DWIVEDI PANNAG BHUSHAN vs BALRAM KUMAR SINGH

DR. Dwivedi Pannag Bhushan appeals against the judgment and order dated 19.5.2003 passed in Complaint Case No. 75/1998 on the file of the District Consumer Forum, Deoghar, whereby the appellant has been directed to pay a sum of Rs. 1,00,000/- by way of compensation due to medical negligence on the part of the appellant while rendering medical service to the complainant/respondent.

THE short facts giving rise to the dispute are that the complainant while ploughing his field sustained a fractured knee injury of his left leg. He approached the appellant Dr. Bhushan for his treatment. THE doctor advised him operation and accordingly he was operated upon on 8.11.1996 and since then he remained in the Nursing Home for about a month. THE complainant has incurred a huge amount while in the Nursing Home, besides a sum of Rs. 10,000/- paid to the operating Surgeon as operation fee. Even after operation, he has become total handicap. However, the appellant doctor assured the complainant of his complete recovery in due course, but unfortunately, the condition of the patient remained as it was, and ultimately the complainant became totally incapable of earning his livelihood. On being noticed, the appellant Dr. Dwivedi appeared and filed his response wherein the injury as well as the treatment including operation performed by him has not been denied. However, it is alleged that the complainant remained for a week in the hospital and further he has done the operation free of cost without charging single farthing. Since the complainant has completely ignored the directive regarding dressing and medicine as advised by the attending Physician/Surgeon, as a result, complications developed with infection and hence there has been no deficiency in rendering the medical service to the complainant.

Learned Counsel appearing on behalf of the appellant has challenged the order mainly on the ground that all precautions both pre and post operation have been taken by the appellant. The patient was discharged from the clinic on the next day of operation and the complications developed later because of the negligence on the part of the complainant himself in not taking the medicine as advised by the doctor.

IN opposition, however, learned Counsel appearing for the complainant/respondent supported the order passed by the District Consumer Forum and further submitted that the complainant has spent huge amount over his treatment. The operation was performed in haste without conducting necessary pathological tests. Neither the blood sugar nor the blood group of the complainant was examined which ultimately proved fatal and the complainant has become permanently handicapped, being not capable of earning his livelihood. Now he has to depend throughout upon the support of others. It is further submitted that since the complainant has sustained fractured injury to the left knee, even then, no X-ray was taken before performing the operation. IN order to ascertain the factual aspect of the matter we called for the lower Court records vide order dated 29.7.2003, paragraph 3 of the order reads as under : "The principal question which requires to be answered in this appeal is as to whether the complainant being a patient was operated upon after necessary blood report. If not, whether it amounts to deficiency on the part of the doctor in rendering medical service to the patient. Neither the complainant is appearing nor the appellant is in a position to produce the pathological report. Let the LCR be called for from the District Forum, Deoghar, wherein alleged to have been filed all relevant documents including the blood report. Put up on 18.8.2003. Meanwhile, record must be sent. Let a copy of this order be faxed to the District Forum, Deoghar forthwith for compliance." Pursuant thereto the lower Court records were received and the same was examined by the Counsel for the appellant. From the scrutiny of the lower Court records, it transpires that the blood report of one Ajay Kumar Singh showing his blood group as ''O'' Positive and the blood group of the complainant was ''B'' Positive as per report dated 27.10.1996.

THE learned Counsel for the complainant submits that no blood test of any kind was taken. THE doctor has not suggested for such test at any point of time and the alleged report has been brought on record in order to thwart the rightful claim of the complainant. THE blood report showing ''B'' Positive of the complainant was alleged to have been referred to Dr. Bhushan by the appellant, but the appellant doctor himself has categorically stated in his evidence that he has not suggested for any such blood test. THE deposition of the complainant is on record. We fail to understand as to why the blood report of one Ajay Kumar Singh was brought on record who is not, in any way, related in the instant proceeding. THE appellant Surgeon himself has stated in his evidence that he has not suggested the complainant for any blood test. In that view of the matter, the so-called blood report of the complainant cannot be relied upon as genuine one. Admittedly neither X-ray was taken nor blood sugar was tested before performing the operation. It is true that there is distinction between the mistaken medical treatment and negligent treatment. The mistaken treatment will not be considered as medical deficiency and, as such, will not be the subject matter of scrutiny by the Consumer Court. However, the professional can be held guilty if it is found negligent treatment on their part. In the instant case without going into other aspects of the matter, it has been established beyond all reasonable doubts that the patient, suffering from fractured injury resulting accumulation of puss, was operated upon without X-ray and blood report, including preliminary investigation regarding health of the patient before performing such operation. It is first and foremost duty of the professional to examine the X-ray report including the blood sugar as well as the blood group before performing the operation but the case, in hand, goes to show that without preliminary pathological test and/or X-ray report, the operation was performed which on the face of it amounts to negligent treatment on the part of the operating Surgeon. I am conscious of the fact that before finding the medical practitioner guilty of charges, there must be a positive evidence including expert evidence but in the instant case, admittedly, the operation was conducted without X-ray report as well as necessary pathological tests which are enough to hold the appellant Surgeon deficient in rendering the medical service to the complainant. The Apex Consumer Court has held that without necessary pathological tests if the operation is conducted amounts to deficiency in rendering the medical service on the part of the professionals. At present, I am not in a position to lay my hand on the aforesaid judgment of Apex Consumer Court but I have personally read the judgment which is exactly on the point in issue. We have heard the learned Counsels for the parties, perused the materials on record including the order under challenge. We do not find any illegality and/or infirmity in the order impugned. Accordingly, this appeal fails and is dismissed but in the facts and circumstances, there shall be no order as to cost.

BEFORE parting with the case, we direct the appellant to comply with the order of District Forum, Deoghar within three weeks from the date of receipt and/or production of a copy of this order failing which the complainant will be at liberty to execute the order in accordance with law including the remedy available under Section 27 of the Consumer Protection Act. However, in that event, the complainant will be entitled to interest at the rate of 18% p.a. from the date of this order till the date of realisation. Let a copy of this order be sent to the parties and/or their respective Counsels forthwith for needful. Appeal dismissed.