SANJAY SHARMA vs ANASINGH

THIS appeal is by opposite parties Dr. Sanjay Sharma and Dr. Pramod Buddhisagar, both working as surgical experts in District Hospital, Dhar and who have been directed by District Consumer Disputes Redressal Forum, Dhar vide its order dated 16.7.2004 in Case No. 45/2003, to pay to respondent-complainant compensation Rs. 75,000 with interest @ 6% p.a. and cost of Rs. 1,000.

THE compensation has been awarded on the finding that the appellants were deficient in service while treating late Mukesh, 7 years old son of the respondent. Late Mukesh was admitted on 19.4.2002 in Government District Hospital, Dhar with complaint of retention of urine and was diagnosed to be a case of bladder stone. On 23.4.2002 his suprapubic cystolithotomy was done under general anaesthesia by appellant No. 1 Dr. Sanjay Sharma. On 26.4.2002 Dr. Pramod Buddhisagar attended the patient and it was noted that his cathetar was not in place. On 27.4.2002 he developed fever with pain in abdomen and also vomited three-four times. He was having distension of abdomen and had no motion for last 24 hours. Dr. Buddhisagar on 28.4.2002 suspected peritonitis with obstruction and called for the medical specialist. On 29.4.2002 he was seen by the CMO Dr. Y.K. Sharma as per bed-head ticket his condition was normal on 30.4.2002. He was having no vomiting, his thest was clear and abdomen was also soft. However, on 1.5.2002 his general condition again deteriorated and there was distension and pain in abdomen with vomiting and fever. He was again seen by Dr. Y.K. Sharma on 2.5.2002 and on 3.5.2002 his exploratory lapratomy was performed by Dr. Buddhisagar under general an aesthesia. THE surgery note of Dr. Buddhisagar thus read : "ABD opened by paramidian incision upper intestinal loops distanded about 1 feet from caecum intestine watch adherent to the top of bladder peritoneum 3" portion which was separated from adhension intestional rotation around the loop corrected. Intenstion decompressed abdomen closed in layers."

Post operatively his general condition was found fair and he passed urine twice till 8.00 p.m. He was also given blood transfusion. On 4.5.2002 also his general condition was fair and he passed 200 cc urine. However, he at 10.05 p.m. developed fever and was seen by some medical expert of the hospital. On 5.5.2002 his general condition was fair. He also passed adequate urine (4-5 times). It appears on 6.5.2002 Dr. Sanjay Sharma resumed his duty and attended the patient when his condition as per bed-head ticket was not very fair, he was having 102 degree temperature. His condition deteriorated further on 7.5.2002 when in the morning his mother took the patient out of the hospital to show to some private practitioner, but returned back soon.He was also given blood transfusion. However, his condition did not show sign of improvement. He was attended by Dr. Sanjay Sharma, Dr. Budhisagar and Dr. Modi. On 10.5.2002 he was referred to M.Y. Hospital, Indore. It appears that on some complaint District Administration also intervened in the matter. Ultimately, he was taken to Indore on 13.5.2002 and admitted in T. Choithram Hospital where he died on 20.5.2002 as a result of multiple organ failure.

The case of the respondent-complainant before the District Forum was that appellant No. 1-Dr. Sanjay Sharma had charged Rs. 2,000 while appellant No. 2 Dr. Buddhisagar charged Rs. 1,500 from him for performing the aforesaid operations. He further attributed negligence to both the appellants in treating his son and it was alleged that before performing operations, no requisite tests were conducted and the operations were performed only to mint money from the complainant.

THE appellants denied all the allegations made against them and it was submitted that the entire treatment was given to the deceased Mukesh free of charge and no fees whatsoever was charged by them outside or inside the hospital. It was further contended that all necessary tests including X-rays were done before performing the said operations. THE operations were performed in accordance with the procedure laid down under the medical science and there was no negligence whatsoever on their part in treating the deceased. THE complications suffered by the deceased were known complications. Both parties led evidence in the forms of documents and affidavits. The Forum below on appreciation of the evidence led by the parties held the appellants guilty of deficiency in service and directed them to pay compensation as aforesaid.

WE have heard Mr. Mohan Chouksey, learned Counsel for appellants and Mr. Hitesh Thakur, learned Counsel for respondent. At the out-set it may be observed that the entire treatment including the said two operations of the deceased boy was done at Government District Hospital, Dhar where no fees is charged for any such treatment. The question thus arises whether the treatment given to late Mukesh in Government District Hospital, Dhar would constitute "service" as defined in Section 2(1)(o) of the Consumer Protection Act, 1986. The answer to the question we may say with respect is found in the Supreme Court decision in case of V.P. Shantha, III (1995) CPJ 1 (SC)=I (1996) CLT 81 (SC)=1995 (3) CPR 412 (SC), in following terms : "9. Service rendered at a Government Hospital/Health Centre/Dispensary where no charge whatsoever is made from any person availing of the services and all patients (rich and poor) are given free service, is outside the purview of the expression ''service'' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

Service rendered at a Government hospital/Health Centre/Dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such service would fall within the ambit of the express ''service'' as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act."

