PRABHA RAWAT vs DEEPTI SRIVASTAVA

-AGGRIEVED and dissatisfied by the order of the Maharashtra State Consumer Disputes Redressal Commission dated 2. 11. 2001, the complainant has filed this appeal before us. The operative portion of the State Commission''s order reads as follows: "on the basis of facts recorded by us and the evidence produced before us by the respective parties, we have come to the irresistible conclusion that there is nothing to establish that the surgery performed on the complainant by opposite party No. 1, was a failure or that it damaged the condition of the complainant due to a lack of reasonable care judging from the established standards of medical profession at the time it was performed. Even from the opinions of experts produced by the complainant, this does not become obvious. Hence there is no satisfactory evidence before us of any deficiency in service on the part of opposite party No. 1, either in performing the surgery or in rendering adequate care and treatment during the post-operative period. We are of the view that there is no liability whatsoever on the part of opposite party No. 2 for any damages or compensation on any count whatsoever. The complainant therefore is not entitled to get any relief under the law. The complaint therefore stands dismissed and the parties should bear their own cost under the circumstances of the case. "

Case of the Complainant

THE complainant is a qualified surgeon holding degree of Master of General Surgery and Post-graduate training in Endoscopic Surgery and Physical Medicine/rehabilitation. From 3. 12. 1984 complainant due to Bhopal Gas Tragedy had been living on medicines for his asthma which was well-controlled. On 6. 4. 1995 when the complainant was at Bombay he had severe pain in chest and was shown to Dr. F. G. Udwadia at Breach Candy Hospital where he was diagnosed as a case of Ischaemic, heart disease and was on medical treatment for about two months. On 8. 6. 1995 he consulted Dr. G. B. Parulkar who got angiography done at Cumballa Hospital and was diagnosed as having coronary arterial obstructive disease having 50% to 90% stenosis of the coronary arteries. On 13. 6. 1995 he met Dr. Anil Sharma in his chamber when Dr. Pawan Kumar came and told about his credentials in performing heart surgery. He was admitted to Hinduja Hospital on 7. 7. 1995 after depositing prescribed amount of Rs. 85,000. On 10. 7. 1995 Dr. Pawan Kumar performed surgery and he was brought back to the ward from intensive therapy on the fourth day. The patient suffered severe pain in the chest and fever from 15th to 17th July, 1995 but Dr. Pawan Kumar did not attend and asked his assistants to refer him to Cardio-physician Dr. Anil Sharma. Inspite of all these symptoms he was discharged from the hospital in the early morning of 18th July. On 18th July complainant had severe pain in chest in night and he was brought back to the hospital on 19th July. ECG taken on 24th July, 1995 at Singhvi Hospital was abnormal but Dr. Pawan Kumar chose to disregard the same saying that these were not significant. Complainant left for Bhopal for rest and more comfortable surroundings as recommended by Dr. Pawan Kumar on 22nd August, 1995. His symptoms of pain in the jaw and choking sensation continued. Dr. Pawan Kumar to exploit the good name and reputation of the complainant insisted that a press conference be held at Bhopal regarding the success of the said bypass surgery. He issued press notes about his unique feat in performing bypass surgery with a new technique on a beating heart, claiming that it was the first time such a surgery had been done in India. On 3rd October, 1995 when the pain became severe at 6. 00 a. m. the complainant was examined by Dr. I. M. Jain, an eminent cardiologist at Bhopal at the residence of the complainant who confirmed that the pain was due to angina and suggested that he should be seen by the surgeon who had operated him. Dr. Jain on his own telephoned Dr. Pawan Kumar who advised the complainant to continue to stay at Bhopal. Dr. P. C. Manoria another eminent cardiologist from Bhopal who examined and confirmed that the pain was due to angina and advised him to go to Dr. Pawan Kumar for fresh evaluation of his cardiac condition. Accordingly, complainant went to Mumbai on 14th October, 1995. Dr. Pawan Kumar after examination said that there was no need to worry and every thing is all right. Being dissatisfied with the cursory examination and nonchalant attitude of Dr. Pawan Kumar, complainant approached Dr. B. N. Sharma at Bombay Hospital to perform a specialized test on heart function known as Muga Test which was performed on 19th October, 1995 which showed that heart was functioning at 37% capacity at rest and 28% on exertion which is a clear indication that the surgery performed by Dr. Pawan Kumar had grossly failed. When confronted with this report Dr. Pawan Kumar stated that the report was not considered to be final word on the subject. Subsequently on complainant''s insistence an angiography was performed on 26th October, 1995 at Hinduja Hospital which showed that out of four grafts implanted only one was patent, which indicated that the surgery was a total failure, and the other three arteries which were 50 to 80% blocked prior to surgery were completely blocked. When confronted with the latest angiography report, Dr. Pawan Kumar told that his was a complicated case which he had repaired to be best possible extent to save his life. The complainant again approached Dr. G. B. Parulkar on 30th November, 1995 for his advice who mentioned the name of Dr. Ulrich Sigwart a famous cardiologist from London who was visiting Mumbai in December 1995. Accordingly an appointment was fixed with Dr. Sigwart on 15. 12. 1995 who saw the complainant and attempted an angioplasty on 16. 12. 1995 and gave it up after being unable to get past the blockade of the main arteries, which according to the complainant were destroyed by the respondent beyond repair on 10th July, 1995 while performing the Bypass surgery. Complainant is now left with no other option but to carry on with a truncated life with periodic stabs of anginal pain. His blood vessels of the heart have been totally damaged beyond repair by Dr. Pawan Kumar. Case of respondent No. 1 Dr. Pawan Kumar

