B.S.HEGDE vs SUDHANSU BHATTACHARYA

THESE are two cross appeals against the order dated 29th May, 1992 of the State Commission of Maharashtra in Complaint Case No. 140 of 1991 on the file of that Commission.

SHRI Hegde, the appellant in First Appeal No. 243 of 1992 was the complainant before the State Commission and Dr. Bhattacharya, the respondent in First Appeal No. 243 of 1992 and appellant in First Appeal No. 265 of 1992 was the opposite party before the State Commission. It was alleged in the complaint that the complainant underwent an open-heart by-pass surgery performed at the Bombay Hospital in November, 1990 which surgical operation was performed by the Opposite Party and that despite his having paid an amount of Rs. 40,000/- to the Opposite Party for post operative care, the Opposite party did not give him the requisite care and attention and that because of the said deficiency in service on the part of the Opposite Party the complainant was put to unnecessary physical suffering as well as mental agony and harassment. On these grounds the Complainant approached the State Commission with a claim for recovery of a compensation of Rs. 2.00 lakhs from the Opposite Party. The parties will hereinafter be referred to as complainant and opposite party. After the necessary preliminary investigations and on the basis of expert medical opinion, Shri Hegde underwent coronary artery by-pass surgery on the 8th of November, 1990 in the Bombay Hospital. The operation which was performed by the Opposite Party was perfectly successful and there were no complications.

FOR the operation and other services, the complainant paid to the hospital a sum of Rs. 38,665/- as operation charges and Rs. 13,081/- as service charges. The share of the opposite party Dr. Bhattacharya in the fees paid to the hospital for performing the coronary by-pass surgery was only Rs. 1,500/-. For the post operation care and treatment for a period of three months the complainant paid Rs. 40,000/- to the opposite party by cheque on 16th November, 1992. The complainant was discharged from the hospital on 19th November, 1990.

THE complainant has alleged that prior to the operation on the 8th November, 1990 the opposite party Dr. Bhattacharya had expressed his inability to perform the operation before 24th November, 1990 because of his other pressing pre-occupations. He is said to have demanded Rs. 40,000/- for undertaking the operation to be paid to him before the operation, 50% in "black" and 50% in "white". Subsequently on agreeing to pay Rs. 25,000/- by the complainant, the opposite party agreed to advance the date of operation from the 24th November, 1990 to 8th November, 1990. After the operation, however, the opposite party demanded Rs. 40,000/-. The complainant paid this sum by cheque on the 16th November, 1990. The receipt for the amount paid was passed for "post operative care stretched for three months." According to the complainant he did not get any post operative care and treatment from the opposite party. He had to go to the opposite party on two occasions within the post operative period of three months after the operation. The first post operation appointment was on the 8th December, 1990 at the consulting room of the opposite party. At that time the Complainant is said to have felt pain and increased uneasiness. According to the complainant he was made to wait for four hours. After he was tired of waiting, he entered the consulting room of the opposite party when the latter was attending to other cardiac patients. The opposite party, Dr. Bhattacharya expressed his annoyance and resentment over the complainant having barged into his room. According to the Complainant it was only after a lot of persuasion that the opposite party prescribed some tablets and thereafter asked the patient to go away. He was also advised to go to Dr. Borges of the Bombay Hospital for post operative care.

THE complainant sought the second and last appointment on the 28th January, 1991 after examination by one Dr. Ravi, Assistant of the opposite party. The appointment was fixed for the 6th February, 1991. According to the complainant he had again to wait for two and half hours while he was suffering from continuous pain in the chest. Puss was oozing out from the chest. The Secretary to the Opposite Party did not let him go into the consulting room as the Doctor was examining another patient. As he could not wait any longer, he left the consulting room without receiving any treatment from the opposite party.

