent was unable to walk without support at the time she was discharged on 22.07.2004

82. The learned counsel for the appellants placed reliance on medical literature by various authors whereas the learned counsel for the respondent before the District Forum cited passages from 'Tuberculosis of the Skeletal System' by S.M.Tuli. and CDC recommendations. S.M.Tuli has opined that smear examination of tuberculosis material may yield a positive result for Tubercle bacilli if the sample contains more than 10000 bacilli per ml; this is so because skeletal tuberculosis is considered to be a paucibacillary disease, the load of Mycobactgeria in osteoarticular diseaswe being less than 10 to the power of 5. He further opined that mycobacterium culture methods are slow and insensivtive enough in bacillary pulmonary tuberculosis, these difficulties get greatly magnified in paucibacillary disease….. for pacibacillary disese, they reported encouraging result by cultures maintained for 8 weeks.' 83. The learned counsel for the appellants relied upon the following decisions:

1. B.H.Parmar (Dr) v. Dodiya Mnaharbai @ Manubhai, 2012(2) ALD Cons. 4

2. Bethala Earnest John Martin andanother vs. Dr.N.Ammanna and other, 2012 (2) ALD (Cons.) 10

3. Nilini v. Manipal Hospital and anr, 2012(3) ALD (Cons.) 6

4. JSS Hospital and other v. Pankajrani and others 2012(3) ALD (Cons.) 28

5. Shakil Mohd Vakil Khan v. C.K.Dave 2012(3) ALD (Cons.) 20.

84. The learned counsel for the respondent has relied upon the decision of Hon’ble Supreme Court in IMA Vs V.P.Shanta, AIR 1996 SC 550.

85. In Dr.B.H.Parmar (supra) the National Commission considered the facts where the doctor has to perform surgery for removal of stones in gallbladder was removed. The sonography report and operation notes did not reveal that gallbladder was abnormal size and only during the course of surgery it was found that the gallbladder was enlarged and attached to the liver and as such the doctor had to take spot decision in the best interest of the patient to perform only partial removal of gall bladder. The National Commission held that there was no any negligence on the part of the doctor.

86. In Bethala Earnest John is a case where the patient failed to prove medical negligence on the part of the doctor and she was suffering from chronic renal failure, end stage renal disease and heart disease and she was taken to the opposite party doctor in critical condition. She died of acute respiratory failure in the opposite party hospital. It was held that in the absence of any medical expert’s opinion there could be held no deficiency in service on the part of the doctor or the hospital.

87. In Nalini(supra) the complaint alleged medical negligence on the foot of multiple surgeries was held not proved that the surgeries was unnecessary in order to save the life of the patient. A medical board opined that there was no act of omission or commission on the part of the hospital and treating team. As also there was no rebuttal evidence adduced by the complainant.