Dr. Pawan Kumar has submitted that complainant has always been in the habit of making publicity in the newspapers regarding this case for self-gain and profit. He submitted that complainant has also misused the letterheads and certain blank papers signed by him in advance in good faith which were required by the complainant for getting the compensation and reimbursement of medical expenses from Madhya Pradesh Government.

COMPLAINANT was examined by him on 13. 6. 1995 and it was found that he had poor lung functions with blood oxygen level at 63% at normal room air. Complainant had informed him that he required oxygen from time-to-time due to bronchial asthma problem. After seeing the case it was suggested that opinion of pulmonary physician should be taken and during surgery lung should be protected by doing warm heart surgery. The complainant was given 15 days for making a decision about the surgery and he was free to consult any surgeon including Dr. Parulkar a well-respected senior surgeon at Bombay. The complainant after seeking advice from various consultants got admitted to P. D. Hinduja Hospital on 7. 9. 1995 for a four vessel By-pass surgery. Dr. Pawan Kumar submitted that he had explained to the complainant all the details of the surgical procedure and the risk involved as recorded in the hospital medical records. The complainant was under constant supervision of cardiologist Dr. Anil Sharma. The post-operative ECG was normal which is attached to the file. The complainant himself informed the media that this is the first time that MIC gas affected patient was operated for a heart problem. The complainant told him that by giving this information he can claim compensation from M. P. Government. At no point of time Dr. Pawan Kumar had advised that he should not be referred to Bombay for post-operative care. On the other hand on seeing the complainant he had advised him to meet cardiologist Dr. Anil Sharma for evaluation. Complainant at his own discretion went to Bombay Hospital. He further submitted that Thalluim Scanning is better than Muga Scanning to determine grant perfusion. In the consent form it was mentioned about the risky nature of the operation and in the operation notes it was mentioned about bad quality of his coronary vessels. That one graft was open, supplying blood to heart shows success of the surgery. The complainant had a very poor lung and heart function prior to his surgery. At the time of filing the complaint at his age he enjoys enough mobility in spite of his poor lung condition which cannot be improved. Hence he denied that surgery had caused further damage to the complainant''s blood vessels. Case of respondent No. 2 P. D. Hinduja Hospital

