Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.108/18.04.2017
Sandeep (father of Master Prince)
R/o Vill & PO & Tehsil Mehan.
District Rohtak, Ward no. 11 Haryana …Complainant
Versus
OP1. Dr. Anil K. Monga, ENT Hospital
B-7, Derawal Nagar, Near Metro Pillar No.3,
And Model Town Metro Station,
Delhi-110008
OP2. Sir Ganga Ram Hospital,
Rajinder Nagar, New Delhi-110060 ...Opposite Party
Date of filing: 18.04.2017
Coram: Date of Order: 01.07.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no.10)
1.1. (Introduction to disputes of parties) –The complainant has grievances of medical negligence and deficiency of services against OPs that the OP1 had performed surgery and implant cochlear to complainant’s son Prince aged about 7-1/2 years, however, because of medical negligence and deficiency of services Master Prince had suffered serious ailment of meningitis besides the implant was to be removed. The OPs were requested for refund of cost of implant and other costs of surgery and therapy but no result. That is why the complaint for total amount of Rs. 19 lakhs spent on the treatment Master Prince (which also includes of cost of cochlear implant machine of Rs. 9,48,000/-, cost of surgery of Rs. 75,000/- and cost of therapy Rs. 25,000/-) besides to award appropriate compensation in lieu of causing headache and brain infection to the Master Prince, appropriate penalty for misleading assurance and guarantee for 100% recovery of ailment and other appropriate relief.
1.2. The complaint is opposed by the OP1 & OP2 by way of their joint reply that neither there is any medical negligence nor any deficiency of services on the part of OPs. The said surgery/implant was performed by OP1 and there is no role of OP2/hospital at all. It was an uneventful implant of the cochlear and the Master Prince continued with the same. There was not only informed consent for ear surgery by the complainant before undergoing the treatment and surgery and for post surgery complications, which includes meningitis as one of them.
1.3 Since many medical terms are appearing in the record, it is appropriate to mention them with simple meaning at this stage to apprehend and appreciate the case of parties.
(i) Congenital deafness - hearing loss, that is present at birth
(ii) Profound SNHI - it is specific form of sensorineural hearing loss caused by congenial or acquired lesions of the cochlea, auditory nerve and auditory center
(iii) ASSR - (Auditory Steady State Response) ASSR allows the hearing care professional to create statistically valid audiograms for those unable or unwilling to participate in the traditional behavioral test.
(iv) BERA (Brain Evoked Response Auditory) test - BERA is a hearing examination performed on children
(v) Otitis media - Otitis media is inflammation or infection located in the middle ear.
(vi) cochlear implant - A cochlear implant is a small complex electronic device that can help to provide a sense of sound to a person who is profoundly deaf or severely hard of hearing. The implant consists of an external portion that sits behind the ear and a second portion that is surgically placed under the skin.
(ii) Meningitis - Meningitis is an infection and inflammation of the fluid and membranes surrounding the brain and spinal cord. These membranes are called meninges. The inflammation from meningitis typically triggers symptoms such headache, fever and stiff neck.
1.4 This complaint was filed in person and the contents of complaint are either in ‘first person’ or in ‘third person’, however, appropriate care will be taken while mentioning the case of complainant irrespective of what expressions are given in the complaint. Moreover, the complainant was asked during the course of his appearance that he may have legal aid counsel or assistance of counsel but he maintained throughout that he is able to present his case and communicate the grievances; he has not availed the services of private or legal aid counsel. Although, it was not recorded in the previous proceedings but it is appropriate to mention that since it was asked to the complainant orally. He was working as a teacher.
2.1. (Case of complainant) – The complainant’s son, now namely Prince, born on 15.08.2004 was having weight of 3.15 kg at the time of his birth, he was discharged in normal condition.
However, after 2-3 months, it was observed that the child is deaf and dumb, it was confirmed by ENT Department PGIMS Rohtak by conducting BERA test. Another test was conducted by AIIMS in March 2005 and there was same report.
2.2. Subsequently, the complainant tried for his son in Sir Ganga Ram Hospital in OPD of Dr. Anil Monga, ENT Department. After conducting the relevant tests and its report, the OP1/Dr. Anil Monga guaranteed to treat Prince by implanting cochlear and also assured that after implantation of the machine, Prince would be able to hear and speak like other children. He has also given estimate on the OPD card. Since it was very huge amount and OP1 was also requested but the complainant was advised that it is question of life of Prince as well as to believe in his treatment for which guarantee was being given. Therefore, the complainant started arranging amount for the operation and implant of cochlear after such assurances by OP1.
