BAIKUNTH PD. YADAV vs KUMAR SHEO SHANKER

BOTH the appeals have been heard together as they arise out of the common order dated 25.2.2003 passed by District Forum, Bhojpur, Ara in Complaint Case No. 179/2002. Appeal No. 129/2003 has been preferred by O.P. No. 1-Dr. Baikunth Pd. Yadav with a prayer to set aside the impugned order of the District Forum. Appeal No. 196/2003 has been preferred by the complainant Kumar Sheo Shanker with a prayer to enhance the amount of compensation against O.P. No. 1 and also to hold O.P. No. 2 guilty of negligence and deficiency in service.

THE complainant has filed the complaint with a prayer for grant of compensation of Rs. 2,50,000/-, which includes cost of treatment, mental, physical and economic harassment and cost of litigation. The brief fact of the complainant''s case is that he got his hydrocele operated by Dr. B.P. Yadav-O.P. No. 1 on 21.1.2000 in his clinic at Ara (Bhojpur). His allegation is that O.P. No. 1 performed the operation negligently and without getting any pathological or other tests prior to the operation. After operation of hydrocele, the bleeding from the operated part continued for which he contacted O.P. No. 1 on several dates but of no help. According to him, the operation was not performed properly and it was deficiency in the service of the doctor. His further case is that when the bleeding did not stop from his hydrocele he contacted O.P. No. 2 another surgeon Dr. Ramadhar Sharma. He again performed operation on his hydrocele but inspite of that the bleeding from the operated part of the hydrocele did not stop. He became weak due to regular bleeding for long period. He went Kurji Hospital at Patna where after investigation he was advised to go Sanjay Gandhi Post Graduate Institute at Lucknow and his case was referred there. The complainant went Lucknow, at Sanjay Gandhi Post Graduate Institute, he was treated for about three months, and there was improvement in his problem. He has further stated that he also went to AIIMS at New Delhi where there was thorough examination of the reason of bleeding from his operated part of the hydrocele. In this process, he had to spend a lot of money besides he suffered physical, mental and economic harassment for long period. He was the then student of the local college, Ara and there was a break in his studies. With these allegations, he claimed Rs. 2,50,000/- from both the O.Ps.

Both the O.Ps. appeared before the District Forum and filed separate written statement. The contention of the O.P. No. 1 was that the complaint was not maintainable. It was barred by limitation and the complainant was not a consumer because he performed the operation without any charge because the complainant''s family was known to him from much before and due to this long acquaintance complainant has brought him for the operation. He is a qualified surgeon of long standing of more than 33 years and hold different post including of civil surgeon at Bhojpur. He has performed several operations including the family members of the complainant. Therefore, he has full faith on his efficiency. The complainant had come along with his father in his clinic and had shown recent pathological reports of blood etc. which he examined and found normal and accordingly performed the operation on his hydrocele on 17.1.2000. The operation was successful and he prescribed certain medicine for the recovery of the wound. After 4-5 days of the operation from one stitch point the blood was found oozing and it was treated by him and oozing of the blood stopped. He removed the stitches on the 8th day of the operation and the wound has properly healed. After about 20-25 days of the operation, the complainant came to his clinic and showed him that there was minor oozing in one of the stitched line. He advised for fresh BTCT test, which was done at Asia Laboratory, and the result was normal. The bleeding time was normal 40 second and coagulation time was three minute 58 second, which was also normal. Therefore, he prescribed him some medicine. It is also the case that he had come to his clinic second time on 12.2.2000 and thereafter he never returned back to his clinic. For the first time on 20.4.2002, he received legal notice from the complainant in which a compensation of Rs. 2,50,000/- was demanded holding him negligent in his duty. Thus, the complainant has filed the case after lapse of more than two years nine months from the last treatment by the appellant-doctor (12.2.2000). The complainant has purposely withheld his prescriptions, which would have made the entire matter clear.

