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Judgment
This appeal has been filed by the appellant against the order dated 12.04.2007 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ''the State Commission'') in Complaint No. 210 of 1997 - Mrs. Seema Rani Vs. The Director, St. Stephen Hospital by which, complaint was partly allowed.
Brief facts of the case are that complainant/respondent who is a 35 years old young lady developed some problem like vomiting, breathlessness and other complications on 18.8.1996 and was shown locally to various doctors as well in G.B. Pant Hospital and was finally referred to the OP/appellant hospital, where after Eco-Cardiogram and Doppler study, the consultant Cardiologist Dr. B.B. Chanana, opined that CMV (Closed Mitral Valvotomy) be performed, i.e., open mitral valve without opening the heart, as this procedure would be more effective and less expensive. On depositing Rs.50,000/- the complainant was operated upon but instead of carrying out close mitral valvotomy (CMV) the cardio-specialist of OP hospital resorted to open heart surgery and without repairing the mitral valve, just did a valvotomy which could have been done without opening the heart and repaired mild TR without repairing the mitral valve. After discharge when the complainant was taken back to her native place in Rajasthan, she again developed problems like vomiting, breathlessness etc. On re-check up and re-tests she was advised a second operation at the cost of Rs.90,000/- by Dr. J.M.S. Thomas of OP hospital. Since the complainant''s husband is a man of moderate means and had exhausted his capacity to pay further, he consulted Dr. P.K. Goel, a private specialist and the complainant is undergoing treatment fighting all odds and suffering pain which could have been avoided, had the doctors of O.P in the first instance itself, repaired both the valves. Even the doctors/cardiologists of AIIMS have reconfirmed the diagnosis that a second heart surgery is required immediately. Alleging deficiency on the part of OP, complainant filed complaint before learned State Commission. OP resisted complaint and submitted that an Echocardiogram was carried out on the complainant on 29.10.1996 on the basis whereof a pre-operative diagnosis of Mitral Stenosis (narrowing), Mitral Regurgitation and Tricuspid Regurgitation was made. The complainant was advised surgery for the same. Before the complainant came to the OP hospital she had been treated at a number of other places without any beneficial results. Surgery was performed on the complainant by Dr. James Thomas, the Head of the Department of Cardiac Surgery in the OP hospital. Dr. James Thomas is one of the leading cardiac surgeons of the country and till date has performed about 6000 open heart surgeries. On examination Dr. James Thomas also found that the mitral valve was competent and did not require any repair. However, the Tricuspid valve required repair which was done. Ultimately the complainant was discharged from the hospital on 9.11.1996. The complainant again came to the OP hospital in December, 1996 with the symptoms of vomiting , breathlessness etc. On examination, a tentative diagnosis of mitral incompetence was made and the complainant was told that she would have to be operated for valve replacement. Mitral incompetence is a well-known risk of mitral commissurotomy which had been performed on the complainant. The complainant again required surgery because of mitral incompetence which was not because of any negligence in the operation performed upon her on 29.10.1996 but was a manifestation of a known risk of said operation. Medical studies indicate that mitral incompetence occurs in 2% to 5% of patients undergoing open commissurotomy (surgery in which the heart is opened) and in about 10% of those undergoing close commissurotomy (surgery in which heart is not opened). Manifestation is a risk inherent in a medical procedure cannot be termed as negligence on the part of the doctor or surgeon. Thus second surgery was required by the complainant not because of the negligence of the OP but because of inherent risk in the procedure performed upon. One of the complaints made by the complainant is that closed mitral valvotomy instead of open mitral valvotomy should have been performed upon her. Closed mitral valvotomy means reducing the narrowing in the mitral valve without opening the heart and open mitral valvotomy means reducing the narrowing in the mitral valve after opening the heart. Both the procedures are medically established procedures and resort to one or the other method is taken depending upon a host of factors such as the nature of the ailment, the evaluation by the surgeon as to which of the two would be more conducive in the given case, etc. It is well settled that if a surgeon or a doctor opt for one of the two accepted procedures, it cannot be said that he is guilty of negligence. It is an establsihed medical fact that chances of mitral incompetence are lesser with open mitral commissurotomy as compared to closed mitral commissurotomy. Further, open valvotomy enables the surgeon to directly check the competence of the valve and open it better. In the present case open valvotomy had to be resorted to since the tricuspid valve had to be repaired which could not have been done without resorting to open valvotomy. It was further submitted that on the basis of investigations and clinical symptoms, a pre-operative diagnosis is made which is always subject to the findings of the surgeon on the operation table. In the present case, during surgery the surgeon found the mitral valve to be competent and he duly recorded the same in the operation notes and there was no occasion for him to carry out and repair the same. Denying any deficiency on their part prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint and directed OP to pay Rs.50,000/- as compensation against which, this appeal has been filed.
None appeared for respondent even after service of notice and she was proceeded ex-parte.
Heard learned Counsel for the appellant and perused record.
Learned Counsel for the appellant submitted that inspite of no proof of negligence on the part of OP, learned State Commission has committed error in allowing complaint partly; hence, appeal be allowed and impugned order be set aside.
Learned State Commission observed that it was for the operating surgeon to decide as what method namely; Closed Mitral Valvotomy or open heart surgery should be resorted in a particular case and surgeon has not committed any error in performing surgery.
Learned State Commission allowed compensation of Rs.50,000/- on the ground that there was lapse on the part of surgeon not to repair mitral valve to avoid further surgery. It was further observed that had the mitral valve so competent as recorded by the doctor in operation notes and had there been no need to repair the same, the second surgery was not required and as complainant had to incur expenses of Rs.90,000/- in second surgery, compensation was allowed.
Learned State Commission agreed to the fact that it was for the surgeon to decide which method was appropriate for conducting surgery of the complainant, there was no occasion for learned State Commission to award compensation on account of developed incompetence after first surgery because as per Text Book of Surgery by Prof. Ab. Ahmed Hai, Mitral incompetence is a risk of mitral commissurotomy by any technique and when in the operation note it was observed that Mitral valve fully opened plus competent there was no occasion for OP to make surgery of competent valve. Merely because this complication developed after first surgery, which may develop in certain percentage of cases, it cannot be held that OP was deficient in performing first surgery.
Learned Counsel for appellant also placed reliance on judgment of Hon''ble Apex Court in Criminal Appeal Nos. 144-145 of 2004 - Jacob Mathew Vs. State of Punjab and Anr. in which it was observed as under:
49 (2) Negligence in the context of medical profession "necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the 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 practices. 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 light of aforesaid conclusion of Hon''ble Apex Court, it becomes clear that there was no deficiency on the part of OP in conducting first surgery which was acceptable to the medical profession and state of affairs of the complainant. Learned State Commission committed error in allowing compensation and appeal is to be allowed.
Consequently, appeal filed by the appellant is allowed and impunged order dated 12.04.2007 passed by the State Commission in Complaint No. 210 of 1997 - Mrs. Seema Rani Vs. The Director, St. Stephen Hospital is set aside and complaint stands dismissed with no order as to costs.