RAJENDRA KUMAR GOSWAMI vs ARUN MADHARIA

THIS appeal is directed against the order dated 31.3.1999 passed by the District Consumer Disputes Redressal Forum, Raipur (hereinafter called the ''District Forum'' for short) in Complaint Case No. 919/97 whereby the District Forum had dismissed the complaint.

BRIEF facts of the case as narrated in the complaint are that the complainant is the father of the deceased Mukesh Goswami. The said Mukesh Goswami was a student of Class XI and had died due to negligent and careless treatment given by the opposite party doctor. Complainant''s son suffered pain at the rear portion of his waist and was brought on 16.7.1997 to the orthopaedic surgeon i.e., opposite party who advised for certain tests. On 19.7.1997 the doctor told the complainant after examining the C.T. scan report of Mukesh that there was growth in the spinal cord and the only option is to operate the same. It is averred in the complaint that the complainant told the doctor that he will go to his village on 30.7.1997 to arrange for the funds and also to consult other family members. It is alleged that the opposite party doctor carried out the operation without obtaining consent from the complainant and the complainant came to know of the same when he returned from his village. The opposite party told after operation that Mukesh would be well within a month. Complainant''s son remained admitted in the Gayatri Hospital of the opposite party from 29.7.1997 to 9.8.1997 and total bill charged for the treatment was Rs. 17,700. The opposite party had advised for checkup after 15 days. He again called him after further 15 days. However, the condition of the patient did not improve, it had rather deteriorated. It is further averred that when the complainant went with his son after a month of the operation he told the doctor that the patient had no relief rather his problem has further increased. On this the opposite party got annoyed and asked the complainant to take the complainant wherever he wished and did not give medical report, etc. Even despite demand. It is further averred that consequent to the operation the lower portion of the body of Mukesh was paralysed. Thereafter the patient was shown to the local doctors of Durg and they got him admitted to Government Hospital, Durg on 2.10.1997 and he remained in the hospital till 12.10.1997. Private doctors at Durg as well as doctors at the Government Hospital told that the patient was wrongly operated. As condition of the patient deteriorated the complainant took him to Sector 9, Bhilai but the patient could not be admitted at the said hospital as the opposite party had not given relevant medical reports. It is further averred that the opposite party doctor who carried out the operation is only an orthopaedic surgeon whereas such an operation was to be carried out by a neuro-surgeon. Gradually the condition of the patient deteriorated and ultimately he died on 17.11.1997. It is also averred that knowing fully well that he was not competent enough to conduct the operation, the opposite party had done so resulting in untimely death of his promising son. The complainant claimed damages on various counts to the tune of Rs. 4,50,000 together with interest and costs. The complainant had filed his own affidavit and had examined Dr. A.D. Urgaonkar, the doctor who treated Mukesh at the Government Hospital, Durg.

The opposite party had in his reply denied the allegations of deficiency in service and averred that he had obtained consent in writing prior to conducting the operation and had sent the lump for biopsy test and the report was positive and consequently it was advised that the patient be got treated at Tata Memorial, Mumbai as is apparent from the documents filed by the complainant himself. The opposite party filed his own affidavit.

THE District Forum felt fully convinced by the version of the opposite party and dismissed the complaint consequently the complainant has filed this appeal. Heard the learned Counsel for both the parties and perused the record.