DR. F. Udwadia is not attached to Hinduja Hospital and hence respondent No. 2 is not aware of the consultation/treatment given by him to the complainant or of the advice given by Dr. G. B. Parulkar. Dr. Pawan Kumar was a consultant attached at Hinduja Hospital from 16. 4. 1992 to 27. 4. 1998 and he is fully competent and experienced in performing a By-pass surgery. Since the complainant was suffering from poor lung condition and asthma and as both these ailments are potential risk for surgical procedure, the complainant was referred to Dr. Z. Udwadia, Pulmonologist at P. D. Hinduja National Hospital. He underwent complete pulmonary examination and testing. His blood oxygen saturation level at room temperature was 63% which was grossly abnormal. High risk for any surgical procedure was explained to the complainant by Dr. Pawan Kumar, Dr. Anil Sharma and Dr. Z. Udwadia repeatedly in the presence of his son. The complainant arrived at his own decision after seeking advice from various consultants and subsequently got himself admitted to P. D. Hinduja National Hospital for a four vessel By-pass surgery on 7. 7. 1995. Surgery was performed successfully on the complainant as also evidenced from the newspapers reports published and the complainant was discharged from the hospital on 18. 7. 1995 with all wounds healed. Para 22 of written statement of respondent No. 2 reads as follows: "angiography was performed by Dr. Anil Sharma and it was noted that Right Coronary Artery was thick walled and had diffused disease all along and so also was the P. D. Artery disease. Under these circumstances, the Opposite Party No. 2 submits that success of graft patency is limited. The Complainant''s other vessels i. e. Diagonal and Ramus were also of a small caliber where the graft patency is very low. LAD Artery was good sized where LIMA was grafted. It was revealed in the angiography performed in P. D. Hinduja National Hospital and Medical Research Centre post-operatively under Dr. Anil Sharma that LIMA was patent. There was total occlusion of LAD but the LIMA graft itself was patent. It is true that the SVG were blocked. The operation was performed successfully by Dr. Pawan Kumar as seen by the patency of LIMA. " submission of learned Counsel for the appellant Mr. Narottam Vyas submitted that the State Commission order is not based on any rationale or analysis. He quoted the cross-examination of Dr. Lahri relating to beating heart surgery which is as follows :- Q. 15a On perusal of the case papers of the by-pass surgery and more particularly the diagram of surgery, do you agree with me that beating heart surgery a well-established technique all over the world for last 8 years was used to pass by only one out of the four blocks to reduce heart lung machine usage? ans. 15a The beating heart surgery technique started 8 years back in advanced countries initially and I was operated 4 years back that is in July 1995 when such technique was practically rare in India and certainly not the recognized usual or normally a standard method. As admitted by Dr. Pawan Kumar himself this operative technique was new at that time. I am not aware for what purpose this experimental operation was done by him on me nor was I given any prior information about it before operation.

Learned Counsel quoted from the affidavit of Dr. S. C. Lahri that the summary report issued on his discharge from Hinduja Hospital by Dr. Pawan Kumar on 18. 7. 1995, in column of investigations has been clearly written that ECG shows inferior wall myocardial ischemia (I. W. M. I.) have no changes after by-pass operation. He stated that the ECG was not normal and IWMI denotes reduced blood supply of the heart in the interior wall. Dr. Pawan Kumar performed surgery on 10. 7. 1995 on a beating heart, which is in itself a cause of failure of surgery. He could not anastomose the three grafts except one and Dr. Pawan Kumar did this experiment on him for the first time in India. Severe anginal pain in the first week of October 1995 was not due to lung disorder and it can only be due to failure to by-pass surgery. In his cross-examination he stated that he does not dispute the contents of discharge certificate issued by Cumballa Hill Hospital. Signs of damage to the heart permanently remains in the ECG after bypass surgery. He clarified that they showed improvement but did not disappear permanently. On 16. 12. 1995 he underwent angioplasty at Cumballa Hill Hospital subsequent to the heart surgery performed by Dr. Pawan Kumar. He quoted the cross-examination of Dr. Lahri which is as follows: Q. 12b Do you agree with me that even Dr. Vijan in his report dated 9. 6. 1995 had mentioned Right Coronary Artery (RCA) nature as ecstatic (dilated, diseased) vessel? (If your answers are in the negative please substantiate your answers as to why you differ from the material on record)Ans. 12b Yes. I agree but ecstatic means dilated. Q. 13 Please refer to the literature annexed at Exhibit 1 pages 24 to 26 of the written submission of O. P. No. 1 dated 26. 6. 1999. Ans. 13 I was not made aware about it. Q. 13a Do you agree that various graft patency is limited? ans. 13a Now I am seeing the literature but Dr. Pawan Kumar being a cardiac surgeon did not tell me prior to operation about its failure neither took specific permission to various graft which were likely to occlude totally even before discharge. Q. 13b Do you agree that early occlusion occurs in 8% to 12% of venous grafts prior to hospital discharge and 12% to 20% of vein grafts become occluded by one year? ans. 13b I was not aware about it. Q. 13c Do you agree with me that patency of various graft depends upon graft flow and distal vessel runoff? ans. 13c I was not aware about it. Q. 13d Do you agree with me that Antheroscierotic block in Coronary Artery have tendency to progress due to various well established risk factor beyond control irrespective of successful surgery?. (If you differ with the same, please substantiate the same)Ans. 13d I was not aware about it.

