Imran Khan vs KAMAL ASHRAF

THIS complaint has been filed with a prayer for directing the O.P. to pay a sum of Rs. 7,50,000 only to the complainant by way of medical reimbursement and compensation for mental agony and harassment caused to the complainant due to medical and professional negligence of the O.P.

THE brief fact of the case is that complainant is a businessman having his business in the name and style of AL-Tabinda Enterprises, Bombay. He along with his brother is original inhabitant of Aurangabad, Bihar. THE complainant with his family was in Patna on 8.7.1999. He felt pain in his abdomen and consulted O.P.-Dr. Kamal Ashraf, Senior Surgeon of Patna who runs his clinic at S.P. Verma Road, Patna. THE doctor prescribed several tests and thereafter suggested to undergo an operation. Accordingly, he was operated in the clinic of O.P. for cholecystectomy and appendicectomy on 12.7.1999 and paid Rs. 10,000 besides other necessary expenditure on medicine, etc. It is alleged that after the operation, the complainant developed some complication, stool, and pus started coming through the root of operation. THE complainant came to know that the facility of leaucopy is not available in the clinic of the complainant; therefore, he negligently cut the colostral intestine. THE O.P. deliberately kept the complainant in dark and never communicated this negligence on his part while performing his operation. It is alleged that O.P. advised the complainant for another operation by open surgery, which was done, on 24.7.1999 but the condition of the complainant further deteriorated and two days thereafter the pus and stool started coming out again from the root of operation. Due to spread of stool in the body, several complications developed and he was in acute pain. THE doctor was apprised of the condition of the complainant by his family members on several occasions but he took little interest and only provided some sedative. THE complainant''s brother requested the O.P. to refer his brother to some other clinic or before some more qualified doctors but he avoided and did not refer him to any other clinic. On the other hand, he advised him for third operation. THE complainant thereafter consulted another Senior Surgeon, Dr. A.P. Singh of Patna who advised him not to go for third operation and rush to Appollo Hospital, New Delhi. On several requests and when the condition of the complainant further deteriorated the O.P. referred to him to Appollo Hospital, Delhi. THE complainant has produced the relevant papers including prescription of O.P., which have been marked Annexure-1 series. THE complainant alleged that he incurred expenditure of about Rs. 70,000 in his treatment. THE complainant went to Apollo Hospital, Delhi on 3.8.1999 by flight. THE tickets are Annexure 2 series. On 4.8.1999 Dr. Pradeep Kumar operated the complainant under emergency condition and about two liters of pus from his body and intestine were removed. A colostomy bag was attached for passing out stool. He remained admitted in the Appollo Hospital for about 15 days and after discharge, he remained at New Delhi for long period and regularly attended the Appollo Hospital for check up and dressing (Annexure-3 series). At Appollo Hospital, he has to incur an expenditure of more than Rs. 1,25,000. THE allegation of the complainant is that he suffered loss in business besides mental, physical and economic harassment and all these happened due to negligence and deficiency on the part of the O.P. who wrongly performed his operation and accordingly he filed the complaint with the claim as detailed in the complaint petition. O.P. appeared and filed written statement. His main contention is that he is qualified and eminent surgeon of the State and in the field of surgery since several years. The entire allegation of the complainant against O.P. are imaginary and to malign him to extract money. The prescription of O.P. mentions and discusses every detail of the ailment and the line of treatment/manner of operation but the complainant has withheld the prescription with ulterior motive and not enclosed with the complaint petition. From the complaint petition, it is clear that there is no specific allegation of professional negligence against the O.P. All the allegations are vague and without any material in its support. The O.P. has no knowledge about the details of the operation performed by him to the complainant nor he can verify whether he referred him to Apollo Hospital, New Delhi because there is no paper on record in support of these allegations. The O.P. has no knowledge about the treatment of the complainant at Delhi and also of his ailment. From the Annexure enclosed by the complainant it is not clear that doctors at Appollo Hopsital had mentioned anywhere that complainant was performed operation earlier and there was any defect or negligence in his earlier operation. The report of the Appollo Hospital does not mention that there was any error committed by the O.P. in the alleged operation of the complainant. Therefore, the allegation of the complainant against the O.P. is only imaginary and not supported by any medical evidence or any paper.

