R K SHARMA vs Vinit Mehta

THIS First Appeal has been filed by Dr.R.K. Sharma and Others (hereinafter referred to as the ''Appellant'') being aggrieved by the order of the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the ''State Commission'') in Complaint No.150/1997 wherein State Commission has directed the Appellant/doctor to pay Rs.1 lakh as a lump-sum compensation to Vinit Mehta, complainant before the State Commission and Respondent herein.

RESPONDENT in response to an advertisement in some leading dailies given by the Appellant/doctor that he could increase the height through a famous Russian surgical method (for dwarfs, short-structured, limb length inequality, amputees, difficult fractures/non-unions etc., approached the Appellant/doctor and expressed his desire to increase his body height from 5''10" to 6 ft. Appellant/doctor immediately admitted him for an X-ray and charged him Rs.1,000/- as consultation fees and assured him that through this surgery, his height would be increased by minimum 4" to 5" inches. The cost of the operation would be Rs.1,50,000/- and within two to three months of the surgery, he would be able to walk normally with the increased height. The surgery was undertaken on 06.05.1996 and for the next two days, Respondent was given glucose and cold drinks. When the Respondent''s widowed mother came to Delhi to see the Respondent, she noticed that only one leg of the Respondent had been operated and a fixture put on it. Respondent''s mother asked Appellant not to undertake any further surgery and requested for a reversal of the operation as there was no need to increase the height of the Respondent who was already 5''10". After two days the Appellant/doctor agreed to conduct the reversal operation and consequently the fixture was removed and the Respondent was discharged. However, after this surgery the Respondent was not able to walk properly and nor could the leg bear any stress because the fibula was cut by the Appellant/doctor and a 2 inch piece was taken out and thrown away. As a result the Respondent became permanently disabled and is not in a position to join the police force which he had aspired to do. Being aggrieved, Respondent filed a complaint before the State Commission on grounds of medical negligence and deficiency in service and requested that Appellant/doctor be directed to pay compensation of Rs.20 lakhs to him in lieu of the disability caused, mental agony and harassment as also litigation costs.

APPELLANT/doctor on being served admitted that the surgery was conducted by him through the Illizarov technique which is universally well recognized and because the Respondent had expressed his desire to join the film industry and therefore wanted to increase his height as advised by his relatives. The operation was conducted after the necessary diagnostic tests and with due consent of the Respondent who is a major. The Respondent was also explained that by this technique a gap of less than half an inch is made in the fibula for conducting the aforesaid operation and a transverse cut is made in the tibia. The surgery was successful and there was no complication but it was on the insistence of the mother of the Respondent for reversal operation that this was also agreed to and successfully conducted. Appellant contended that he only charged Rs.10,000/- from Respondent and returned rest of the amount received from him.

THE State Commission after hearing both parties and on the basis of evidence filed before it concluded that even though no medical opinion or expert evidence to support the allegations that the Respondent had suffered permanent disability, had been filed before the State Commission, yet it was obvious that there was limited deficiency in service as also negligence on the part of the Appellant/doctor in performing the operation on a person on whom he should not have done so as publicised by Appellant this surgery was specified/suitable for dwarfs, short-structured, limb length inequality, amputees, difficult fractures/non-unions etc. whereas in the instant case the Respondent was a young man with a height of 5''10" for which an operation of this type was unnecessary. The operative part of the State Commission reads as follows: "In the instant case, the O.P doctor specifically knew that the Russian surgery available in India for increase of height was only for those who are dwarfs, short structured, suffering from limb length inequality or amputation etc. and not in respect of a normal person, much less a young man with a reasonably good height of 5''10". It appears that the O.P was actuated by financial considerations and undertook the operation upon the complainant who did not fall within any of the aforesaid categories and was only aspiring or anxious to get his height increased by 2-4 inches more so that he looks like a young man of 6 ft. .......................................In the instant case, as is apparent, O.P.1- doctor has done a thing which he was not expected to do and in the process has earned unjustly by charging fees from the complainant. Since we do not have any medical opinion or expert evidence as to the allegations that the complainant had suffered permanent disability because of the operation or reversal of the operation and since the limited deficiency in service or the negligence on the part of O.P.1 is only in performing the operation upon a person on whom he could not have and should not have performed such an operation, we deem that a lump sum compensation of Rs.1 Lac ( Rupees One Lac Only), which shall include the cost of litigation, shall meet the ends of justice."

Hence, the present appeal.

COUNSEL for Appellant was present. None appeared on behalf of Respondent though service is complete. It was therefore decided to proceed with the case ex parte. Counsel for Appellant reiterated that the State Commission itself had concluded that there was no medical opinion or expert evidence to indicate that there was any medical negligence or deficiency in service on the part of the Appellant/doctor and that the Respondent had become permanently disabled as a result of the two surgeries conducted on him. Further, the surgery was conducted through a universally well acknowledged procedure which was explained to the Respondent and therefore, the State Commission erred in directing the Appellant/doctor to pay a lump-sum compensation of Rs.1 lakh on the grounds of limited deficiency in service. In view of this, the State Commission erred in concluding that the Appellant was guilty of deficiency in service and negligence as the operation was done on a person on whom it should not have been done and directed that Appellant should pay Rs.1 lakh to the Respondent.

WE have heard the learned Counsel for Appellant and have gone through the evidence on record. The facts regarding the two surgeries are not in dispute. It is also a fact that no medical evidence has been produced by the Respondent on whom there was onus to do so, to establish that he has suffered any permanent disability as a result of the surgery except for his verbal assertions to this effect. However, it is a fact that such surgery should be done only in specified cases pertaining to dwarfs, short-structured, limb length inequality, amputees, difficult fractures/non-unions etc. In the instant case, the Respondent had a height of 5''10" and the Appellant/doctor should have professionally advised him that surgery which always has inherent risks in such cases is not required. However, as observed by the State Commission, no medical negligence has been established in this case. We, therefore, set aside the order of the State Commission that the Appellant/doctor was guilty of any medical negligence in the instant case. However, we agree that the Appellant/doctor could have advised Respondent that this surgery was not necessary in his case instead of readily consenting to do so purely for monetary consideration which is not in the best traditions of his profession as a doctor. We, therefore, set aside the lump-sum compensation of Rs.1 lakh. Counsel for Appellant, however, states that a sum of Rs.50,000/- already deposited by the Appellant/doctor before this Commission may be paid to the Respondent as ex gratia payment. The Office is, therefore, directed to pay the amount of Rs.50,000/- deposited by Appellant to Respondent as ex gratia payment after due verification. The First Appeal is disposed of on the above terms.