ON the basis of these allegations, the complainant has contended that no reasonable, proper and satisfactory care and treatment was rendered to the complainant by the opposite party Dr. Bhattacharya. His further efforts to get an appointment with the opposite party through Dr. Shetty also proved futile. So he had to seek the treatment from two other doctors for the post operative care and treatment viz. Dr. Shetty and Dr. G. N. Rachmala of J.J. Hospital. On 19th February, 1991 his chest was reopened. His chest was found severely infected, he was experiencing great pain and suffering and his life had been endangered. He had to incur considerable amount on his post operative treatment and recovery.

THE defence of the opposite party Dr. Bhattacharya is that there has been no deficiency in service at all on his part. The operation was completely successful and the complainant was no longer a cardiac patient inasmuch as there were no cardiac complications such as peri operative infract, early reangina, peri caridal effusion, plural effusion, post caridactomy syndrome, pnemothorax etc. According to him it is a natural and common phenomenon that during the healing up process, after a major super specialised surgery, induration may take place around the scar. In the case of complainant the inspection complained of was superficial at the skin level of the body as the skin level wounds on the chest always remain susceptible to infection which is not directly related to the bypass operation of the heart including post operative care. He has further explained that the susceptibility of the outer wounds to catch infection could be due to various reasons such as scratching of skin due to irritation, lack of oral hygiene, general debility of the patient, infection from the air through breathing, any kind of systemic infection contracted from visitors, clothings, food etc. even though the patient is covered by antibiotics. The pain which the patient is said to have experienced was associated with the healing process.

THE opposite party has denied that he had demanded a sum of Rs. 40,000/- for undertaking the operation, 50% in "black" and 50% in "white", and have averred that he advanced the date of the operation from the 24th November, 1990 to the 8th November, 1990 under pressure from the friends and relatives of the complainant and from his professional colleagues. The Opposite Party has further stated that eight days after the operation, he received a sum of Rs. 40,000/- from the Complainant for rendering post operative care and treatment for a period of three months and that this was a contractual relationship. The opposite party has alleged that on the 8th December, 1990, i.e., on the first post operative appointment the complainant requested that the description of the charge in the receipt for Rs. 40,000/- be changed from "post operative care ..." to "operation charges" in order to enable him to claim reimbursement from the Government. Since the Opposite Party did not agree to this request the Complainant was annoyed with him.

HE has also explained that on the 8th of December, 1990 the appointment was fixed for the complainant at 6.30 P.M. and he was asked to wait because the opposite party Dr. Bhattacharya was examining a cardiac patient and other cardiac patients who had also got appointment on that date, were waiting for their examination. The complainant, however, wanted to jump the queue since he was a senior officer in the Government of India. He was impatient and did not want to wait for his turn for examination. So he barged into the room of the opposite party and demanded preference over other cardiac patients. However, to avoid an awkward scene and noise at the clinic the Opposite Party examined him and prescribed necessary treatment.

ON the second date of appointment i.e. on the 6th of February, 1991, the appointment was given promptly on the same date on which it was requested for. On this occasion again the complainant wanted to be examined out of turn immediately on his arrival. Since the opposite party''s secretary did not permit him to do so, he barged into the opposite party doctor''s room and spoke impolite and harsh words against the secretary of the opposite party and left in a huff without waiting for examination in his turn. The State Commission, after examination of the evidence, took the view that "since no complication have been found at that time (from the date of discharge i.e. 19.11.1990 till 23.11.1990 when the complainant patient was examined by Dr. Eric Borges) the complainant had uneventful post operative care. It, therefore, follows that since no complications were found at that time, there was no necessity to charge an amount of Rs. 40,000/- to the complainant for post operative care."

THE State Commission has also observed that the opposite party examined the complainant reluctantly on the 8th of December, 1990 and prescribed some tablets and all those would have hardly taken a minute. On the subsequent date on 6th February, 1991 the opposite party did not have the courtesy to grant interview to the complainant to ascertain precisely the post operative care needed by the complainant. The State Commission, therefore, came to the conclusion that the opposite party charged disproportionate and unconscionable amount for post operative care and also rendered deficient service to the complainant. The complainant, therefore, was compelled to receive treatment from J.J. Hospital and other doctors due to the negligence of the opposite party to render necessary service.