After filing of the above statement on behalf of the O.P. some papers including the prescription granted by O.P. and some pathological reports have been filed which are Annexure-1 series. Thereafter a written argument was filed on behalf of the O.P. and it was submitted that O.P. is a renowned general surgeon and has conducted such operation in thousands. He has conducted the operation of the complainant as per medical norms after examining the patient closely and clinically and has issued prescription, which mentions with regard to different dates and kind of operation and also the process which find place detailed in the prescription dated 9.7.1999. The operation was "cholecystectomy and appendectomy". The operation was done through minilap process, which requires slight incision. The aforesaid operation (laproscopic surgery) was not available at the relevant time in the clinic of the O.P., i.e., why the change was taken for minilap surgery. The complainant was operated and puts in the suture but healing of the wound depends on many conditions and it is not in the hand of the surgeon. It depends upon the general condition of the patient and other factors. So, far as the complications are concerned it can develop due to many factors and even after laproscopic surgery. In many cases while performing through laproscopic procedure the performing surgeon finds that some complication has developed and thereafter it changes to open surgery because the scope of laproscopic surgery is limited. It was further submitted on behalf of the O.P. that complainant''s complications was under control during the treatment by the O.P. but he himself insisted that he will go to Delhi for better treatment and, therefore, he was referred to go there. The complainant consulted Dr. A.P. Singh at Patna and he advised him to go to Delhi is not supported by any prescription or paper on record. It was submitted by the O.P. that cholostomy is a procedure followed by conservative surgeon to let the tissue oedema subside and healthy capacity of the patient improvement and it is done again after a gap of few weeks or months. It is not a permanent affair. The complainant has submitted himself to the O.P. second time for undergoing such operation. He had enough time between the first operation and the second operation and if he had any grievance against the O.P. he should not have asked the O.P. to perform the second operation. The O.P. had not mentioned about laparoscope''s operation on the prescription. If it had been mentioned, in that case the allegation could have been levelled against the O.P. that after prescribing for such operation he operated through conservative method. The complainant was getting treatment in his clinic after his operation for infection and it has gradually subsided but suddenly he decided to go Delhi for which O.P. made no objection. Therefore, there was no deficiency or negligence on the part of the O.P. in performing the operation of the complainant. There is no legal evidence or expert opinion to show that any negligence was committed by the O.P. in the said operation. The entire allegation is motivated and to tarnish the image of the O.P. who is a senior surgeon of Patna.

WE have carefully gone through the pleadings and the documents filed on behalf of both the parties. The admitted fact is that complainant was examined by the O.P.-Dr. Kamal Ashraf on 9.9.1999 vide Annexure-1 and he was advised several pathological and other test and thereafter he was operated upon of cholecyslectomy and appendicetomy. As per O.P. the operation was done through minilap process which requires slight incision. Leproscopic surgery was not available in the clinic of O.P. on the relevant date, hence he adopted minilap surgery. The operation was performed satisfactorily as per norms. The patient had no other problem but the healing process was delayed which depends on many factors. The patient was recovering well in the clinic of O.P. but he became in-patient and pressed the O.P. to refer his case to Delhi for which O.P. had no objection and he willingly advised and referred him to go to Delhi. There is nothing on record to show that Dr. A.P. Singh was consulted by the complainant and he referred him to New Delhi. The complainant went to Delhi and got himself admitted in Appollo Hospital where he was treated and after recovery he returned back to Patna. From the surgical and pathological report of the Apollo Hospital dated 27.11.1999 it is clear that on the date of his examination the clinically diagnosis was "ileostomy with Hartman''s procedure. Reversal done now with end-to-end anastomosis and in the conclusion portion it is mentioned that "pouch-acute on chronic inflammation. Ileoslomy-mild chronic inflammation." Therefore, these facts make it clear that complainant was first admitted and operated in the clinic of O.P. No. 1 and thereafter he went to Appollo Hospital on 23.11.1999 and his report dated 27.11.1999 mentions the above fact. The point for decision in the case is that complainant''s allegation is that since facility of laproscopic surgery was not available in the clinic of O.P. No. 1, therefore, he negligently cut the clostoral intestine and O.P. deliberately kept the complainant in dark and never communicated this professional and medical negligence alleged to be committed by the doctor at the time of performing the operation have been proved by the evidence on record.