MAIN submissions of the learned Counsel for appellant are that the opposite party/respondent had carried out the operation without obtaining consent from the complainant. In view of the C.T. scan report certain other tests were necessary but the same were not carried out. The opposite party doctor had not given medical report even despite demand. Learned Counsel also submitted that the opposite party/respondent had never told the complainant that his son suffered from cancer. It was further submitted that the opposite party was not competent to carry out the operation in absence of any Neuro-surgeon. It was yet further submitted that other treating doctors were not inclined to appear before the District Forum and tell the truth, however after untiring efforts made by the complainant only Dr. A.K. Urgaonkar somehow appeared before the District Forum. Learned Counsel for the opposite party/respondent reiterated the stand taken before the District Forum. It is observed that the complainant had laid specific allegation that the opposite party/respondent had performed the operation without obtaining consent from him. The opposite party though averred that he had obtained consent in writing yet has failed to produce any document to that effect. There is no doubt that medical treatment and surgical procedures involve interference with the human body. As held by Justice Cardozo in Schloendroff v. Society of New York Hospital, (1914) 103 NE 92, ''Every human being of adult years and sound mind has a right to determine what should be done with his body; and a surgeon who performs an operation without his patient''s consent commits an assault for which he is liable in damages.'' In the case in hand the patient was a minor and as per common law prevalent in India the natural guardian has power to do all acts which are necessary and proper for the benefit of the minor. A reading of the Code of Medical Ethics also reveals that it is obligatory for a doctor to obtain consent, in writing. We would like to reproduce Clause 13 of the list provided under the heading disciplinary action: ''Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of a minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed. It is noticed that the provision regarding consent is contained in the list under the heading disciplinary action it means that in case of violation of the provision disciplinary action may be taken by the Medical Council of India. However, it is well settled that in cases of emergency or when the patient is unconscious the operation may be performed without obtaining consent as aforesaid. In the case in hand it is noticed that the doctor has failed to plead or prove any emergency and has also failed to produce documents relating to consent. From the aforesaid discussion there remains no doubt that the surgeon had not obtained consent from the father of the patient i.e., the complainant otherwise, in view of specific allegation in this regard, he would have produced the relevant document containing consent that the opposite party doctor alleges to have obtained. Further, it is not a mere formality to obtain consent but it should be obtained after properly informing the person concerned about the risks involved in the process of surgery. In the case in hand it appears that even the formality of taking consent was not fulfilled, what to say of informed consent. We are of the opinion that the learned District Forum manifestly erred in presuming oral consent in the matter.

LEARNED Counsel for the appellant also drew our attention to the C.T. scan report dated 29.7.1997 where in the opinion a question mark is put before the Neurofibroma. He submitted that the very presence of ? suggests that the said opinion was not conclusive and definitive. The learned Counsel further submitted that in view of the said question mark the opposite party/respondent should have advised some other tests in order to come to a definite finding, prior to carrying out the operation. We would like to refer to Prasanth S. Dhanaka v. Nizam''s Institute of Medical Sciences and Others, I (1999) CPJ 43 (NC), wherein inadequacy of diagnostic procedure in pre-operative stage has been held to be deficiency in service.

LEARNED Counsel for the appellant further submitted that the doctor had not given medical report even despite demand and resultantly his son could not be admitted and treated at Bhilai Hospital. He also submitted that the opposite party/respondent never told the complainant that his son was suffering from cancer. The opposite party/respondent had denied the allegation and had averred in the written version that though the complainant has alleged that complete documents were not provided yet it is evident from the documents of further treatment at Bhilai and Durg that the patient was treated as a cancer patient on the basis of documents given by the opposite party. It was submitted by learned Counsel for the respondent that the complainant had deliberately not filed complete bed head ticket. He further submitted that from the documents of treatment of Bhilai Hospital it is demonstrated that the patient was advised to go for treatment at Tata Memorial Hospital, Mumbai and that in case history of the patient it is recorded that the patient was operated and he had Non-Hodkins Lymphoma. LEARNED Counsel for the respondent further submitted that such details cannot be recorded in absence of documents relating to previous treatment. He further submitted that after receiving the Biopsy report the respondent had handed over all the documents to the complainant. It is a matter of common knowledge that the hospital or nursing home is obliged to maintain proper record of the treatment given to the patients. Even in case the documents were handed over to the patient, the opposite party was in a position to prove his stand by producing copies of the said record instead of levelling allegations on the complainant/appellant. Non-production of the documents by the opposite party leads to an adverse inference against him. However, by no stretch of imagination it can be believed that the patient could not be admitted and treated at Bhilai Hospital simply because the documents relating to previous treatment were not available. The reason for non-admission appears to be that from the biopsy report it was apparent that the patient was suffering from cancer and probably that was the reason why he was referred to Mumbai instead of admitting him to Bhilai. It is specifically averred by the complainant that the opposite party never told him that his son was suffering from cancer. We are of the opinion that besides containing details of treatment given by the doctor the documents, as produced by the doctor, would also have revealed that the opposite party had informed the complainant that his son was suffering from cancer and had advised him to get him treated at cancer hospital. We are of the opinion that the prognosis part is very important with regard to the treatment of a patient and Clause 12 of the Code of Medical Ethics relates to the same and it is being reproduced hereinbelow: ''12. Prognosis-The physician should neither exaggerate nor minimize the gravity of a patient''s condition. He should assure himself that the patient, his relatives or his responsible friends have such knowledge of the patient''s condition as will serve the best interests of the patient and the family''. In our opinion had the doctor told the complainant regarding his son suffering from cancer the complainant would have more conveniently got him treated at Cancer Hospital, Raipur rather than to consult other doctors. Further non-production of documents available at the hospital further raises an inference against the doctor. It appears that the opposite party doctor has failed to perform his duty towards the patient, as provided under the Code.

