NEHRA vs SHALINI VIJ

-PETITIONER was the second opposite party before the District Forum, where the first respondent Smt. Shalini Vij had filed a complaint alleging medical negligence on the part of the petitioner and respondent Nos. 2 and 3.

UNDISPUTED facts leading to filing the complaint were that the complainant Smt. Shalini Vij was having high-fever for which she approached the second respondent Springdales Medical Centre for treatment on 23. 5. 2004, wherein she was advised to have ultrasound of her abdomen. The petitioner conducted the ultrasound of abdomen on 24. 5. 2004 and informed the complainant that she was having ''abscess'' of size 80x62x53 ml. on the ''left lobe of the liver''. It was the case of the complainant that when the third respondent Dr. Ratan, who is surgeon by profession, informed her that she has to be operated immediately, they decided to have a second opinion for which they went to Ganga Ram Hospital, where they were not admitted as there was no place and thereafter they went to Jaipur Golden Hospital, wherein, ultrasound of abdomen was conducted on 25. 5. 2004, which revealed that the complainant did not have any liver abscess, hence there was no need for any surgery or treatment. According to the complainant, this was the simple case of urine infection, which was diagnosed by the petitioner as a case of liver abscess, which was clearly wrong and contradicted by an ultrasound report taken only 24 hours from the first ultra sonography report carried out by the petitioner. It is in these circumstances, alleging medical negligence, a case was filed before the District Forum. The matter was contested by all the three opposite parties, namely, petitioner and respondent Nos. 2 and 3 before us. The District Forum after hearing the parties, allowed the complaint and directed all the three opposite parties before them, i. e. , petitioner and respondent Nos. 2 and 3 to pay compensation of Rs. 25,000 along with cost of Rs. 5,000 within 30 days failing which it was to carry interest @ 8% p. a. till the date of payment. Aggrieved by that order, an appeal was filed before the State Commission, who after hearing the parties, while holding the second and third respondents before us, not guilty of any medical negligence, held the petitioner Dr. Nehra, the radiologist, alone responsible for giving wrong report and was made liable him to pay the amount awarded by the District Forum, hence this revision petition before us by the petitioner. We heard the learned Counsel for the petitioner at some length and perused the material on record. We have carefully gone through the report relating to the complainant of ultra sonography prepared by the petitioner. The finding is "liver abscess left lobe". We have another report of Jaipur Golden Hospital dated 25. 5. 2004, whereas finding given in the form of impression is "essentially normal study. Please correlate clinically". A case is made out before us, that the radiologist gave the report. It was for the Consultant Physician, in this case, the Gynaecologist, who should have correlated the ultrasound report with clinically findings. We are afraid that we see no merit in this contention of the petitioner, for the simple reason that the petitioner is trying to mix up the two reports. The ultra sound report given by the petitioner is an unqualified one stating clearly and unequivocally "liver abscess left lobe". It is only the Jaipur Golden Hospital, where they use the words, "please correlate clinically". The petitioner cannot take advantage of the advice rendered by some other radiologist.

It is also the case of the petitioner that , "the images obtained by the scan conducted by the petitioner could have been caused by presence of gas or fluid collected in parts like, the stomach, lesser sac, large and/or small intestine close to the liver. . . . ". There is no such entry in the report given by the petitioner. This is a clear case of an after thought.

IT was also the case of the opposite party that at no point any surgery was advised, only aspiration test from small needle was advised along with other medical examinations under the guidance of second ultrasound. We see on record (at page 25), a prescription written after the report of ultrasound was received. What has been advised is only a treatment, no further tests have been advised, in view of which we are unable to sustain this plea of the petitioner. It is also the case of the petitioner that no ''expert'' opinion was produced. Perhaps the petitioner over-looked the reply to the Appeal filed by the complainants before the State Commission, [pages 100-104 of the paper book] on which they relied upon and which is based upon the medical literature, which has not been rebutted. No evidence or literature is brought on record by the petitioner to meet the observations given before the State Commission by the complainant.

AFTER hearing the learned Counsel for the petitioner, we like to reproduce "halsbury''s Laws of England - Vol. 26 (3rd Edition) pages 17-18", which reads as follows: "23. Degree of skill and care required-The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest, nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what the law requires (d); a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way (d); nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men (e ). "

This principle has been well accepted and relied upon repeatedly by the Hon''ble Supreme Court, this Commission, House of Lords and others. We wish to specially rely upon the observations "neither the very highest nor a very low degree of care and competence judged in the particular circumstances of each of the case, is what the law requires". As rightly held by both the lower Fora, we were not expecting the highest, but, certainly not the lowest professional competence was expected from the petitioner. We are in no doubt that when a patient who goes to a physician or diagnostic or radiologist, does not expect a wrong diagnoses leading to further mental agony and tension. The very fact that the report of the petitioner about the abscess left lobe is contradicted by another report within 24 hours by another radiologist in another hospital, speaks volumes about the competence of the petitioner. In the aforementioned circumstances, the negligence is writ large on the face of it on the part of the petitioner, for which we are somewhat surprised that the District Forum and State Commission have granted a very insignificant and partly sum of Rs. 25,000 as compensation. Since the other party is not in appeal, we are not making any observation on the quantum of compensation.

IN the circumstances narrated above and discussion on the pleas taken by the petitioner before us, we see no merit in this revision petition, hence dismissed. Revision Petition dismissed.