RAM CHANDRA RAI vs Md. Zaheer

THE present Revision Petition has been filed before this Commission under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 11.01.2008 in Appeal No. 327 of 2001 passed by the State Consumer Disputes Redressal Commission (in short, ''State Commission ''). The State Commission dismissed the Appeal. The Appeal was filed against the orders passed by the District Consumer Disputes Redressal Forum, (in short, ''District Forum '') in Complaint No. 66/2000 dated 14.06.2001.

THE present Revision Petition is filed by the Complainant, Mr. Ram Chandra Rai took his son, Mr. Amaresh (herein after referred as ''''patient '''') to Dr. Md. Zaheer, the OP, for pain in the stomach, on 24.04.2000, Dr. Md. Zaheer operated the patient on the same day. The post -operative pain did not subside, despite medicines prescribed by the OP. The OP got annoyed due to repeated enquiries by the Complainant and discharged the patient, saying that the pain would gradually vanish. Again, on 10.05.2000, the Complainant, with his son, visited the OP, for the same pain, for which the OP prescribed few medicines, but the patient got no relief. Hence, the Complainant, took his son to Dr. Ashutosh Sharan, on 11.05.2000, who performed another operation upon the patient and discharged him, on 02.06.2000, after total cure. Hence, the Complainant alleged that the OP doctor committed negligence and deficiency in service in diagnosis as well as in performing the surgery and during post -operative period. The Complainant spent a total sum of Rs.15,000/ - for the treatment, because of which he had to sell out his land. Hence, filed a complaint before the District forum for claiming a compensation of Rs.1.5 lacs from OP.

THE District Forum held the OP negligent and directed pay a compensation of Rs.50,000/ -, and Rs.500/ - towards litigation charges to the Complainant. Aggrieved by the order of the District Forum the OP preferred First Appeal. The State Commission, Bihar allowed the appeal and dismissed the Complaint. Against the order of the State Commission the Complainant filed this Revision Petition.

WE have heard the Counsel for both the parties. There is a delay of 54 days in filing this Revision Petition which has been explained in the application for condonation of delay. Accordingly, we hereby condone the delay.

ON merits, the Counsel for the OP argued that, the patient was investigated properly and thereafter, the operation was performed. The patient was suffering from appendicular perforation. Therefore, the patient was operated, immediately, on 24.04.2000 itself. During follow -up, on 28.04.2000, the wound showed pus discharge, which was sent for culture and sensitivity test, and accordingly, antibiotics and pain -killers were given. Therefore, such patients continue to show pain for few days. Hence, there was no negligence by the OP. Counsel further submitted that, due to appendicular perforation, there are chances of adhesion of jejunal loops to the colon, which will lead to post -operative intestinal obstruction. Hence, the second operation performed by Dr. Ashutosh Saran, was not a result of any wrong diagnosis or any negligence during previous operation.

WE have given our thoughtful consideration and noted that, Dr. Ashutosh was not summoned before the District Forum. The operation performed by Dr. Ashutosh Saran was not due to result of either wrong diagnosis or negligence in the previous operation performed by OP. The prescriptions of Dr. Ashutosh did not mention about any negligence. Hence, we do not think that the OP was negligent and deficient in providing the services to the patient. We have gone through the medical texts on this subject from Maingot ''s Abdominal Operation, Bailey and Love ''s Textbook on Surgery which explain about the Patho -physiology and treatment of appendicular perforation.

THE OP had properly diagnosed the case and performed operation, like a reasonable competent doctor. The OP was a qualified M.S., i.e. surgeon, his services are as per standard of practice.In A H Khodwa Vs. State of Maharashtra,(1996) 2 SCC 634 ,the Hon ''ble Supreme Court noticed that, in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

ON the basis of foregoing discussion, we do not find any negligence committed by OP in the treatment of appendicular perforation. Accordingly, we dismiss this Revision Petition. The parties are directed to bear their own costs.