IT is further case of O.P. No. 1 that from the papers filed by the complainant it appears that he got himself examined at Kurji Family Hospital, Patna between 19.2.2000 to 21.2.2000. There also BTCT along with hemoglobin was found normal which established that during this period there was no loss of blood. The paper shows that Kurji Hospital referred to him Sanjay Gandhi Post Graduate Institute at Lucknow for assessment of individual clotting function with which there is no relation with the operation conducted by O.P. No. 1. The discharge slip of Sanjay Gandhi Post Graduate Institute mentions that bleeding disorder was found controlled since 17th February, 2000. IT is further clear from the papers of the complainant that Sanjay Gandhi Post Graduate Institute, Lucknow referred the complainant to AIIMS, New Delhi in the department of Hematology for platelet function test as there was history of one sibling of the patient having expired due to prolong bleeding as deposed by the patient and his father for the first time. The report of the AIIMS filed by the complainant mentions "possibility of unclassified platelet function defect is considered". Therefore, from the report of the Sanjay Gandhi Post Graduate Institute, Lucknow and of the AIIMS, New Delhi which may be considered expert report on this matter shows that bleeding from the operated part may have continued due to unclassified platelet function defect but the correct diagnosis could not be made even by the expert institution like Sanjay Gandhi Post Graduate Institute and AIIMS. From its report, it is nowhere mention that there was any defect in the operation of the hydrocele and due to any negligence on the part of the O.P. No. 1 the blood has oozed out from the operated part of the hydrocele. The suspected reason for this bleeding has been mentioned in those reports as mentioned above with which the O.P. No. 1 cannot be held responsible. IT was a functional disorder in the body of the complainant and even the expert institutions were not able to give accurate finding with regard to this defective platelet function and its remedy but this fact is admitted that the oozing of the blood has almost stopped after 12.2.2000 and the patient has become further normal because his hemoglobin was found to be normal when he was examined at Patna in Kurji Hospital. Therefore, there is no evidence on record to show that O.P. No. 1 has performed the operation negligently or there was deficiency in his service. The finding arrived at by the District Forum that there was deficiency in the medical service rendered by O.P. No. 1 because he should not have performed the operation in the hydrocele without getting his blood and urine tested. If he had done these tests before the operation, it was possible that report might have mentioned about some defect in his platelet functioning. The District Forum held that O.P. No. 1 did not perform the minimum requirement expected from a surgeon before performing the operation and held O.P. No. 1 negligent in his duty and awarded a compensation of Rs. 50,000/- against him. The contention of O.P. No. 1 is that this finding of the District Forum is bad in law as well as on fact. O.P. No. 1 has made it clear that complainant has come to his clinic along with his father and he was their family doctor acquainted since long. The complainant''s father has brought him along with the recent blood test report which he examined before the operation and since these reports were recent and there was no defect in the report the O.P. No. 1 did not thought it proper for further blood test or urine test for performing the operation on the hydrocele which is in normal course supposed to be a minor operation. O.P. No. 1 did not consider it proper to force the complainant for another pathological test because in that case he would have incurred expenditure, which was not desirable. Under the circumstances, this is not a negligence on the part of O.P. No. 1 but since the recent report of blood was available on the date of operation, therefore, there was no need for further test. In the impugned order it is not mentioned that reports of Kurji Hospital, Patna, Sanjay Gandhi Post Graduate Institute, Lucknow and AIIMS, New Delhi had mentioned a word that hydrocele operation performed by O.P. No. 1 on the complainant had any defect and due to defective operation the blood was oozing out. On the other hand, as mentioned above in detail the reports of Sanjay Gandhi Post Graduate Institute and AIIMS clearly mentions that it was due to the defective platelet functioning which is biological defect in the human body of some of the persons and this disorder is rare. This disorder cannot be detected in normal pathological test of blood even at Kurji. This test is not available, therefore, it referred to Sanjay Gandhi Post Graduate Institute, Lucknow where also the test was not done and it referred to AIIMS. Therefore, in normal course by a surgeon before conducing hydrocele operation such test is not required nor it was possible to be advised because there was no such indication in his earlier blood report. The patient has not reported to him that there has been any death in his family earlier due to platelet defect in the blood. It was submitted on behalf of the learned Lawyer of O.P. No. 1 that finding of the District Forum that complaint was not barred by limitation is bad in law because each separate specific injury caused by an act constitute fresh cause of action and separate period of limitation will run for each. Therefore, in the present case the last cause of action against the O.P. No. 1 was on 12.2.2000 when he last treated the patient but the complaint was filed against him on 25.2.2002. Therefore, it was barred by limitation. The District Forum has wrongly held that cause of action will begin from the date his last treatment at AIIMS, New Delhi.

