G S JHALA vs Pawan Kumar

-THIS appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act of 1986") has been filed by the appellant (opposite party No. 2 in the original complaint) against the majority order dated 28. 1. 1999 passed by the learned District Forum, Ajmer in Case No. 139/1996 by which the complaint filed by the complainant-respondent No. 1 under Section 12 of the Act of 1986 was allowed in the manner that the appellant was directed to pay to the complainant respondent No. 1 a sum of Rs. 20,000 as compensation for medical negligence and Rs. 1,000 as cost of litigation.

IT may be stated here that on 16. 2. 1996, the complainant respondent No. 1 Pawan Kumar had filed a complaint under Section 12 of the Act of 1986 before the District Forum, Ajmer against the present appellant (opposite party No. 2) and respondent No. 2 Administrator, St. Francis Hospital, Ajmer (opposite party No. 1) with the following allegations: (i) That on 1. 5. 1995, the complainant respondent No. 1 was having some pain in stomach and, therefore, he approached the St. Francis Hospital, Ajmer (respondent No. 2) where he was treated by the present appellant after charging necessary fee.

(ii) That after medical examination and checkup, the appellant informed the complainant respondent No. 1 that he was suffering from appendix for which the appellant advised for immediate operation and demanded a fee of Rs. 2,500 for such operation.

(iii) That the complainant respondent No. 1 was got admitted in the hospital (respondent No. 2) on 1. 5. 1995 where he remained up to 17. 5. 1995 and the operation of appendix was done on 7. 5. 1995 by the appellant Dr. G. S. Jhala, who was Surgeon in the hospital (respondent No. 2 ).

(iv) That after operation, the complainant respondent No. 1 was not feeling well and he felt pain in stomach as puss was coming out from the place where the operation was done by the appellant.

(v) That thereafter, the complainant respondent No. 1 again visited the hospital (respondent No. 2) where his dressing was done, but even then he did not feel better.

(vi) That thereafter, on 24. 8. 1995, the complainant respondent No. 1 contacted Dr. Ashok Meghwal, Asstt. Professor and Surgeon, J. L. N. Medical College and Hospital, Ajmer, who advised for U. S. G. of upper abdomen and the same was got done by the complainant respondent No. 1 from Medi Scan Ultrasound Centre and in the report of U. S. G. of Upper Abdomen dated 24. 8. 1995, it was reported that an echogenic lesion measuring 13 x 5 m. m. was seen in the sinus cavity approx. 5 cm. away from the skin surface, it is casting acoustic shadow.

(vii) That after seeing the above report, Dr. Ashok Meghwal found that there was Retained Foreign Body Right Iliac Fosa.

(viii) That thereafter, complainant respondent No. 1 was admitted in J. L. N. Hospital, Ajmer in Dr. J. K. Yadav''s Unit (Surgery Unit-II) on 26. 8. 1995 where he was operated again on 28. 8. 1995 and he was discharged on 7. 10. 1995.

(ix) That after operation, Dr. J. K. Yadav came to the conclusion that though complainant respondent No. 1 was operated for appendix, but at that time, gauge piece was left as a result of which there was sinus and this sinus tract was sent for biopsy to Agrawal Clinic and Diagnostic Centre on 31. 8. 1995.

(x) That as per Histo Pathology Report from Agrawal Clinic and Diagnostic Centre, there was chronic inflammatory granulation tissue with foreign body type of reaction.

(xi) That since gauge piece was left in the body of the complainant respondent No. 1 when he was being operated by appellant, therefore, for that, medical negligence on the part of the appellant, the present complaint was filed.

A reply was filed by the appellant admitting the fact that complainant respondent No. 1 was operated by him, but he has denied the allegations of medical negligence. He has replied that he has not committed any medical negligence in performing operation of appendix of complainant respondent No. 1. Hence, it was prayed that complaint be dismissed.

A reply was also filed by the respondent No. 2.

AFTER hearing the parties, the learned District Forum, Ajmer through impugned majority order dated 28. 1. 1999 allowed the complaint of the complainant respondent No. 1 in the manner as indicated above holding inter alia- (i) That when the complainant respondent No. 1 was being operated for appendix by the appellant, a piece of gauze was left there, as a result of which, there was sinus cavity and the same was removed and taken out by second operation conducted in Dr. J. K. Yadav''s Unit, J. L. N. Hospital, Ajmer.

(ii) That no doubt in the operation notes of J. L. N. Hospital, Ajmer (Dr. J. K. Yadav''s Unit), there was no mention of the fact of gauze, but after operation, it was clearly opined by Dr. J. K. Yadav while sending the sinus tract for biopsy to Agrawal Clinic and Diagnostic Centre that when the complainant respondent No. 1 was operated for appendix, at that time, gauze piece was left resulting in sinus.

(iii) That while conducting operation of appendix of complainant respondent No. 1, the appellant has committed medical negligence as he had not taken due care and caution and because of mistake of the appellant, the complainant respondent No. 1 has to undergo for second operation.

Aggrieved from the said majority order dated 28. 1. 1999 passed by the learned District Forum, Ajmer, the appellant has preferred this appeal.

WE have heard the learned Counsel appearing for the parties and gone through the entire materials available on record. So far as the medical negligence on the part of the appellant is concerned, it may be stated here that from the materials and evidence available on record especially the observations and conclusions made by Dr. J. K. Yadav on 31. 8. 1995 while sending the sinus tract to Agrawal Clinic and Diagnostic Centre for biopsy, it is evident that when complainant respondent No. 1 was being operated for appendix by the appellant on 7. 5. 1995, a gauze piece was left resulting in sinus and the law is very much clear on the point that if any foreign body is left inside while operating, that may be in the shape of gauze piece, that would be a case of medical negligence on the part of doctor conducting operation as he had not taken proper care while closing the operated area and had left mopping gauze piece inside the wound. Therefore, that aspect would be covered under the term "medical Negligence". Thus, the findings of the learned District Forum holding the appellant guilty of medical negligence cannot be said to be erroneous or illegal or perverse and rather they are based on correct appreciation of entire materials and evidence available on record. Hence, no interference is called for with the findings and conclusions of the learned District Forum and this appeal deserves to be dismissed.

APART from this, the compliance of the impugned majority order of the learned District Forum has already been made and from that point of view also, this appeal has become infructuous and liable to be dismissed. Accordingly, this appeal filed by the appellant is dismissed. Appeal dismissed.