PRADEEP KAYAL vs BALCHAND

-THE two appeals arise out of order dated 14.10.1999 passed in Case No. 17/1997 by the District Consumer Disputes Redressal Forum, Guna (for short the ''District Forum'')

FACTS of the case in brief are that the complainant Balchand brought his wife Kusum Bai to the opposite party Dr. Pradeep Kayal who is running his own Kayal Nursing Home in Ashoknagar town of District Guna. The doctor prescribed some medicines and also suggested ultra sonography test of abdomen. The sonography report revealed that there was intestinal T.B. and advised operation of the intestine. The patient Smt. Kusum Bai was admitted in Kayal Nursing Home on 2.8.1996 and on 3.8.1996 operation was performed and the defective part of the intestine measuring about 6 inches was removed. On 14.8.1996 the patient was discharged. It is alleged that the patient was not fully recovered but the opposite party Doctor relieved her. When she came to her home, her condition deteriorated, therefore, on 16.8.1996 on the advice of Doctor, the patient was taken to Gokuldas Hospital of Indore where she died on 17.8.1996. It is alleged by the complainant that the opposite party Doctor Pradeep Kayal has not taken proper care while operating the patient and it was due to his negligence that the trouble arose and the complainant''s wife Smt. Kusum Bai died. He, therefore, presented the complaint before the District Forum, Guna claiming compensation of Rs. 4,50,000/- for medical negligence. The District Forum after appreciation of evidence gave a finding that the death of the patient has no nexus with the operation, therefore, no case of medical negligence is made out against the opposite party. However, the District Forum gave a finding that the opposite party No. 1 Dr. Pradeep Kayal has not taken proper care in taking help of another Doctor specially an Anaesthetist while performing such a major operation and by using purely an analgesic medicine Analgesia performed operation and the Doctors have failed to produce the record of the bed-head sheets and hospital record pertaining to admission, operation and treatment of the patient. The District Forum, therefore, ordered to pay compensation of Rs. 10,000/- to the complainant. It is against this order, the complainant has filed Appeal No. 459/2000 for enhancement of compensation while respondent Doctors have filed Appeal No. 1783/1999 for setting aside the order of the District Forum.

In his appeal the complainant has submitted that the District Forum has found Dr. Kayal partially negligent, therefore, a suitable compensation ought to have been awarded. The District Forum has awarded only Rs. 10,000/- which is very little amount looking to the mental and physical agony which complainant had to suffer.

IN their appeal the respondents Doctors have submitted that in the sonography report it was found that the patient was suffering from tuberculosis of intestine, therefore, the operation was done with due care and diligence and infected part of the intestine was removed. The pre and post operative care was taken by them. The patient had improved after operation and was discharged. It is further submitted by the respondent Doctors that because the patient was suffering from intestinal tuberculosis, the death was natural consequence of the disease by which she was suffering and it had no nexus with the operation procedure adopted by the opposite party Doctor. The District Forum has reached to the conclusion that there was no nexus between the operation and death of the patient and still have awarded a compensation of Rs. 10,000/-. This adversely affected their reputation. Therefore, the order of the District Forum should be set aside.