THE State Commission has observed "there is convincing and adequate evidence on record to show that the complainant badly needed the post operative care as pus was formed in his chest region for want of post operative care. The nature and extent of the damage caused due to the formation of pus in the chest region of the complainant was such that in ordinary course of nature, it was sufficient to cause the death of complainant. In other words, the degree of negligence to render post operative care to the complainant was of serious nature. The complainant was required to undergo another operation of the rib from chest region in which a part of infected rib was removed. The traumatic situation in which the complainant was placed was the direct result of the act of the omission and negligence on the part of the opposite party to render post operative care to the complainant." The State Commission, therefore, held the opposite party Dr. Bhattacharya as guilty of gross negligence to render necessary service to the complainant which was undertaken by him for consideration. There was imperfection, shortcoming and inadequacy in the nature and manner of performance of post operative care. Consequently, the State Commission awarded a sum of Rs. 2,00,000/- by way of compensation to the complainant and Rs. 1,000/- towards costs. As regards the complainant''s claim of refund of the sum of Rs. 40,000/- the State Commission observed that the same was agreed to be paid to the opposite party on behalf of the complainant. As such it held that it was not possible to refund the amount of fees which had been agreed upon by and on behalf of the complainant to the opposite party Dr. Bhattacharya as his fees for post operative care. "How much to charge as fee for medical services is the choice of the medical practitioner even though it may be excessive, unreasonable and unjusticiable. Once the patient agrees to pay the fees even though under compelling circumstances, it will not be proper to order the refund of the amount."

THE first question to be considered in the appeal is : (1) Whether there is any deficiency in service ? In this connection the following facts are relevant : (i) Coronary artery by-pass surgery was successful; (ii) There was no problem relating to the heart operation or any cardiac complication in the post operative period; (iii) It is usual for the patients to have chest pain after having undergone surgery. Further, pus formation in the stitches is a normal occurrence in the post-operation period of coronary by-pass surgery; (iv) Chest pain due to wounds and pus formation in the stitches is essentially a surgical problem and not a cardiac problem requiring a cardialogist''s attention.

THERE is no evidence of any post operative cardiac complication having arisen in regard to the Complainant during the post operative period. The opposite party has also stressed that the complainant had been attending his office regularly during part of the post operative period and the implication is that he could not have done so if his condition was serious and his life was in danger. In fact the State Commission itself has questioned the propriety of the opposite party having charged a sum of Rs. 40,000/- for post operative care on the ground that "since no complications were found at that time (19th November, 1990 to 23rd November, 1990) there was no necessity to charge an amount of Rs. 40,000/- to the complainant for post operative care" (the payment was made on the 16th November, 1990). We agree in general with the observation of the State Commission that fee paid for an operation also includes post operative care. But in this case operation was performed in a hospital, i.e., an institution. It is the duty of the institution to render post operative care and treatment. The private doctor, who is performing the operation for a fee in the hospital, cannot be expected to undertake and provide post operative treatment and care to the hospital''s patient. Quite often foreign doctors undertake operations in hospitals or nursing homes in India and it cannot be maintained that the post operative care and treatment will continue to be provided by the foreign doctors who may no longer be in the country.

IT is significant that in the notice served by his lawyer on the 19th of March, 1991 it is pleaded that "for over a month, i.e. till 8.12.1990 ... no special post operative care except for rest was required by him as he did not develop any complications ... However, on or about 8.12.1990, my client developed severe chest pain after which my client contacted you over the telephone for appointment and you were good enough to give an appointment on 8.12.1990 at 6.30 p.m.". What happened at the appointment on that date has already been mentioned above viz., he had to wait to get a prescription. But, the lawyers notice continues, "up to the third week of January, 1991 my client did not feel any need of meeting you (opposite party Dr. Bhattacharya) and hence he went on taking rest as advised by you and did not bother you till the third week of January, 1991 when he again, experienced uneasiness and chest pain". The affidavits of the medical doctors who attended on the complainant during the post operative period lend no support to the Complainant''s case.