However the complainant alleged that the fees as aforesaid was charged by the appellants at their residence. In the first place, no documentary evidence of payment of any such amount to the appellants could be adduced by the respondent. Even assuming that some such amount was paid by the respondent to these apellant-doctors then it cannot be treated as a consideration for the service rendered at the Government District Hospital providing free treatment to all without any exception. The amount if any received by the appellants would be deemed to be illegal gratification which cannot be termed as consideration as envisaged under the Consumer Protection Act. Under the circumstance, the dispute as raised by the respondent did not constitute a consumer dispute and the remedy if any, of the respondent lay elsewhere not under the provisions of the Consumer Protection Act.

ON merits also it is seen that there is no expert evidence to establish negligence on the part of the appellants. The deceased son of the respondent was admitted in the hospital with complaint of pain in the abdomen with retention of urine. ON X-ray it was diagnosed to be a case of bladder stone. The surgery was the proper treatment for such an ailment and Dr. Sanjay Sharma holding Master''s Degree in surgery was fully competent to undertake the treatment. He in his affidavit has explained the details of the treatment provided by him to the deceased. The details as given by him are borne out further from the entries in the bed-head ticket of the deceased made from time to time during his admission and stay in the hospital. Although the respondent-complainant has made allegation that these papers have been prepared after the death of the deceased. However, there, is no reason to warrant such a conclusion. Many more persons including doctors and nurses, besides the appellants, were involved in preparation of these papers in due course. It was a Government District Hospital and it appeared wholly improbable rather impossible for the two appellants to prepare any such false record. At more than two places these papers contained written consent of the respondent and his wife and it is nobody''s case that thumb impressions of the respondent and his wife appearing in these papers have also been forged by the appellants. Chief Medical and Health Officer Incharge of the said hospital had himself conducted inquiry into the matter and submitted his report on 5.3.2003. He in his report has dealt with day-to-day development of the case and gave a clear opinion that there was no negligence on the part of any of the appellants. Dr. Buddhisagar who performed the second operation is also surgical specialist with long experience of surgery. He is in his affidavit dated 8.9.2003 has given all the details of the treatment given by him and reasons for performing second surgery. Neither of these two appellants were sought to be cross-examined on behalf of the complainant and there was no reason to doubt their expert testimony.

THE deceased after discharge from the District Hospital, Dhar as admitted in T. Choithram Hospital, Indore and treated there for seven days from 13.5.2002 to 20.5.2002. Original treatment papers of that hospital are also filed on record. THEre is absolutely nothing not even whisper in these documents so as to suggest any deficiency on the part of appellants in performing earlier two operations of the deceased. True the deceased had developed infection and which ultimately resulted into his death. It is aptly observed in Davis-Christopher Textbook of Surgery "most operations are successful and patient progresses smoothly to complete convalescence and rehabilitation. In certain number of instances, however, complications develop. These may be minor and easily treated, so that recovery is not delayed, or they may be major, hospitalization may be prolonged, and death may ensue. Virtually any operation may be associated with both preventable and non-preventable complications". In the instant case unfortunately the operations were associated with non-preventable complications which as already pointed out, are not unknown in medical science. Merely because some complications developed which led to the death of the patient by itself, is not sufficient to jump upon any conclusion regarding negligence on the part of appellants.

In the matter of medical negligence the Supreme Court in the case of Jacob Mathew, III (2005) CPJ 9 (SC)=VI (2005) SLT 1=III (2005) CCR 9 (SC)=122 (2005) DLT 83 (SC)=(2005) 6 SCC 1 and then in the case of Shiv Ram, IV (2005) CPJ 14 (SC)=VI (2005) SLT 498=(2005) 7 SCC 1, laid down the guidelines in following terms : "A professional may be held liable for negligence on one of two findings, either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence."

IN the case in hand as already pointed out both the appellants were experienced and qualified surgeons capable of undertaking the treatment in question. IN absence of any expert evidence it was not possible to hold them guilty of medical negligence. The Forum below in our opinion erred in holding them guilty rather the finding of guilty arrived at by the Forum below is based on conjectures and surmises not on any reliable evidence. The order passed by the Forum below is wholly unsustainable. This appeal thus succeeds and is allowed. The impugned order is set aside and the complaint of respondent is dismissed. We however make no order as to costs. Appeal allowed.