II (2006) CPJ 242 (SS) Rajkumar Khilwani Vs.DR. Pankaj Gupta and Ors.

MANU/SS/0012/2005

Equivalent Citation: II(2006)CPJ242(SS)

BEFORE THE MADHYA PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION
BHOPAL

Appeal No. 380 of 2005

Decided On: 24.11.2005

Appellants: Rajkumar Khilwani
Vs.
Respondent: Pankaj Gupta and Ors.

Judges/Coram:
N.K. Jain, J. (President) and Pramila S. Kumar, Member
Counsels:
For Appellant/Petitioner/Plaintiff: P.R. Bhave, Senior Advocate and Jitendra Rai, Advocate
For Respondents/Defendant: Subhash Gupta, Advocate
Subject: Consumer

ORDER

N.K. Jain, J. (President)

1. This appeal under Section 15 of the Consumer Protection Act, 1986 arises from the order dated 28.1.2005 of the District Consumer Disputes Redressal Forum Jabalpur in Case No. 797/2003 dismissing complaint of appellant against respondent-Dr. Pankaj Gupta and his hospital Uday Nursing Home, Jabalpur claiming damages for the alleged medical negligence on the part of respondents in the matter of performance of operation of his right car. The facts as unfolded by the evidentiary material on record and which could not be disputed before us at the time of hearing of the appeal are these:

Complainant suffered with loss of hearing power. While there was absolutely no hearing power in his left ear, his right ear was also greatly affected with foul smelling and pus discharge in that ear. On 9.9.2002 he consulted Dr. R.K. Pathak, who diagnosed it to be a case of Acute Suppurative Otitis Media (for short "ASOM"). He also got himself examined on 14.9.2002 at Frontier ENT Hospital where he was examined by Dr. K.K. Mishra who diagnosed it to be a case of Chronic Suppurative Otitis Media (for short "CSOM"). On 12.11.2002 he consulted respondent No. 1-Dr. Pankaj Gupta who runs a ENT Hospital in the name Uday Nursing Home. He also confirmed the said diagnosis. It appears that the complainant did not then opt for surgery and it was only on 4.2.2003 when he again approached Dr. Gupta and on his advice got himself admitted at respondent No. 2-Hospital on 6.2.2003. On 7.2.2003 tympanomastoid surgery was performed on his right ear by Dr. Gupta. He was discharged on 11.2.2003. Complainant on February 20, 2003 consulted Dr. Anand K. Shah, ENT Specialist and then Dr. A. Pusalkar on some latter date (not mentioned) at Mumbai. They both diagnosed it to be a case of labyrinthine damage and advised for cochlear implantation which according to them was the last and the only option for him to improve his hearing. He finally got the requisite surgery done and cochlear implanted in the right ear, at KKR ENT Hospital & Research Institute, Chennai on 2.3.2004. There he remained admitted from 28.2.2004 to 18.3.2004 and was required to spend Rs. 6,30,000.

2. The grievance of the complainant before the District Forum was that respondent No. 1-doctor was negligent in performing operation of his right ear which resulted into total loss of hearing of that ear. It was alleged that damage to the labyrinthine was caused during operation as also for want of post-operative care at respondent No. 2-hospital. The complainant thus claimed compensation of Rs. 10,50,000 from respondents. Respondents in their reply denied any negligence in performance of the operation or in the matter of post-operative care of the complainant. It was contended that while the left ear of the complainant was totally dead, the Audiogram of the right ear revealed severe to profound loss of hearing of that ear. There was pus formation and discharge from the ear and the tympanomastoid surgery of that ear was performed with limited purpose to clear that ailment and repaired the fistula at foot plate. A space was also created by placing a TORP for future prospects and tympanic membrane was repaired by putting a graft. All this, it was asserted, was done as per standard medical practice. Damage to labyrinthine was pre-existing and no immediate action for cochlear implanation could be undertaken by the respondents at that point of time inasmuch as surgery for cochlear implanted done in a dry ear. It was further explained that respondent No. 1 does not undertake surgery for cochlear implantation.
3. Both parties led evidence in the form of affidavits and documents. During hearing of the complaint the case was referred for opinion to Dr. R.K. Shukla, Professor & Head of the Department, ENT, N.S.C.B. Medical College, Jabalpur who vide his letter dated NIL opined that damage to labyrinthine of right ear was not the result of operation of respondent No. 1 - Dr. Pankaj Gupta. He was also examined on oath by the District Forum. The Forum below on evaluation of the entire evidence including the opinion and statement of Dr. Shukla came to the conclusion that there was no negligence on the part of respondent No. 1-doctor in performance of the operation in question. With this finding the complaint was dismissed with no order as to costs.
4. At the outset it is noted that complainant has led no evidence to show that there was any negligence on the part of respondent No. 1 - Dr. Pankaj Gupta in performance of the operation of his right ear. However reliance is placed on the opinion expressed by Dr. Anand K. Shah, Dr. Pusalkar as also in the discharge certificate of K.K.R. ENT Hospital. Dr. Anand Shah in his letter dated February 20, 2003 addressed to some referring doctor, mentioned "he (complainant) has had labyrinthine damage following surgery which has resulted in dead ear with vertigo." Dr. Pusalkar in his letter dated NIL noted "he has Bil. Profound S.N. Hearing loss". In the discharge summary of K.K.R. ENT Hospital it is stated:

"Bilateral hard of hearing. History of left ear surgery in childhood elsewhere. Patient allegedly gives history of undergoing right sided tympanomastoid surgery elsewhere after which the hearing is said to have deteriorated. Pre-operative audiogram not available."

However, it appears that treatment papers of respondent No. 2 hospital were not made available to the aforesaid three doctors at the time of their examination. In the discharge summary of K.K.R. ENT Hospital there is clear mention of this fact that pre-operative audiogram not available. It will be useful here to refer to the pre-operative audiogram report of the complainant filed as Annexure P-5 by respondents. It clearly recorded that while there was no hearing in the left ear, the right ear also suffered with severe to profound loss of hearing. It was, therefore, wrong to say that the complainant was having sufficient hearing power in his right ear before operation by respondent-Dr. Pankaj Gupta. Prior to his examination by Dr. Pankaj Gupta he was examined by two other doctors namely Dr. R.K. Pathak and Dr. K.K. Mishra who both diagnosed it to be a case of acute/chronic Suppurative Otitis Media. What was advised was tympanomastoid surgery and the same was performed by Dr. Pankaj Gupta. Obviously the surgery was undertaken to cure the said ailment CSOM. As already pointed out there is absolutely no evidence on record to show that Dr. Pankaj Gupta acted negligently in performance of the aforesaid surgery or that it had led to damage to labyrinthine. The observation of Dr. Shah, Dr. Pusalkar or in the discharge summary of K.K.R. Hospital were based on the statement made by the complainant.
5. All the treatment papers of the complainant filed in evidence were referred by the District Forum for expert opinion of Dr. R.K. Shukla, Professor and Head of Department of ENT, Medical College, Jabalpur. He on examination of all these papers opined:

"I hereby state that Pre-operative Audiogram of the patient shows profound Sensorineural loss in Rear, therefore, the question of Labyrinthine damage to that ear does not arise because of the Operation."

Dr. Shukla was also examined on oath by the District Forum and he clearly negatived the allegation that damage to labyrinthine was caused during operation by Dr. Pankaj Gupta. As opined by him in his report Annexure C-2, it was a clear case of pre-operative profound sensorineural loss of right ear and there was thus no question of labyrinthine damage being caused due to operation. In other words, the labyrinthine damage was pre-existing on or before the date of operation. The District Forum has analysed the entire evidence in detail and we tend to agree with the finding that no negligence on the part of respondent was etablished.
6. Laying down the criteria for judging negligence in the context of medical profession the Supreme Court in the case of Jacob Mathew, AIR 2005 SC 3685 observed:
"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 incident) at which it is suggested it should have been used.
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 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."
7. In the instant case respondent No. 1-Dr. Gupta is a qualified and experienced ENT surgeon. He thus possessed the requisite skill for performance of the operation in question. As already pointed out it could not be also shown that he did not exercise his skill with reasonable competence in the instant case. Surely he at the given time was not expected to undertake the cochlear implantation rather a complicated surgery which as explained by him he is not doing the same at Jabalpur. For what we have said above we find ourselves in full agreement with the finding recorded by the District Forum that no negligence on the part of respondents was established in the case. We thus decline interference and dismiss the appeal but with no order as to costs.