GULAB SINGH vs Pgi

THIS appeal has been directed by the complainant against order dated 4.5.2005 passed by District Consumer Disputes Redressal Forum -II, U.T. Chandigarh, whereby his complaint was dismissed, leaving the parties to bear their own costs.

BRIEFLY stated the facts are that the appellant (complainant) is resident of Village Naina, Tehsil and District Kaithal (Haryana) and was suffering from pain and other ailments in his right ear. In the year 1992, he had consulted Dr. Rajesh Loomba at Ambala, who operated his right ear. After the operation, he felt relief in his right ear from the problem of headache and leaking of liquid from that ear. In the year 2002, he felt the same problem in the left ear and contacted Dr. Rajesh Loomba at Ambala, who after examination advised him to get better treatment at PGI, Chandigarh. Accordingly he visited PGI, Chandigarh and was examined by the doctors, who after examination, advised him that right ear was to be operated upon again and with that operation, his problems such as headache, loss of hearing of the left ear and facial palsy would be removed. It was further averred that he was admitted in PGI, Chandigarh on 31.5.2002 and was operated upon on 6.6.2002 for his right ear and was discharged on 7.6.2002 after the operation. He was called for recheckup by the doctors in PGI and he had been attending in time as and when called for.

IT was next averred that after 3 -4 days of the operation, he observed that after the operation, his right eye remained open while he was in sleep and water also leaked continuously from that eye and he experienced heaviness in his forehead and the ear remained almost wet. Consequently, he went to the PGI and reported the problems and the doctors gave 2 -3 stitches on the right eyelid and told that those stitches would be removed and was called on the next Wednesday for that purpose but those stitches were not removed and finally in the month of December, 2002 he was told that stitches would remain forever. He also complained that his left ear had again started giving discharge and he had experienced facial palsy but his repeated visits to the PGI did not show any improvement. His face after operation was disfigured as he had suffered partial paralysis of the face muscles. Although he spent huge amount on his treatment, yet his condition did not improve. With the facial palsy/disfigurement, defect in the eye and ear, he is not fit to get a Government job. This problem had occurred due to gross negligence of the doctors of PGI. It was further averred that he consulted specialists Dr. Grover of Grover Hospital, Chandigarh and Dr. S.K. Kacher, New Delhi and both the doctors told him that he had to live with all these ailments throughout his life because while operating his right ear, some veins leading to eye and of right cheek, had been damaged and except plastic surgery, there was no other treatment but he did not go for plastic surgery as the treatment of the face was very expensive and beyond his capacity. With these allegations, the appellant had claimed following amounts from the respondents jointly and severally: (i) Rs. 5 lac for pain and suffering and the expenses incurred by the complainant during the treatment and thereafter. (ii) Rs. 5 lac for disfigurement of face, right eye and the ears, and facial palsy. (iii) Rs. 5 lac as token compensation for loss of future earnings and permanent disability for the whole life and humiliation on account of loss of hearing, disfigurement which the complainant has to face throughout life.

RESPONDENTS contested the complaint and filed joint written statement. They took certain preliminary objections; that the complaint was not maintainable as the appellant (complainant) had failed to show as to what element of negligence was involved in giving treatment to him by respondent Nos. 2 and 3; that the complaint was bad for non -joinder of necessary parties as various doctors who had attended the appellant had not been made a party and further that the appellant had claimed exorbitant and disproportionate damages to the tune of Rs. 15 lac. On merits, they stated that the right ear of the appellant was operated by Dr. Rajesh Loomba at Ambala in the year 1992, but he did not disclose the type of operation performed by the doctor and what happened immediately after the operation. They next stated that the appellant had visited PGI along with OPD ticket No. 472094 and thereafter he was examined by Dr. Simhadhree (Senior Registrar, ENT Surgeon). The appellants diagnosis was Right Chronic Suppurative Otitis Media (herein referred to as CSOM) atticoantral type (which means unsafe) operated in 1992 with VII nerve (facial nerve) paresis (weakness) and left CSOM (safe type). Dr. Simhadhree found that right ear of the appellant was harbouring an unsafe disease which could cause some fatal complications like brain abscess or meningitis in future if early surgical treatment was not given. Accordingly, he advised eardrops and antibiotics for the disease of both ears and thereafter the appellant was examined by Dr. Ekambar Reddy (Senior Resident, ENT Surgeon) who advised and planned for right ear modified radical mastiodectomy (MRM). The documentation on OPD card showed that the appellant had already facial weakness and asymmetry at the time of registration in OPD. The general case sheet - O.P./2 was prepared by the doctors which revealed that the appellant had unsafe type of disease in right ear and a safe type of disease in the left ear and the case sheet reconfirmed the plan advised by senior doctors on OPD card. The progress sheet dated 31.5.2002 -O.P./3 recorded by Dr. Sudesh showed that the appellant had right side facial palsy and confirmed appellants plan of surgery on right ear. He was admitted in Nehru Hospital and was operated on seventh day of admission. They denied that no doctor had heard the appellants complaint during these seven days. They further stated that appellant had consented for the operation in writing and his consent was appended as Annexure O.P./4. They further stated that the surgeons had removed the disease around badly transgressed and diseased facial nerve as per surgical principle and obviated the grave future complications of an unsafe ear. His disfigurement of the face was already existing when he was examined by different doctors at the time of OPD examination. They denied that the operation of the appellant was carried in a negligent and carelessness manner but stated that his facial nerve was already damaged due to the disease and for this reason, his face was disfigured. They also denied that the appellant had suffered any disability on account of operation. With these allegations, they stated that there was no negligence on their part and as such complaint should be dismissed. Parties led their evidence by way of affidavits.