DR. Lahri had submitted replies to the interrogatories in the following manner: Q. 15c Do you agree with me that if two different techniques are available and if one of them is used by the surgeon, the same cannot be questioned in view of the settled position of law laid down by the Hon''ble National Commission in the case of N. T. Subramaniam v Dr. B. Krishna Rao duly reported in NC and SC on Consumer Cases 1985-96 page 2350? ans. 15c Both are not the same, beating heart operative technique is experimental. One, there is no similarity of that case which is stated in consumer cases of 1985-96 on page 2350. Q. 19d Dr. Lahri please refer to Dr. Sigwart''s letter dated 19. 1. 1996 and point out the relevant portion from the said letter where Dr. Sigwart has even remotely suggested that some gross error has been done during the by-pass surgery performed on 10. 7. 1995 and/or to support the allegations made by you in paragraph No. 24 of the amended complaint. Ans. 19d These were the spoken words of Dr. Ulrich Sigwart in presence of my son Sunil Lahri.

DR. Indermal Jain who is a M. D. in Medicine specialized in general medicine and cardiology and who has been Professor in Gandhi Medical College in Bhopal and retired in 1992 gave his evidence on affidavit as follows: "i was called on 3. 10. 1995 at the residence of Dr. S. C. Lahri at 59, Jail Road, Bhopal in early morning for his emergency condition. I gave him emergency treatment and took his E. C. G. showed signs of Ischaemic Heart decease and also saw papers of Hinduja Hospital and previous E. C. Gs. and also E. C. G. reports, so I thought to refer back Dr. S. C. Lahri to Hinduja Hospital to discuss his emergence position. I made a telephonic call to Bombay and talked with Dr. Pawan Kumar of Hinduja Hospital at his residence number. He advised that Dr. S. C. lahri should not be sent to Bombay and he should be treated at Bhopal only. I have already issued a certificate to this effect to Dr. S. C. Lahri on 9. 4. 1996. "

Dr. R. N. Sharma is practising in medical field since 1963 at Bhopal and currently the Director in the New Bhopal Hospital, Bhopal. His evidence on affidavit is as follows: "2. On call from Dr. S. C. Lahri I had been to Mumbai on 10. 7. 1995 and attended, present in operation theatre of Hinduja Hospital where Dr. S. C. Lahri was being operated by Dr. Pawan Kumar after due permission from Dr. Pawan Kumar. 3. In operation theatre of Hinduja Hospital while Dr. Pawan Kumar, was operating upon Dr. S. C. Lahri Dr. Pawan Kumar''s was not satisfactory which he could not express properly while I intervened. 4. After operation also Dr. Pawan Kumar could not express properly and did not give a satisfactory answer. 5. I have issued a certificate to Dr. S. C. Lahri dated 26. 2. 1996 to this effect of his condition and conversant of Dr. Pawan Kumar with me of operation theatre of Hinduja Hospital where Dr. S. C. Lahri was being operated on 10. 7. 1995 along with the prior occurrences and subsequent incidences. 6. Later on while Dr. S. C. Lahri reached Bhopal in last week of August, 1995 many other senior physicians and I attended him for his attacks of Anginal pain and Dr. S. C. Lahri was advised to go to Bombay for his further treatment in 1st week of October 1995. "

He quoted the affidavit of Dr. Pawan Kumar as follows : "20. With reference to para No. 20 of the said complaint, I say and submit that on the complainant''s own decision he went to Bombay Hospital. I further say that Thalluim Scanning is better than Muga Scanning to determine grant perfusion. 21. With reference to para No. 21 of the said complaint, I say and submit that what is stated in the said para is of his own interpretation. In fact, it is mentioned in consent form about risky nature of operation and in operation notes it is mentioned about bad quality of his coronary vessels. Other point is that one graft was open, supplying blood to heart shows success of operation. "

He further submitted that by saying that one graft was opened supplying blood to heart shows success of operation. Dr. Pawan Kumar also admits that three grafts were closed which clearly means the surgery was unsuccessful. Dr. Pawan Kumar has stated on affidavit that the complainant was admitted to the Hinduja Hospital on 7. 7. 1995 for a four vessel By-pass surgery.