O.P. No. 2 (Dr. Ramadhar Sharma) had filed rejoinder and written argument. His case is that appellant along with his father came to his clinic on 17.2.2000 for consultation and examination. They informed him about the operation on hydrocele performed on 21.1.2000 by Dr. B.P. Yadav-O.P. No. 1. They informed that blood was still oozing from the site of operation of the hydrocele. They produced papers of previous operation of Dr. B.P. Yadav and also reports of investigation. O.P. No. 2 did thorough re-examination of the appellant and also did exploration of the wound. He found the condition of the wound on the hydrocele of the appellant healthy but some blood was found oozing from the wound in very small quantity. He prescribed some medicine. The complainant''s father was known to him from before and, therefore, he had not charged any amount as fee for this examination. Thus, the appellant has consulted him only on 17.2.2000 and after examination of the wound he had prescribed some medicine as would be clear from Annexure-2. The complainant did not turn up again before him. It is palpably false that he had performed second operation on the hydrocele of the appellant. This is a false allegation against him without any material on record. It appears that complainant is making wild and false allegation against him in order to extract some money from him. From the examination of his operated wound of the hydrocele he was never of the opinion that it requires second operation as he has mentioned in his prescription that operated wound was healthy except that some blood was oozing for which no second operation was required nor he has prescribed for any such operation nor he did any such operation. The allegation of the complainant that he paid Rs. 50/- towards consultation fee and Rs. 2,700/- as operation charge and Rs. 2,250/- as charge for the drugs are baseless and without any evidence on record. O.P. No. 2 is not aware what happened to the complainant after 17.2.2000 because thereafter he never visited his clinic nor he had any knowledge about him, as such, he is not in a position to make any averment with regard to his further development in his treatment. The only document that appellant has proved is the prescription of dated 17.2.2000 which is a document and in it, it is mentioned that he did only exploration of the operated hydrocele which means examination of the operated part and the medicine which he has prescribed is mentioned in the said prescription. There is not a word mentioned in it that he advised for second operation or did second operation. No other papers have been filed on behalf of the complainant in support of his allegation that O.P. No. 2 did second operation. All these allegations are wild and false. The appellant has produced a drug list as a proof of operation by respondent No. 2. The said drug list has neither the name of patient nor the name of operation for which it has been prescribed. It does not appear the signature of the doctor or any assistant. Thus, it is beyond doubt that appellant has forged and fabricated the said drug list. The photocopy of the drug list has been marked as Annexure-I. This paper does not prove that O.P. No. 2 has performed any operation on the complainant. From the papers produced by the appellant including the report of AIIMS, New Delhi clearly mentioned that there was possibility of unclassified platelet function disorder. This means that this disease, which is not related with the operation of the hydrocele, was inherent problem with the patient-complainant and from ordinary examination of the blood like BTCT it is not possible to know the disorder functioning of the platelet in a patient. Only after specialized investigation, which is possible in AIIMS, New Delhi only, therefore, none of the doctors at Ara could have known that patient was suffering from platelet functioning disorder. This may be the reason that his operated hydrocele was oozing blood for some time. However, from the reports of Sanjay Gandhi Post Graduate Institute, Lucknow or from the AIIMS, New Delhi final diagnosis has not been made nor it is mentioned that the treatment given to the complainant at Ara including operation of the hydrocele was defective or the doctors performed their duty negligently. The disease of the appellant was since his birth. It is a form of coagulation disorder as appears from the report of AIIMS. Therefore, the complainant has failed to prove any negligence against the O.P. No. 2 and the finding arrived at by the District Forum that appellant failed to prove any case of negligence or deficiency in service against him is correct and it does not require any interference. We have carefully scrutinized the order of the District Forum, examined the papers on record and the submission made on behalf of the appellant and O.P. Nos. 1 and 2. Most of the fact in the case is admitted including the complainant was operated on his hydrocele by O.P. No. 1 Dr. B.P. Yadav on 21.1.2000. He was examined by O.P. No. 1 again when he complained that wound of the hydrocele were oozing blood. O.P. No. 1 prescribed some medicine. The complainant has withheld all the prescription of O.P. No. 1 with the reason known to him. The complainant was examined by O.P. No. 2 on 17.2.2000, which mentions that complainant was operated of his hydrocele by Dr. B.P. Yadav on 21.1.2000. He found that there was some bleeding from his testis. He has prescribed some medicine. There is no paper on record to show that he performed any operation of the complainant. The District Forum has disbelieved this allegation of the complainant and held that O.P. No. 2 has only examined the complainant once, i.e., on 17.2.2000 and prescribed some medicine. The allegation of performing operation by O.P. No. 2 was found to be false and we are of the view that this finding of the District Forum is correct because there is no material on record in support of this allegation of the complainant. Therefore, we do not find any reason to interfere with this finding of the District Forum with regard to the O.P. No. 2. We also agree with this contention of O.P. No. 2 that from the report of AIIMS it is clear that complainant was possibly suffering from unclassified platelet function defect. This disease is generally found in a patient from birth and it has no relation with the treatment done by O.P. No. 1 (operation of hydrocele) or by O.P. No. 2. From the report annexed on behalf of the appellant, it is not proved that O.P. No. 1 