Mahesh Mishra vs Ram Swaroop

THIS is an appeal by the opposite party to Complaint No. 1063/1994 from the order dated 27.7.1995 whereby the District Forum, Sri Ganganagar held the appellant guilty of medical negligence in the treatment of urinary track problem of the respondent and directed him to pay a sum of Rs. 10,000/- as compensation for mental agony and physical discomfort and Rs. 5,000/- as cost of litigation to the respondent.

RELEVANT facts are these : The appellant is a doctor by profession and being an urologist treats patients, suffering from urinary problems, at his Clinic/Nursing Home, known as Mishra Nursing Home, Rai Singh Nagar, Distt. Sri Ganganagar. The respondent-complainant was, at the relevant time, working as an IVth Class Govt. employee at Tehsil Rai Singh Nagar. On 23.11.1994 the respondent filed his complaint before the District Forum with the allegations that on 22.2.1994 he consulted the appellant at his Nursing Home in respect of complaint of itching in urinary track and difficulty in passing urine, that the appellant, without conducting any sort of tests and checking, advised him to get himself operated for his problem without loss of any time otherwise his problem would get aggravated, that the appellant, acting negligently in conducting the minor operation of his urinary track, aggravated the problem and his urine stoped passing, that the apellant conducted second operation and also inserted a tube in the urethra but the urine did not pass through the urethra instead it flowed through the stitches of the wound that it was after conducting operations for two times that the appellnat got his urine and blood tested and after keeping him under observation for 5 to 10 days discharged him from his Nursing Home, that since his urinary complaint could not be removed he again consulted the appellant on 11.3.1994 but this time the appellant advised him to consult Dr. Kailash Floor of Government Hospital at Sri Ganganagar, that he consulted Dr. Floor on 12.3.1994 and remained as an indoor patient in his ward for 18 days but he was not cured of his disease, that Dr. Floor referred him to the Sawai Man Singh Hospital (Government) at Jaipur where he was operated upon twice, once on 16.4.1994 and thereafter on 6.5.1994, and then got relief. The respondent alleged deficiency in service on the part of the appellant and claimed compensation for mental agony, cost of medicines and cost of litigation totalling at Rs. 1,09,581.52.

The version of the case as per appellant was that on 22.2.1994 when the respondent had consulted him, he was in great pain due to stoppage of his urine, that in order to relieve him of his painful condition, the appellant performed cystoscopy on him with his consent and then on examination of the respondent the appellant came to hold the opinion that the complaint of the respondent could not be removed without performing a minor operation of the urinary track in order to enable him to urinate and it was after such operation that the respondent was relieved of his pain. The appellant specifically asserted that on examination of the documents with the respondent and on interrogation, the appellant had come to know that about 8 years back the respondent had been operated upon at a Hospital at Chandigarh for problem in his urinary track and at that time a tube had been inserted in the urinary track which remained there for sufficiently long time and caused "stricture urethra", which led to the stoppage of urine. The appellant averred in his reply that such a material fact was not disclosed by the respondent to him and could be known by him in the course of cystoscopy and the minor operation performed thereafter. It was asserted that the appellant had taken all reasonable care and caution and used his best of professional knowledge and expertise in the treatment of the respondent and the complaint was an unfair and dishonest attempt to malign him professionally.

THE District Forum, however, held that the appellant rendered deficient services to the respondent in his treatment of his ailment and made its order in the manner stated above. We heard the parties at sufficient length and carefully examined the material available on the record of the Forum. In the facts and circumstances of the case and in the light of the material on the record we are unable to subscribe to the findings recorded and conclusions arrived at by the Forum in this case.

IT could not be disputed before us that the appellant was having good knowledge of and experience in the branch of surgery he was practising in at his Nursing Home. Undisputedly the appellant is a Master of Surgery having specialised in urology and is thus medically well qualified to treat the patients suffering from urinary problems. IT is also not disputed that the respondent was an old patient of urinary track problem and had been treated for the same at a Hospital in Chandigarh, years ago before approaching the appellant on 22.2.1994 at his Nursing Home at Rai Singh Nagar. The respondent did not deny the fact of his having been operated upon at Chandigarh for the same problem, by filing rejoinder to the reply of the appellant. Thus there was no denial to the fact that when the respondent had consulted the appellant on 22.2.1994, he was in great pain due to the stoppage of urine. Such stoppage of urine could have resulted from "stricture urethra". Stricture in the passage was, in all probability, likely to be caused by leaving for a long time the tube fixed in the lower part of abdominal area to facilitate the passing of the urine. Then the respondent had got himself treated for his problem at the Government Hospital, Rai Singh Nagar before reaching the appellant. On being consulted by the respondent, the appellant had carried on cystoscopy test and it was after conducting such test that the appellant came to form the opinion that in order to relieve the respondent of his restless condition of pain, caused due to stoppage of urine, a minor operation had to be performed. IT all shows that the appellant had acted in a manner in which a professionally qualified medical advisor is reasonably expected to act in the interest of his patient. First he carried on cystoscopy test, examined the record of the previous treatment of the respondent by other professionals and after knowing of the "stricture urethra" the appellant performed the required minor operation on him in order to cure the respondent of his ailment. The material on record fully shows that the appellant had taken all reasonable care and caution in treating the respondent of his disease not only before conducting cystoscopy test and thereafter performing the minor operation but also rendering post operation services to him. IT is respondent''s own version that after discharge from the Nursing Home of the appellant he had gone to his village and it was after some time that the respondent had again approached the appellant with his continued pain in urethra. This time the appellant had referred the respondent to Dr. Kailash Floor at Government Hospital at Sri Ganganagar who, in his turn, had to refer him to S.M.S. Hospital at Jaipur. The conduct of the respondent in again going to appellnat''s Nursing Home after the operation and the conduct of the appellant in honestly advising him to consult Dr. Kailash at Government Hospotal, Sri Ganganagar show that the appellant had acted in good faith with no lack of care and caution on his part in rendering professional services to the respondent. The respondent had himself acted according to the sincere advice given by the appellant to him. Had he noticed any negligence or want of care and caution on the part of the appellant at or in the course of treating him at his Nursing Home at the previous occasion, the respondent would not have gone again to him to seek his advice, but only to lodge the complaint, which he did not Above all, Dr. Kailash Floor of the Government Hospital at Sri Ganganagar has categorically stated on oath in his statement recorded by the Forum that when the respondent had consulted him and got treatment in his unit, he was in good condition and that no complaint regarding deficiency in service by the appellant was ever made by the respondent or his men to him. The self-serving statements in the affidavits of the respondent himself and of his kith and kins and friends do not take away the worth of the statement of the appellant in his affidavit and the sworn testimony of Dr. Kailash in his statement recorded by the Forum. To sum up the discussion, we hold that the respondent had failed to prove any deficiency in service on the part of the appellant in the matter of his treatment for urinary problem. On the contrary the appellant had, by positive and satisfactory evidence, proved that he had taken reasonable care and caution in the treatment of the respondent for his disease and that he had rendered quite efficient, qualified and effective service to him to the best of his ability and knowledge of subject and had acted in good faith in the interest of the health of the respondent.

IN the result, the appeal succeeds and is allowed. Consequently the impugned order is set aside and the complaint of the respondent dismissed with cost on parties throughout. Appeal allowed.