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Judgment
THIS revision petition has been filed by the petitioner against the order dated 01.06.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (Additional Bench) in short, ( ''the State Commission '') in Appeal No. 1632/2010 & 861/2011 - Dr. Anil Jain Vs. Ramsh Kumar & Ors. by which, while dismissing appeal, order of District Forum allowing complaint was upheld.
BRIEF facts of the case are that complainant/respondent - minor daughter aged 1 1/2 year namely Pooja was got admitted in the hospital of OP No. 1 & 2 -Petitioneron31.1.2008 due to vomiting and diarrhoea. It was alleged that on 2.2.2008 OP No. 2 operated Pooja and discharged her on 6.2.2008. It was further alleged that during operation, OP No. 1 injected left hand of Pooja negligently which caused infection to her left hand and three fingers of left hand were totally infected. On 14.2.2008, the complainant took his daughter Pooja to Kalawati Saran Children Hospital, Delhi and discharged on 18.2.2008 with the findings of treating doctor that she has suffered gangrene in her left hand. On 20.2.2008, the complainant took his daughter Pooja to PGMS, Rohtak where the doctors advised for getting the left hand of Pooja amputated and to get plastic surgery. Thereafter, the complainant took his daughter to Kalawati Saran Hospital, Delhi on 25.2.2008 where the doctors also suggested no treatment except amputation of her left hand. Similar advise was given by the doctors of Ram Manohar Lohia Hospital, New Delhi on 31.3.2008 and by the doctors of AIIMS, Delhi. Alleging deficiency on the part of OPs, complainant filed complaint before District Forum. OP No. 1 & 2 resisted compliant and submitted that on 2.2.2008 patient was seen by OP No. 1/petitioner for the first time and suspicion of INTESTINAL OBSTRUCTION was made. She was operated on the same day after obtaining consent. Operation was successful, but during hospitalization, OP No. 1 noticed that minor daughter Pooja developed swelling over all the limbs where IV fluid was given to her. It was further submitted that because of her illness her veins collapsed and she was irritable and moving her limbs continuously, resulting in frequent change of IV line and swelling in the limbs for which SUMG dressing was done. Swelling of all the limbs disappeared but swelling of left hand was not reduced for which injection and tablets were started and local Gel was applied. On5.2.2008, OP No. 1 found no improvement and he consulted Dr. Atul Patil, who opined relaxing Incisions in the affected limbs, but the same was refused by the complainant. On 6.2.2008, patient was discharged with advise to attend ortho surgeon for left hand swelling and follow up the OPD for abdominal problem. denying deficiency on the part of OP No. 1 & 2, they prayed for dismissal of complaint. OP No. 3 also resisted complaint on the same ground. Learned District Forum after hearing both the parties allowed complaint and directed OP No. 1 to pay Rs.4,00,000/ - compensation and OP NO. 1 & 3 to pay Rs.5,00,000/ - jointly and severally and dismissed complaint against OP No. 2. OP No. 1 & 3 filed appeal before StateCommissionand learned State commission vide impugned order dismissed both the appeals against which, this revision petition has been filed.
HEARD learned Counsel for the parties finally at admission stage and perused record. Leaned Counsel for the petitioner submitted that inspite of no deficiency in operating INTESTINAL OBSTRUCTION, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the Respondent No. 1 submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed. Learned Counsel for the Respondent No. 2 & 3 also supported petitioner.
PERUSAL of impugned order reveals that learned State Commission decided appeal treating negligence on the part of petitioner while conducting operation on left hand of minor Pooja. Learned State Commission observed as under: "The fact of AchutraoHaribhauKhodwa ''scase (Supra) are fully attracted to the instance case. The documentary evidence adduced on behalf of the complainant is sufficient to make it a case of medical negligence against the appellant -opposite party while conducting operation of left hand of minor Pooja (daughter of complainant). In all the cases of medical negligence, where the negligence of doctor is visible by examining the patient, the report of expert doctor is not necessary, because the report of the another doctor can make the case of complainant weak. The Supreme Court of India has taken this view in case titled as V. Kishan Rao Vs. Nikhil Super Speciality Hospital and Anr. *SC) 2010 (2) RCR (Civil) 929 held that: " ...Medical Negligence Claim of petitioner cannot be rejected only on the ground that expert witness was not examined to prove negligence of Doctor. It is not required to have expert evidence in all cases of Medical negligence".
Undisputedly, the opposite party/appellant Dr. Anil Jain is having high professional degrees but the circumstances of the present case do speak that they did not exercise due care and caution in performing the operation of left hand of minor Pooja (daughter of complainant) and hence there was breach of duty on his part and liability has to fastened against them for consequential damages suffered by victim. No doubt, a doctor may be held for negligence on two counts i.e. either the doctor is not possessed of requisite skill, which he professed to have possessed or he did not exercise with reasonable competence. It cannot be disputed that a patient cannot expect from a doctor to possess highest standard of expertise or skill in that branch which he practices, but at the same time the subsequent events of the case have to be taken into consideration while dealing with the case of medical negligence, otherwise no medical professional can be fastened with liability even in the proven cases of medical negligence in his professional duly, as is evident from the instant case. The complainant approached the opposite party No. 1 and 2 (doctors) for treatment of left hand of his minor daughter namely Pooja. OP No. 1 in a very careless and negligent manner treated the minor and due to this, gangrene developed in her left hand and the doctors of various hospitals have asked the complainant that there is no other option except to amputate her left hand and all this has happened due to the careless and negligent treatment given by the OP No. 1. On 5.5.2008 when the OP NO. 1 found no improvement he consulted ortho surgeon Dr. Atul Patilwith the consent of the complainant who gave his opinion of relaxing incisions in the affected limb. Dr. Atul Patil has deposed that "I advised that releasing incision should be given on left hand to decrease the swelling. He also deposed that this is true that this problem can occur due to IV fluids and IV injections." Thus, the treatment given by the OP No. 1 was not proper and he treated the minor Pooja in a very careless and negligent manner and due to this act of OP NO. 1 the condition of minor Pooja became deteriorated and developed into gangrene in her left hand and it became incurable and doctors of various hospitals suggested that there is no other option except to amputate the left hand of minor Pooja. The District Forum after considering the factual position on record has rightly passed the order dt. 4.10.2010".
Whereas, perusal of record reveals that left hand of Pooja was notoperatedat all but on account of IV fluid there was swelling in the left hand and complications arose in the figures of left hand. Pooja was admitted due to vomiting and diarrhoea and she was operated only for that purpose, but learned State Commission wrongly dismissed appeal observing that there was negligence in conducting operation of left hand of Pooja which is apparently patent mistake on the part of State Commission. In such circumstances, revision petition is to be allowed and matter is to be remanded back to learned State Commission for deciding appeal after giving an opportunity of being heard to the parties again and after going through the record.
CONSEQUENT LY , revision petition filed by the petitioner is allowed and order dated 01.06.2012 passed by the Haryana Commission, in Appeal No. 1632/2010 and 861/2011 - Dr. Anil Jain Vs. Ramsh Kumar and Ors. is set aside and matter is remanded back to learned State Commission to decide it afresh after going through the record and after giving opportunity of being heard to the parties.
PARTIES are directed to appear before the State Commission on 17.12.2014.