or 2 performed their duty negligently. There is absolutely no evidence on record to show that O.P. No. 1 performed the operation of hydrocele negligently or he was incompetent to perform this operation. The oozing of blood from the operated part was investigated at different institute including at Kufji Hospital, Patna, Sanjay Gandhi Post Graduate Institute, Lucknow and AIIMS, New Delhi though there is no definite finding for the reason of oozing out of blood but has mentioned in the report of the AIIMS that it may be possible due to defect in platelet functioning. The finding of the District Forum that O.P. No. 1 should have done pathological test of the urine and blood of the complainant before he performed the hydrocele operation and as such he was negligent in his duty does not appear to be a correct approach because it has been stated on affidavit by O.P. No. 1 that the complainant along with his father came to his clinic for consultation along with pathological report of his blood (BTCT) done recently and all the reports were correct. Therefore, on the basis of these reports the complainant''s operation of the hydrocele was done by O.P. No. 1. His contention is that since the reports of the blood and urine were recent he never felt necessity of getting his blood and urine re-examined because that would have costed unnecessarily to the complainant and it would not have helped him in performing the operation. We are of the view that this approach of O.P. No. 1 was correct and for this he cannot be held negligent in his medical duty in performing the operation of hydrocele. The complainant has withheld the prescription of O.P. No. 1 and his pathological reports, which he produced before O.P. No. 1 on the date of consultation. We are of the view that withholding of these papers was not fair on the part of the complainant and it shows that he has not come before the Forum with clean hand. The legal position with regard to the duty and obligation of medical practitioner towards his patients has been laid down in many decisions by the Hon''ble Apex Court and National Commission. If the patient submits for his treatment to a doctor and the doctor is a skilled one he owes a duty to the patient to use diligency, care, knowledge, skill and caution in administering the treatment. The law requires a fair and reasonable standard of care and competent. If something goes wrong in the treatment in every case, the doctor cannot be held responsible if he had adopted the accepted method of treatment and adopted a fair and reasonable standard of care and competency. In the present case, there is no allegation that doctor-O.P. No. 1 or 2 had no sufficient knowledge for the disease for which the complainant went to consult. Both are qualified surgeons and they have long experience in the field. They were associated with the Govt. service for long period. The complainant and his father went to these doctors because he know both of them and had faith in their competency. If something has gone wrong as alleged by the complainant in this case or that the complainant has to prove that the doctor was careless, incompetent and he did not adopt the fair and reasonable standard of care and competency while treating him. The complainant has also to prove that he was diligent in attendance. The only allegation of the complainant is that O.P. No. 1 did not perform his hydrocele operation carefully rather performed negligently but accept the allegation there is no expert evidence on this point. The complainant has visited several repudiated and specialized Institute like Sanjay Gandhi Post Graduate Institute, Lucknow and AIIMS at New Delhi for his treatment as some blood was oozing from his operated hydrocele. The reports of AIIMS as discussed above does not mention that his operation was done carelessly or negligently rather they have given a different reason as mentioned above for this oozing out of blood. It was a hereditary and by birth problem to the patient for which both the doctors were not responsible in their treatment. The appellant-complainant has miserably failed to adduce any expert evidence or any literature on medical science to show that O.P. No. 1 performed his operation carelessly and negligently. A charge of professional negligence against a medical man was serious. It is stood in a different footing to a charge of negligence against a driver of a motor car. It affected his professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best skill in the world things sometime went amiss in surgical operation or medical treatment. A doctor was not be held negligent simply because something went wrong. He was no liable for mischance or misadventure, or for an error of judgment. He was not liable for taking one choice out of two or for favouring one school rather than another. He was only liable when he fell below the standard of a reasonably competent practitioner in his field so much so that his conduct might be deserving of censure of inexcusable (emphasis supply). In the present case the complainant has failed to prove that O.P. No. 1 had an error of judgment while operating the hydrocele or he fell below the standard of reasonably competent practitioner in his field. Therefore, except the allegation of negligence against O.P. No. 1 there is no other evidence on record to support this allegation. A person is not liable for negligence because someone else of better skill and knowledge would have prescribed different treatment or operated in a different way, nor he is guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art. This view has been expressed in Hulsbury Laws of England Volume-26 at page-17.

IN view of the facts and legal position as discussed above, we are of the view that the finding arrived by the District Forum that O.P. No. 1 was negligent in his duty is not sustainable in the eye of law. We are of the view that complainant has failed to prove by adducing any expert evidence that he performed his hydrocele operation negligently or he was careless in his duty. We are also of the view that finding arrived by the District Forum that no case is made out against O.P. No. 2 as alleged by the complainant is correct and it does not require our interference.

IN the result, we do not find any merit in Appeal No. 197/2003 and this appeal is dismissed and in view of the above finding, Appeal No. 129/2003 is allowed and impugned order to this effect is set aside. However, there shall no order as to cost. Ordered accordingly.