2.3. The operation was performed on right side ear on 12.04.2012 and Prince was discharged on 13.04.2012, however, during operation two electrode of machine were damaged by the implanting team at the clinic of OP1 at Model Town, Near Pillar No.13 Metro.
The Prince was called after three weeks at Asha Clinic (at 15/76 Old Rajinder Nagar, New Delhi) for switch on test of right ear. When the machine was switched on, Prince started having pain and his right eye started twitching (i.e. open-close, open-close, open-close…); Prince started weeping with the pain. When Dr. Asha was enquired as to what was happening, she informed that it happens so, in starting but it would be alright later on. Thence, therapy was started. However, the condition of Prince remained same without any improvement. It was a routine for the complainant to come to Delhi from Mehan for therapy of the child. After brain mapping, when electrodes were being switched on, there was high pain and headache started automatically, for which pain killers were prescribed to calm the pain.
2.4. The complainant was tired financially and physically, therefore, he asked OP1 that there were assurances and guarantee for complete recovery besides complainant had invested huge amount. The child is being called repeatedly for therapy and brain mapping, which is also preventing the complainant from attending his duties. There was misleading assurances and guarantee for 100% successful treatment after implant of the machine. But OP1 uttered that nothing more can be done and God is not favoring the complainant, what a doctor can do further?.
2.5 On 02.05.2015 Prince was admitted at Sir Ganga Ram Hospital with high fever and headache and he was diagnosed meningitis/brain infection due to cochlear implantation, it may cause risk of life of Prince. After considering the reports of tests conducted, cochlear machine was removed by OP1.
It was handed over to the complainant by stating that it is no use for Prince, however, the complainant enquired that such costly machine was purchased at the advice and assurances of OP1. Then OP1 offered Rs. 2 lakh for the machine if it is returned to OP1. It is a costly machine and it is lying with the complainant but the complainant and others are weeping on this. Prince’s medical condition become worse than earlier and he is suffering from headache and brain pain intermittently. That is why the complaint.
2.7 The complaint is accompanied with copies of - OPD card of 04.04.2012 (with overleaf impression of estimate prescribed), invoice dated 12.04.2012 for cochlear implant of Rs. 9,48,000/-, citation the Dainik Bhaskar dated 19.02.2016 (containing news about disease meningitis) and ration card.
3.1 (Case of OP)-The OP1 and the OP2 by way of their joint reply opposed the complaint while giving profile and reputation of OP2 in the country and abroad, having qualified doctor as well as rendering super specialty medical services. It is unmatched medical services. There is no cause of action in favour of the complainant and against the OPs. The said surgery was performed by OP1 at its private clinic and OP2 has nothing to do with that surgery. The complaint contains concocted and fabricated facts, therefore, it is liable to be dismissed. The cochlear implant surgery was done in the year 2012 at private clinic of OP1 but complaint was filed in 2017, therefore, it is barred by law.
3.2. The OP2 is unnecessarily impleaded in the complaint as the complaint is of dispute between the complainant and OP1. Patient Prince was admitted and treated in the hospital of OP2 on 02.05.2015 and 27.07.2015 with the complaint of fever, vomiting, ear-ache, headache and ear discharge. The patient was accordingly treated in hospital of OP2 by doctor as per standard medical protocol and he was discharged in satisfactory condition on 13.05.2015 and subsequently on 08.08.2015. The complainant has not alleged any medical negligence or deficiency of services in treatment administered to the patient.
There is no evidence of any expert/medical professional to support the allegations of the complainant. As per Martin F. D’Souza Vs. Mohd. Ishfaq (AIR 2009 SC 2049) a prima facie must be there on record on medical expert to support the allegation but it is not there. In Ms. Shanta Ben Mulji Bhai Patel & Ors. Vs. Beach Candy Hospital and Research Centre and Others [1 (2005) CPJ 10 (NC)] it was held that the doctors have performed their duties to the best of their ability with due care and caution; it cannot be held that there is deficiency of services … Simply because something goes wrong, conclusion of deficiency cannot withdrawn and in Achutrao Haribhau Khodwa Vs. State & Maharashtra & Ors. 1 (1996) CLT532 (SC) it was held that courts would indeed be slow in attributing negligence on the part of a doctor, if he has performed his duties to the best of his ability and with due care and caution.