ACCORDINGLY, the learned Counsel submitted that it is clearly proved that the surgery performed by Dr. Pawan Kumar at Hinduja Hospital was unsuccessful which necessitated another surgery subsequently in December 1995 after conducting Muga test and Thalluim test at Cumballa Hill Hospital where angioplasty was done. Hence appeal may be allowed and compensation as prayed for may be granted. Submission of learned Counsel for the respondent No. 1 Mr. Prabhavalkar submitted that proper consent was taken before the surgery was performed. He drew our attention to para 12 of additional affidavit of Dr. Pawan Kumar wherein it is stated that Dr. Pawan Kumar after his MBBS got Cardiac Surgery Super Specialization degree (M. Ch.) at AIIMS in 1985. Thereafter he went abroad to Sweden and U. K. and got further training in Cardiac Surgery. Till the date of this surgery he has performed more than 4,000 cardiac surgeries. The complainant after making requisite inquiries about Dr. Pawan Kumar''s expertise and about the necessity of the By pass surgery he himself got admitted at Hinduja Hospital on 7. 7. 1995 and on 10. 7. 1995 the four vessel surgery was performed by Dr. Pawan Kumar after obtaining written consent of the complainant for high risk open heart surgery on Dr. Lahri who himself is a Doctor.

ECG taken by Dr. Anil Sharma from timeto-time and after the surgery makes it abundantly clear that there was no complication whatsoever after that surgery. The complainant was referred to Dr. Z. Udwadia, Pulmonologist prior to the surgery and after testing his blood oxygen saturation level at room temperature was 63% which was grossly abnormal. In support of his contention Dr. Pawan Kumar in his affidavit relied upon reference from Braunwald''s Text Book of Cardio Vascular Medicine, 4th Edition Volume 1 pages 1320 and 1321. On perusal of the observation of the world''s renowned author it is abundantly clear that early occlusion occurs in 8% to 12% of various grafts and therefore considering the said observations it is abundantly clear that there was no negligence on his part. Considering the fact that the complainant was a chronic patient of asthma due to unfortunate event of Bhopal Gas tragedy and that he was suffering from said problem for more than 13 years before the said surgery result obtained by him by performing the said surgery speaks for itself. The main allegation of the complainant is that Dr. B. N. Sharma at ''bombay Hospital performed a specialized test on heart function known as ''muga Test'' on 19. 10. 1995 which showed that the heart was functioning at 37% capacity at rest and 28% on exertion indicating that the surgery had grossly failed. When confronted with this report on 22nd October, 1995 Dr. Pawan Kumar stated that report was not to be considered as the final word on the subject. On 26th October, 1995 an angiography was performed by Dr. Anil Sharma at Hinduja Hospital which showed that out of four grafts implanted, only one was patent, which indicated that the surgery was a total failure as other three arteries which were 50 to 80% blocked prior to surgery were completely blocked as seen in the angiography. He submitted that Muga report was not produced before the State Commission, Dr. Pawan Kumar in his affidavit in reply has stated that complainant on his own went to Bombay Hospital and the Thalluim Scanning is better than Muga Scanning to determine grant profusion. What is stated above by the complainant in his own interpretation. The complainant was informed about the risky nature of the operation due to bad quality of his coronary vessels prior to the surgery. The very fact that one graft was open to supply blood to him shows the success of the operation. He further stated that today at his age he enjoys enough mobility in spite of his poor lung condition which cannot be improved. Hence he denied that surgery caused further damage to the complainant''s blood vessels.