AFTER hearing Counsel for the parties, the District Consumer Disputes Redressal Forum -II, U.T. Chandigarh vide its order dated 4.5.2005 dismissed the complaint by holding it to be meritless and the parties were left to bear their own costs.

AGGRIEVED by the said order, the complainant has filed the present appeal. We have heard Counsel for the appellant Mr. Pankaj Chandgothia, Counsel for respondents Mr. Rajesh Garg and carefully gone through the file.

IT is an admitted fact that the appellant had some problem in the right ear and he was operated upon by Dr. Rajesh Loomba of Ambala. Later on, he developed some problem in his left ear and he visited Dr. Rajesh Loomba at Ambala Cantt in the year 2002 who advised him to get himself examined in the PGI for better treatment. It is also an admitted fact that the appellant was admitted in PGI on 31.5.2002 and was operated upon on 6.6.2002, and was discharged on 7.6.2002 after operation. It is further an admitted fact that he was again operated upon for his right ear, although, he had complained some problem with his left ear. It was found by Dr. Simhadhree (Senior Registrar, ENT Surgeon) that the appellant was patient of right Chronic Suppurative Otitis Media (CSOM) atticoantral type (which means unsafe) and he was operated upon in 1992 with VII nerve (facial nerve) paresis (weakness), and left CSOM (safe type). Further Dr. Simhadhree found that his right ear was harbouring an unsafe disease that could cause some fatal complication like brain abscess or meningitis in future if immediate surgical treatment was not given to him and as such he advised eardrops and antibiotics for the disease of both ears and then he was examined by Dr. Ekambar Reddy (Senior Resident, ENT Surgeon) who advised and planned for right ear modified radical mastiodectomy (MRM). OPD card further showed that the appellant had already facial weekness and asymmetry at the time of registration in OPD. Since the type of disease of left ear was safe and that of the right ear was unsafe and it was felt that if right ear was not operated upon immediately, then it could lead to some fatal complications of brain abscess or meningitis. For this reason, he was operated upon for right ear with his consent which had been recorded in writing as Annexure OP/4. No evidence has been led that he had developed permanent disfigurement of the face due to gross negligence of the doctors who had operated him for his right ear. The general case sheet -O.P./2 and progress sheet dated 31.5.2002 -O.P./3 showed that appellant was diagnosed to be having unsafe type of disease in right ear and safe type of disease in the left ear and he had already right side facial palsy and surgery on the right ear was conducted in the year 1992 with VII nerve (facial nerve) paresis (weakness).

THE appellant has stated in the complaint that he visited specialists like Dr. Grover of Grover Hospital, Chandigarh and Dr. S.K. Kacker, New Delhi who both told that while operating the right ear, some veins leading to eye and of right cheek had been damaged. The appellant has failed to produce their expert opinion in writing or some affidavits on their behalf suggesting that the damage had occurred due to the operation conducted by PGI doctors in the year 2002. He has also not examined any expert suggesting that while operating the right ear, some veins leading to eye and right cheek had been damaged and for this reason, his right eye remained open even while he was in sleep and this had led to his permanent disfigurement of the face and further his right eye sight and hearing capacity had been affected and he was unable to get some Government job. Counsel for the appellant contended that the appellant had given an application for appointment of a medical board comprising expert doctors from Government Medical College and Hospital, Sector -32, to arrive at a proper conclusion and further to give an opinion as to what negligence or mistake had occurred during the course of treatment of the appellant at PGI but that application was wrongly dismissed by the District Forum vide order dated 21.4.2005. The application had been rightly dismissed by the Forum because the appellant did not produce any expert opinion of the doctor which could prima facie suggest that disfigurement of the face of appellant was due to operation on his right ear conducted by PGI doctors in the year 2002 or that while operating his right ear, some veins leading to eye and cheek had been damaged. It has also not been ruled out that such damage might have been caused while he was operated upon by Dr. Rajesh Loomba in the year 1992, and for this reason, he did not again operate him when appellant visited him in the year 2002, but advised him to visit PGI. Moreover, there is no allegation that it was not accidental lapse on the part of PGI doctors but it was a gross carelessness or negligence on their part in conducting operation. The District Forum has stated in its order that there is sufficient material on record from which it could be concluded that the diagnosis of the disease of the appellant and opinion to conduct operation of the right ear were proper and reasonable. We concur with the aforesaid opinion. It was not for the respondent to prove that they acted with sufficient care and skill but it was for the appellant to establish medical negligence on the part of the respondents.

THE appellant has not examined the photographer who took photographs placed on record as Annexures A and B to substantiate his averment that Annexure A photograph was taken before operation performed by the respondents and photograph Annexure B was taken after the operation. There is no reason for the doctors of the PGI at the time of admission of patient to prepare wrong record regarding his past history of the ailments from which he suffered. OPD card prepared at the time of admission in PGI clearly establishes that he was suffering from facial palsy with presence of mass movements, etc.

THEREFORE , in view of the foregoing discussion, we hold that appellant has failed to prove that he suffered permanent disfigurement of his face, eye and ear due to the operation conducted on 6.6.2002 by the respondents negligently and carelessly. On the other hand, affidavit dated 19.1.2005 of Dr. Ajay Jain confirms that if he had not been operated upon, he would have developed unsafe ear disease to the extent of losing his life and the operation was done with due care and caution to save his life and ears. Thus, we hold that there is no force in the appeal and as such the same is dismissed and the parties are left to bear their own costs. Copies of the order be communicated to the parties, free of charge. Appeal dismissed.