DR . M. D. Shetty has averred that on the 27th January, 1991 he examined the complainant Shri Hegde at his residence and found a "fluctuant swelling on the sternum at the level of the sixth rib" and aspirated the fluid which was serious in quality; the treatment given was of a superficial nature. He has also categorically averred that it is incorrect that the nature and extent of damage due to pus formation could in ordinary course cause death of the complainant Shri Hegde. Dr. Ravi has averred that on the 28th January, 1991 he found the discharge from the sternum as "serious not foul smelling", there was no tenderness, "the patient was aferbile and vital parameters were within normal limits".

IN short there is no evidence of any deficiency in service on the part of the Opposite Party either in performing the operation or in rendering adequate care and treatment considering that there was no cardiac or even any other serious complication during the post operative period.

THE second question considered by the State Commission relates to the charging of a sum of Rs. 40,000/- as fees for the post operative care and treatment for a period of three months after the operation. The suggestion of the complainant is that this amount was really in the nature of fees for the operation is not maintainable inasmuch as the amount was paid nine days after the operation was over and was made by cheque. No part of the fee of the operation was paid under the table. It is naive to suggest that the complainant agreed to pay this amount unwillingly and under compelling circumstances for post operative care and treatment even before he had occasion to receive any care or treatment from opposite party especially when he was advised by his relations and friends and had access to Dr. M. S. Alva and Dr. Shetty. He knowingly paid Rs. 40,000/- for operation to be done by the opposite party - Dr. Bhattacharya and agreed it to be described as his fees for "post operative care and treatment". As rightly observed by the State Commission "How much to charge as fee for medical services is the choice of the medical practitioner even though it may appear to be unreasonable and unjustifiable". It must be conceded that a doctor has the absolute right to decide which patient he would examine first and even out of turn depending upon the condition of the patient. There is nothing improper or unreasonable if the doctor gives precedence to patients with active cardiac problem where urgent attention was called for in preference to one who has come for routine consultation after successful cardiac surgery. Also he has the right to examine patients in their turn and it cannot be maintained that a patient must be examined by the doctor at the appointed time irrespective of the time he may have to spend in examining the previous patients. In the light of the foregoing discussion we allow this appeal) set aside the order passed by the State Commission and dismiss the complaint.

IN our interim order of 21st of September, 1992 we had directed the opposite party (who was the petitioner in First Appeal No. 265 of 1992) on his Miscellaneous Petition No. 293 of 1993 that he should pay a sum of Rs. 50,000/- to the complainant towards the amount payable under the impugned order passed by the State Commission. This amount will have now to be refunded by the complainant Mr. Hegde to the opposite party Dr. Bhattacharya. We order accordingly.

BEFORE we hand down this order we must observe that we feel rather disturbed that the opposite party should have charged Rs. 40,000/- for the post operative care and treatment. The fee for the major surgery as such was only Rs. 1,500/-. Consequently, there is no iota of doubt that the fee for post operative care and treatment viz. Rs. 40,000/- was unconscionably high. Further, it is in evidence that the opposite party doctor''s consulting charges are only Rs. 430/- per consultation. As such the charging of such a high fee of Rs. 40,000/- for post operative care and treatment is clearly unreasonable. This gives rise to suspicion that it might have been really in the nature of a fee for the operation passed off as a fee for post operative care and treatment. However, improper it may be, the demand and acceptance of an exorbitant fee cannot be deemed to be deficiency in service and hence, it is not for the consumer forums to adjudicate on the question whether the consideration charged was reasonable. We have been constrained to refer to this aspect because it raises a fundamental question of nature of relationship between the medical doctors and the patients. The parties shall bear their respective costs in this appeal.