HE reported that occlusion takes place within one year. No expert Doctor has disputed this. In his cross-examination the complainant has submitted that he was the patient of Asthma since 1983 and had angiography twice and faced heart problems earlier. There is a difference between failure of a surgery due to the health condition of a patient and negligence. Dr. Anil Sharma has nowhere attributed negligence in the performance of surgery by Dr. Pawan Kumar. Neither Dr. R. N. Sharma nor Dr. Indermal Jain in their affidavits have attributed negligence. Submission of learned Counsel for respondent No. 2, P. D. Hinduja Hospital

MR. Vinod Kumar mentioned that complainant has stated that inspite of his written complaint he was charged Rs. 20,000 in addition to the cardiac package offered by the hospital and no action was taken by the Hospital on his complaint. He denied this and stated that no receipt of payment of cash has been produced by the complainant. The hospital authorities denied that hospital has been negligent in any form or manner in the treatment given to the complainant. Ample care, diligence and caution was taken at every step and the hospital has been diligent in the treatment given to the complainant and there have been no lapses whatsoever. Mr. Narottam Vyas in his rejoinder submitted that if the condition of the patient was bad at the pre-operative stage then why the case was taken up for surgery. Three out of four grafts were blocked after surgery and, therefore, it cannot be considered by any stretch of imagination that surgery was successful. Findings:

It is clear from the synopsis of the complainant''s case itself that complainant Dr. S. C. Lahri''s was a case of chronic obstructive pulmonary disease due to Bhopal gas tragedy and had been living on medicines for his asthma. While at Bombay on 6th April, 1995 he had suffered pain in chest and was shown to Dr. F. G. Udwadia at Breach Candy Hospital where he was diagnosed as Ischaemic heart disease and was on medical treatment for about two months. On 8. 6. 1995 Dr. G. B. Parulekar was consulted who got angiography done at Cumballa Hospital and the complainant was diagnosed as having arterial obstructive disease having 50% to 90% stenosis of the coronary arteries on 9. 6. 1996.

HENCE the necessity of multiple vessel heart surgery cannot be denied in this case. Being a Doctor himself, he was competent to make proper choices of the Hospitals and Doctors before undergoing surgery. To blame any Doctor or any other functionary of the Hospital for choosing P. D. Hinduja Hospital and Dr. Pawan Kumar for surgery cannot be considered appropriate by any stretch of imagination. It is not a case of the complainant that the surgery was negligently performed or any complication arose during the performance of surgery or administration of anaesthesia. It is his case that the surgery was not successful. It is not disputed that the treating surgeon had told the patient that it was a high risk surgery and that the consent was given by the complainant himself. The case records show that the complainant himself prosecuted his case before the State Commission, which indicates that he was healthy enough to undertake the strenuous task. It is relevant in this context to look into the medical text of Braunwald''s Text Book of Cardio Vascular Medicine wherein it is mentioned as follows: "early Occlusion. Eearly occlusion (Prior to hospital discharge) occurs in 8 to 12 per cent of venous grafts and by one year 12 to 20 per cent of vein grafts have become occluded. Technical factors may cause closure at the proximal or distal anastomoses; both kinks due to excessive length and tension due to insufficient length may promote occlusion. Graft flow and distal vessel runoff are also important Atheroma at the arleriotomy site may predispose to early occlusion. Perioperative platelet inhibitor therapy with both high and low-dose aspirin and dipyridamole appears to diminish the rate of early occlusion. Intermediate Phase. In vein grafts that have been implanted in the arterial circulation for 1 month to 1 year, there is substantial endothelial denudation and proliferation and migration of medial cells to the intima. These events are promoted by aggregation of platelets and growth factor secretion. Intimal thickening and hyperplasia appear, but this process is not prevented by platelet inhibitor therapy. Histological studies of grafts that occlude within 1 year show either substantial thromobosis with minimal intima-medial changes or marked intimal hyperplasia and superimposed thrombus. This accelerated process of intimal hyperplasia is an early stage of atheroscierotic plaque information and is believed to occur because of an interaction between platelets and other circulating cells and chronic, mild endothelial damage. If the proliferation is severe and localized (as may occur at the site of the anastomosis between the grafts and the recipient artery), total occlusion can occur within 1 year. "