THIS allegation of the complainant is serious against the O.P. The O.P. has denied this allegation and it was admitted on his behalf that allegation of performing the operation by him negligently and carelessly and of cutting the clostoral intestine is altogether a false allegation without any substance and without any evidence. It is settled law that a charge of professional negligence against a medical man being serious, it requires the proof in support of the charge must be correspondingly greater. Lord Denning in his judgment of Hucks v. Cole, (1968) 118, New Law Journal page 469, held as follows : "a charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against a driver of a motor car. The consequences were far more serious. 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, thing sometime went amiss in surgical operation or medical treatment. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure, or for an error of judgment. He was not liable for taking one choice out of the two or for favouring one skill 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 or inexcusable. From the perusal of the complaint petition we have gathered that there is no allegation of the complainant that O.P. is not a competent and qualified doctor. He has not alleged that O.P. adopted the procedure of operation which was foreign to the medical science for such ailment. His only allegation is that he performed the operation negligently, carelessly and cut the clostoral intestine negligently. The above landmark judgment of Lord Denning has been followed in several judgments including by the Apex Court. In the case of Dr. Laxman Balkrishna Joshi v. Dr. Triambak Bapu Godbole, AIR 1969 SC 128 the Hon''ble Supreme Court held that a doctor is not liable for negligence because someone else of better skill and knowledge would have prescribed a different treatment or operated in different way, nor is he guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical men skilled in that particular art although a body of adverse opinion also existed among medical men. The contention of the complainant is that O.P. did not perform his operation by leproscopic method but performed the open surgery and that also negligently. The O.P. has stated in his written statement that leproscopic method of surgery was not available in his clinic at that time and such operation was regularly performed through open surgery. He did the surgery under minilap method. The complainant has not produced any evidence of medical expert or from any medical journal that the kind of surgery performed by O.P. was not prevalent surgery for the ailment of the complainant. From the report of the Appollo Hospital on which reliance has been placed by the complainant as referred to above we do not find a word mentioned in it that the earlier surgery performed by the O.P. on the complainant was defective or some error was committed by O.P. in performing the surgery which was responsible for the subsequent complication to the complainant.

FROM the prescription of the O.P. (Annexure-1) it is clear that he is a qualified doctor (MS, FRCS) and has long years of experience in his field. The O.P. has stated that complainant had developed some infection after the operation, which is not unusual, and it depends on many factors. The complainant was being treated properly for this infection in his clinic but in the meantime, he insisted for going to Delhi and he was allowed to go Delhi by the O.P. FROM the facts mentioned above, and in view of the admitted fact of the case, we would like to examine the legal position on the basis of the facts on record. FROM the decisions referred to above it is clear that obligation and duties of the medical practioner is to do his duty according to his ability and it is open for him to adopt one of the norms of treatment/operation which is acceptable in the medical science. FROM the facts on record, it is amply clear that O.P. has adopted the line of open surgery to the complainant, which was an accepted line of treatment under the condition when he performed the operation. Not performing the operation by leproscopic method does not amount to negligence because this method of surgery was not available in the clinic of O.P. and this fact was known to the complainant at the time of surrendering for operation. In the prescription of O.P. (Annexure-1) it is not mentioned that he had adopted leproscopic method or there is no evidence on record adduced by the complainant that he was given impression by O.P. that he will operate him under this method. If a patient comes for consultation to a surgeon as in this case, he owes a duty to the patient to use due caution in undertaking the treatment and he owes a duty to the patient to use diligence care, knowledge, skill and caution in administering the treatment. There is nothing on record or there is no evidence of any expert to show that O.P. did not administer the treatment with due care and skill and he performed the operation negligently. The settled law on the point of medical negligence is that law requires a fair and reasonable standard of care and competency. This standard must be reached in all the matters above mentioned. After adopting due care and caution, if something goes wrong like infection on the operated part as in this case, that would not amount to a diligent, incompetence and negligence in duty. With regards to the cases where in competency is alleged it is only necessary to show that unqualified practitioner cannot claim to be measured in lower standard than that which is below to a qualified man. The law requires that evidences are to be judged to distinguish between the qualified and unqualified man. In this case, the question of unqualified doctor does not arise because there is no such allegation of the complainant. On the other hand, the evidences on record adduced by O.P. on affidavit and as per perusal of Annexure-1 it is proved beyond doubt that O.P. is a qualified surgeon of long standing in his field. We have not found any evidence on record that while performing the operation O.P. carelessly cut the colostral intestine. This is only an allegation on behalf of the complainant without any proof.