88. JSS Hospital is a case w

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here patient is a chronic smoker for 35 years was admitted with complaint of hoarseness of voice for more than 2 years and suspected to be a case of cancer of larynx. Tracheostomy was performed and thereafter his condition deteriorated and he died due to cardiorespiratory failure. It was held that his death was attributable to chronic medical problems and no medical negligence was held proved. 89. In Shakil Mohmmad Khan’s case, the complainant’s wife was treated during the course of her previous pregnancy and she was unwilling to continue the pregnancy at the initial stage during course of her third pregnancy and on her request and at the behest of her family member she gave up the demand for MTP and continued the pregnancy. At a later stage of pregnancy she was admitted with complaint of non-fetal moment and it was found that fetal heart beat was present. Subsequently it was found that during the procedure of cesarean section anesthetist was summoned and for the complications that arose subsequently it was held that anesthetist could not be blamed for. 90. In the decision relied upon by the respondent, viz., V.P.Shantha the Apex Court has elaborately dealt with the aspect whether the doctor and his service can be brought into the ambit of the provision of 2(1)(o) of C.P. Act. 91. The learned counsel for the respondent has submitted that the whole case of the respondent is about not conducting the relevant and sufficient tests diagnosis part of the treatment. This Commission held that evidence of Dr.Sahu who treated the respondent was of importance and it held: Dr.Sahu addressed letter dated 13.4.2007 stating that he is not able to attend the District Forum in view of a planned surgery on 30.4.2007 and requested the District Forum to postpone the case to any other date. Thereafter he has addressed letter dated 4.6.2007 that he was suffering from acute Exacerbation of Cervical Spondylotis. The medical Superintendent had sent a telegram dated 21.11.2007 requesting the District Forum to adjourn the matter as Dr.Sahu was not well and not able to give evidence. On 23.2.2008 the medical Superintendent had sent another telegram informing the District Forum that Dr.Sahu was admitted to the Hospital for treatment for chest pain and he would not be able to appear before the District Forum on 25.2.2008. On 25.2.2008 Dr.Sahu had addressed letter stating that he could not appear before the District Forum due to his cervical spondylotis and he has not treated the respondent. He requested to appoint an advocate commissioner to record his evidence. Dr.Sahu had gone on requesting the District Forum to adjourn the case for his giving evidence and eventually expressed his inability to appear before the District Forum on the premise that he was suffering from spondylotis and he had to attend patients at NIMS. His accompanying the medical Superintendent to the District Forum and not giving evidence would throw any amount of light on his recklessness to the dignity of the forum. He had sought time on several occasions to adjourn the case and as a last resort requested for recording of his evidence on commission. In the light of the ratio laid in Ramesh Chandra’s decision (supra), the evidence of Dr.Sahu is essential to prove the case of the respondent since he is neuro- surgeon and supervised the treatment to the respondent at NIMS. 92. This time also Dr.Sahu successfully avoided to attend the District Forum to depose of the facts with regard to the treatment which was administered under his supervision to the respondent at NIMS. The District Forum observed that non-examination of Sahu in the circumstances mentioned in paragraph 26 of the order cannot be counted against the respondent. The District Forum observed: 26. After remand of the matter the complainant made genuine attempt to secure the presence of Dr. Sahu, the doctor of NIMS who treated the complainant. He successfully avoided on the ground of serious illness and hospitalization. So he could not be examined. He suggested the name of Dr. A.K. Purohit, PW.9, through his letter dated 29.8.2012. He also stated in his letter that he had no direct professional decision making role in the treatment of the complainant. So non -examination of Dr. Sahu cannot counted against the complainant. PW.9 had eposed as to the nature of treatment given to the complainant at NIMS, Hyderabad. 93. The second appellant had sent the removed piece of disc on 7.05.2004 on which date the respondent’s husband informed him that once his daughter suffered from spinal tuberculosis. The District Forum observed that the second appellant had not noted about the respondent suffering from swelling of her back though he advised for traction and he failed to take suitable steps to know if the respondent was suffering from tuberculosis and he made a pseudo attempt to know about the disease. The learned counsel for the respondent submitted before the District Forum that the second appellant had admitted in his cross examination that he had not told that the swelling developed only due to the sand bag traction. The respondent contends that as such the appellants cannot be allowed to bring up the contention at appellate stage that there is every possibility of developing swelling which subsequently might have been infected and pus might have formed for which the second appellant cannot be held responsible. 94. The doctors who subsequently stated to have treated the respondent had not administered anti-tuberculosis treatment to her except those at NIMS. Even in NIMS the doctors as the evidence on record goes to show that empirical treatment was administered and on this score, if the second appellant is found negligent the other doctors who subsequently treated the respondent are also bound to be found negligent. As seen from the written arguments of the respondent, she urged us to consider the pain she suffered for a period of 9 months while undergoing treatment at the first appellant hospital which did not care for advising further tests except suggesting her to approach a psychiatrist. In the circumstances, we find some negligence and no specific negligence on the part of the first appellant hospital and award a sum of Rs.50,000/- with interest @ 9% per annum thereon as compensation to the respondent. Accordingly, the order of the District forum is liable to be modified. 95. In the result, the appeal is allowed. The order of the District Forum is modified. The appellant no.1/opposite party no.1 is directed to pay an amount of Rs.50,000/- with interest @ 9% per annum from the date of filing of the complaint till payment and Rs.10,000/- towards costs. There shall be no separate order as to costs in the appeal. The complaint against the respondent no.2/opposite party no.2 is dismissed without costs. Time for compliance four weeks.
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