THIS authority has not been controverted by producing any extracts of medical text by the complainant. The complainant has produced in his support the evidence of only two doctors. Dr. Indermal Jain who is M. D. in medicine has only stated that looking into the emergency condition of the complainant on 30. 10. 1995 he gave him emergency treatment and took his E. C. G. which showed signs of Ischaemic heart decease. After seeing papers of Hinduja Hospital and previous E. C. G. reports he thought it fit to refer the patient back to Hinduja Hospital to discuss his emergency position. When he talked to Dr. Pawan Kumar of Hinduja Hospital, the latter advised that Dr. Lahri should not be sent to Bombay and may be treated at Bhopal only. This piece of evidence cannot be treated as a proof of medical negligence in performance of heart surgery by Dr. Pawan Kumar. Assuming that Dr. Pawan Kumar had told the patient to remain at Bhopal nothing prevented him to go to Bombay or any other place and consult any eminent surgeon for any complication which he felt was there. Dr. R. N. Sharma whose qualifications are not disclosed in his affidavit stated that on a call from Dr. Lahri he went to Bombay on 10. 7. 1995 and was present in the operation theatre with the due permission of Dr. Pawan Kumar. He stated that Dr. Pawan Kumar did not satisfactorily perform the operation which he could not express properly when Dr. Sharma intervened. Dr. Sharma did not clarify what was that part of the surgery which was not satisfactorily done and what was the effect and what he should have done instead. We do not know whether Dr. Sharma was a cardiac surgeon or whether he has performed cardiac surgeries in the past. He further submitted that when Dr. Lahri was at Bhopal in August 1995 many other senior physicians and himself attended him for his complaints of anginal pain and Dr. Lahri was advised to go to Bombay for further treatment. We cannot consider the evidence of Dr. Sharma as an expert''s evidence. No cardiac surgeon has given evidence to support the contention of Dr. Lahri,''as Dr. Indermal Jain is M. D. in medicine and not a cardiac surgeon and Dr. Sharma has not revealed his specialization.

THE consent form signed by Dr. Lahri on 9. 7. 1995 shows that he was to undergo procedure for CABG which reads as follows :- "patient''s NAME: Mr. Shikar Chandra Lahri. PROCEDURE: For CABG i have explained to the patient the nature of his/her condition, the nature of the procedure, and the benefits to be reasonably expected compared with alternative approaches. I have discussed the likelihood of major risks or complications of this procedure including (if applicable) but not limited to loss of limb function, brain damage, paralysis, haemorrhage, infection, drug reactions, blood clots and loss of life. I have also indicated that with any procedure there is always the possibility of an unexpected complication. Additional comments (if any): high RISK OPERATION DUE TO BAD LUNG FUNCTION status AND HEART FUNCTIONING. BLOOD OXYGEN pad2 63% ON ROOM AIR. All questions were answered and the patient consents to the procedure dr. Pawan Kumar has explained to me and I consent to the procedure. Signature"

THIS is an informed consent signed by a patient who himself was a Doctor, aged 65 years at the time of surgery. The Narrative Summary reads as follows: "patient''s Name: Lahri SC Age : 65yrs. H. H. No. 245714 Sex: M admitted On : 7. 7. 95 discharged On : 18/7 65 years old male was admitted. He underwent CABG x 4 on 10/7/95 post operative recovery was uneventful. At the time of discharge he was afebrile, and well ambulated. He was haemodynamically stable and wounds were healthy. He was discharged on the certain medications. Tablets were listed. He was to repeat Chest X-ray/ecg after 1 month. Stress test after 3 months. "

The Hospital records gives history of physical examination by various Doctors, progress notes, drugs, IV fluids and remarks by Dr. Anil Sharma and Dr. Z. Udwadia, blood pressure, temperature records, urine output, nurses observations and critical care flow chart. None of these have been questioned.

It cannot be expected that every physician or surgeon is gifted with extraordinary skills or they can perform miracles. The complainant has questioned the method adopted by the treating surgeon in the performance of surgery. What is expected of a doctor is whether the procedure adopted by the doctor is acceptable to medical profession. This point has been elaborated by the Apex Court in the case of Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. , IV (2006) CPJ 8 (SC)=i (1996) CLT 532 (SC) and held as follows: "the skill of medical practitioners differs from doctor to doctor. The every nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as doctor acts in a manner which is acceptable to the medical profession and the Courts find that he has attended on a patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. "

THE Supreme Court in case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, while dealing with the question of medical negligence and duties of a doctor, observed thus: "the duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. 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: (of Halsbury''s Laws of England, 3rd Ed. Vol. 26 P. 17 ). The Doctor, no doubt has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. "

These two citations are squarely applicable to this case. In view of the above, we do not see any merit in this appeal. Accordingly, the appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to cost. Appeal dismissed.