WE have gone through the evidence and finding of the District Forum. Before the District Forum the complainant was cross-examined. In the cross-examination it has come on record theat the patient had remained under treatment of the opposite party Dr. Kayal for the last one year. She had consulted 4 to 6 times within a period of one year. It has also come in the cross-examination that the patient was suffering from ailment for the last three years and earlier doctors of Guna and Indore were also consulted. The complainant has stated that his wife was having weakness and swelling in her abdomen. Before one week from the date of operation when his wife was having complaint of pain in her abdomen, she was advised to get ultrasonography test. In the ultrasonography report he was told that there is some disease in the intestine and has advised for operation. Therefore, with the consent of his wife and the complainant, the operation was performed. Learned Counsel for the complainant during his arguments pointed out that in record of Gokuldas Hospital cause of death has been mentioned "Operated for adominal tuberculosis with Septicemia with hepatic encephalopathy". When the patient was suffering from such a disease and a major operation was to be performed, a qualified anaesthetist should have been called by the operating surgeon. It is further pointed out that the operation was performed under analgesia and there was no woman at the time of operation. The record also does not reveal that any pathological tests were got done by the operating surgeon which were necessary. We have gone through the affidavits of the complainant and the facts which have come on record during cross-examination. The complainant has not produced before the District Forum any papers pertaining to sonography report, pathological tests and treatment which his wife was getting for the last one year. The facts in the cross-examination make clear that the patient was suffering from abdominal pain and swelling for the last three years. She had also consulted Dr. Pradeep Kayal about six times in the previous year. In the cross-examination, the complainant had admitted that the sonography report and other tests were recommended by the opposite party Dr. Pradeep Kayal which he had got conducted from Guna. After sonography report, the complainant was told by the opposite party Doctor that his wife is suffering from tuberculosis and infection of intestine which will require operation. On getting consent from the complainant and his wife, the operation was performed and a six inch piece of infected intestine was removed on 3.8.1996. The patient remained admitted in the hospital upto 13.8.1996 and on 14.8.1996 she was discharged. This reveals that so far as the operated part is concerned it was alright and there was no surgical complication.

THE opposite party Doctor has submitted that the patient was a case of intestinal tuberculosis. THE intestine had developed septicemia. He succesfully operated and removed the part of infected intestine. THEre was no lapse or negligence in this exploratory procedure. Because the patient was a serious case of intenstinal tuberculosis so, she could not recover from infection, though he tried to remove the infected part in her best interest and to save her life.

SO, far as the point raised by the learned Counsel for the complainant that anaesthesia was not used but operation was done after giving analgesia is concerned, learned Counsel for the opposite party has submitted that in very ill patients method of analgesia is suitable. Therefore, he adopted method of analgesia rather than anaesthesia. He has drawn our attention to medical book Lee''s Synopsis of Anaesthesia by R.S. Atkinson, G.B. Rushman & N.J.H. Davies Eleventh Edition, 1993 published by ELBS Chapter 22 Surgical Operations and Choice of Anaesthetic at page 497 wherein several agents of anaesthesia have been recommended and analgesia is also one of them. In another medical book "Introduction to ANAESTHESIA, THE PRINCIPLES OF SAFE PRACTICE" by Robert D. Dirpps, James E. Eckenhoff, and Leroy D. Vandam Second Edition 1966 published by W.B. Saunders Company under Chapter 10 "The Inhalation Anaesthetics" at page 79 it has mentioned : "Analgesia rather than surgical anaesthesia with ether has been assayed for cetain operation in very ill patients. With peripheral venous blood levels of ether as low as 10 to 15 mg. percent, pain relief has been provided together with adequate operative conditions for the surgeon during major operations on the heart. The patient can respond to questions during the procedure, obey commands, recognize colours and even distinguish differences in the sensation of taste."

From the above, we find that the operating surgeon has taken due care and precaution while performing the operation and treating the patient. The complainant has no where mentioned or denied the fact that there was not even a nurse during the operation, therefore, this objection of the complainant that there was no woman doing operation has no merit.

The record reveals that the opposite party Doctor has not produced any papers pertaining to day to day treatment and hospital record regarding admission of the patient examination and treatment given. The District Forum has rightly pointed out that this can be treated as a deficiency on the part of the Doctor. The District Forum has also analysed the case in details and has reached to the conclusion that so far as the operation part is concerned, the opposite party Doctor cannot be held responsible for any lapse or negligence because the death cannot be attributed to operation, but the District Forum has rightly observed that by not producing the hospital record, the opposite party Doctor attempted to hide procedure followed by him. Therefore, the District Forum has found the opposite party Doctor partially negligent in not maintaining the transparency in the treatment record.

WE, therefore, find no reason to interfere with the order of the District Forum. So far as the appeal filed by the complainant for enhancement of compensation is concerned, we are of the opinion that the District Forum in the circumstances of the case has exercised its discretion which is justified and needs no intereference. In the result, appeals fail and are dismissed with no order as to costs. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with record of the case. Appeals dismissed.