The next ground on which the appellant has challenged the impugned order is that the opposite party was not competent to carry out the operation in absence of any neuro-surgeon. The learned Counsel for the appellant submitted that the complaint was against a doctor and that is the reason why other doctors who treated the patient subsequently were not at all willing to swear affidavit in support of the complaint or to appear before the District Forum for giving their evidence. However, despite repeated efforts made in this regard one of the doctors who treated the deceased appeared before the Forum and his evidence was recorded. The said Dr. Urgaonkar has stated that an orthopaedic surgeon is competent to carry out operation of the spine and had stated on his own that the surgeon should carry out the operation in presence of a neuro-surgeon. He further stated that though such operation is to be conducted in presence of a neuro-surgeon but it cannot be said that an orthopaedic surgeon is not competent to perform such operation in the absence of a neuro-surgeon.

IN Prasanth''s case the complainant was a 20 years old Engineering student who was admitted for treatment of benign tumour and after undergoing surgery for excision biopsy became paraplegic. Excision surgery was performed without complete involvement of neuro-surgeon and the same has been held to be serious lapse on part of the opposite parties. IN the case in hand neither any other test after the provisional opinion expressed in the CT scan report was carried out nor biopsy was done though the same could be carried out by means of needle biopsy, without even operating the patient. As already discussed the surgery was admittedly planned surgery and not performed in emergency. Moreover, before venturing surgery for removal of mass or tumour no investigation was carried out without ascertaining the nature of tumour. As laid down in the text on surgery by Bailey and Loves page 572-3 in case of spinal tumour 3 types of biopsy prior to surgery is possible-excisional, incisional and needle biopsy. IN the present instance it appears that it was expected of the surgery to ascertain the nature of tumour before arriving at a decision regarding undertaking the surgery. IN all probability had the fact or malignancy been known surgery would never been attempted. Further the doctor has neither pleaded nor proved that there was any emergency to call for immediate surgery. From the material on record it appears that the patient had consulted the doctor on 16.7.1997, C.T. scan was done on 29.7.1997 and thereafter surgery was done on the following day i.e., 30.7.1997. The respondent doctor has totally failed to assign any reason as to why he did not involve a neuro-surgeon in the operation except alleging that he, as an orthopaedic surgeon, was competent to carry out such operation. It may be noted that the victim who was operated upon on the complaint of backache was rendered paralytic after the surgery. However, in view of the findings given in Prasanth''s case such logic cannot be accepted and it is apparent that by not involving neuro-surgeon in the operation the respondent has rendered himself guilty of negligence and deficiency in service. In view of the above we are of the opinion that the respondent doctor was guilty of negligence and deficient in service while treating the son of the complainant. We are of the considered opinion that the District Forum has erred in dismissing the complaint. Hence this appeal is allowed. Order of the District Forum is set aside. The complainant had claimed a sum of Rs. 4,50,000 towards damages for untimely death of his son due to negligence of the opposite party/respondent.

CONSIDERING the facts and circumstances of the case, it is clear that appellant must have put to actual expenditure of not less than Rs. 50,000 towards treatment by the respondent doctor as well as subsequent treatment following thereafter which had to be undertaken on account of negligence on the part of the respondent. Further life expectancy of the deceased was shortened on account of deficiency in service by the respondent doctor and mishandling of the treatment of the deceased, as has been discussed in details above. The complainant also have suffered pain and suffering and inconvenience. In view of the above, we are of the considered opinion that of Rs. 2,00,000 deserves to be awarded to the complainant as non-pecuniary damages. Accordingly, the appellant is entitled to total compensation of Rs. 2,50,000 from the respondent. Accordingly the appeal is allowed. Impugned order dismissing the complaint is set aside. It is directed that respondent shall pay to the appellant a sum of Rs. 2,50,000 (Rupees two lacs fifty thousand). The respondent shall also pay to the appellant interest @ 9% p.a. on the above amount from the date of the complaint. The respondent shall pay the above amount within a period of 3 months from the date of this order, failing which interest @ 12% p.a. shall be payable from the date of default. The respondent shall bear its own cost of this litigation and shall pay that of the appellant, which is quantified at Rs. 5,000 (Rupees five thousand). Appeal allowed.