NEGLIGENCE on the part of a doctor has been defined in Halsbury''s Law of England, Volume-26 at page 17 whereas it is held that degree of skill and care required by a doctor must be reasonable degree of knowledge and must exercise a reasonable degree of care. Neither a very highest, nor a very low degree of care and competency judged in the light of the particular circumstances of each case, is what the law requires."A person is not liable in negligence because some one else of better skill and knowledge would have prescribed different treatment or operated in a different way, nor is he guilty of negligence if he acted in accordance with the practice accepted as proper by a reasonable body of medical men skilled in that particular art although a body of adverse opinion also existed among medical men." We cannot accept this contention of the complainant that O.P. is liable for negligence because he did not adopt the better skill and knowledge in performing his operation because there is no medical proof in this support. We are also not in a position to accept this contention of the complainant that he was treated in a better and skilled manner in Appollo Hospital in New Delhi and he was cured. Therefore, it does not amounts that O.P.''s line of treatment including operation was negligent and it amounts to deficiency in service. The law only requires that the operation performed by O.P. was an accepted form of practice in the medical science and he did it with best of his knowledge and skill. The result of the operation may be good or bad which is not a criteria to judge whether the operation was done negligently and carelessly or with care. We cannot for a moment attempt to define in vacuo the extent of a surgeon''s duty in an operation beyond saying that he must use reasonable care nor can be imagined anything more disastrous to community than to leave it to be judged by the facts and circumstances on record. We have carefully scrutinized all the facts and material on record and the documents filed on behalf of the parties. There is nothing on record nor there is iota of evidence to prove the allegation of the complainant that O.P. performed the operation negligently and he cut his colostral intestine while performing the operation, which amounts to deficiency. Nowhere in the report of Appollo Hospital, it is mentioned that while performing the operation by O.P. the complainant''s colostral intestine was cut. Thus, only it is imaginary allegation of the complainant without any expert evidence to prove it. The settled law on this point is that in order to decide whether it is a case of negligence or not it is the bounded duty of the complainant to prove this fact by adducing very hight standard of evidence including the evidence of expert in that field who can only say that operation conducted by the O.P. was performed not properly and carefully but negligently. Against the background of the circumstances and the facts on record proved beyond doubt that complainant''s allegations have not been proved by any evidence as required under such cases. The O.P. cannot be held guilty of such failure as alleged by the complainant because the complainant had some sufferance after the operation conducted by the O.P. does not lead to the conclusion that operation was conducted negligently by the O.P.-Doctor.

In view of the position explained above and after considering the facts and law as involved in this case, in our opinion the complainant failed to prove the allegation of negligence and deficiency in service against the O.P. beyond doubt. Therefore, we do not find merit in this complaint petition, which is accordingly dismissed. However, considering the facts of the case, we are not bothering the complainant with cost and leaving the parties to bear their respective cost of litigation. In the result, the complaint is dismissed. Complaint dismissed.