3.3. The patient namely Prince 7-1/2 years old came in April 2012 to OP1 at its private clinic at Derawal Nagar with complaint of no hearing and no speech/language. He was investigated/hearing assessment test and BERA/ASSR was conducted, he has profound nervous weakness. The CT/MRI of 05.04.2012 showed presence of abnormal cochlear development-incomplete partition- mondini deformity. Berrittini et al have seen that this deformity may have communication with internal auditory canal. The parents of patient were informed about options available for the treatment to make choice out of them, viz. (1) to admit the child in school for deaf and dumb and learn sign language and carry on with life or (2) undergo cochlear implantation. Cochlear implant is a good option to enable the child to hear implant and thereafter learn and develop speech and language communication like other children of the same age group. Surgeons from different centre all over the world perform cochlear implant in such patients.
Further, faber et-al and Contrera et al recommends use of cochlear implant in such patient as it helps them to build self confidence, be able to use phone and electronics devices with improved conversational ability and decreased loneliness. Berrettini et-al stated that such patients with mondini deformity suffer from profound bearing loss and get very little benefit from traditional hearing aids. Cochlear implantation in such patients is a recommended option.
3.4 There was detailed counseling done at Asha Clinic and complainant was apprised of cost and benefits of various implants of range between Rs. 5,30,000/- to Rs. 9,50,000/-, however, the complainant purchased the implant of higher range directly from ACME at his own choice. He was also informed verbally and in writing about the risks of facial nerve paralytics and meningitis. The patient underwent surgery on 12.04.2012 after proper written informed consent. The surgery was smooth and uneventful. The implant was done with proper antibiotic and adequate sealing with fascia and muscles and all necessary precautions after introduction of array into the cochlear. Intra operated NRT (neural response telemetry) was satisfactory showing proper implant placement and functioning electrodes except electrodes 8 and 15. 20 out of 22 electrodes were functional in this implant. Otherwise, minimum 12 functioning electrodes are required for good hearing and speech developments.
The patient was discharged on 13.04.2012 from the hospital, the complainant being father of complainant, confirmed that he was satisfied with the treatment given before leaving the hospital.
3.4 After 3 weeks the patient was switched on at Asha Clinic and remained under contained rehabilitation process for next one year and four months; he had been progressing well as per mapping reports and he was last seen at Asha Clinic on 12.09.2013. Till that time the patient had not post surgical problems. He was advised regular follow up. The complainant was aware about to and fro travelling needed for post operative therapy.
The patient came again after gap of one year and eight months to the pediatrics department of OP2 on 02.05.2015 with complaint of fever, vomiting earache, headache and ear discharge. There was history head trauma and meningitis one year ago; he had been at PGI Rohtak from where he was referred to OP2 hospital. He was diagnosed meningitis after tests. HRCT temporal bone and CECT of brain were done on 04.05.2015, which revealed prominent blood vessels, findings suggesting meningitis and note made of common cavity both sides, operative changes on right side; and misplaced cochlear implant array in region of IAC (internal auditory canal) which may be route of infection to brain. It was decided on 09.05.2015 to extract the cochlear implant to remove the possibility to infection through this route; when his condition was suitable for anesthesia for explantation of the cochlear implant was done on 11.05.2015. Proper sealing of cochlea with muscles and fascia was done. The patient was discharged on 13.05.2015 with prescriptions. The patient remained out of touch after discharge.
On 27.07.2015 the patient again came in Pediatric department of OP2 with complaint of fever and vomiting, after tests, he was diagnosed of meningitis. He was treated for 10 days intensively with IV antibiotics and was discharged on 08.08.2015 with advises to continue medication. He was out of touch after that period and never came back with reasons known to him. In May 2015 and July 2015 the admission occurred after attack of otitis media, which are known precipitating factor for meningitis in patient of mondini-deformity with or without implantation. The cochlear implant of master Prince was removed after controlling infection; the implant was handed over to the complainant. When complainant’s father wanted financial relief, Asha Clinic tried to locate a cochlear implant recipient, who had lost outside processor and was willing to purchase the speech processor from him at a subsidies rate of Rs. 2 lakh, which was declined by the complainant.
3.5. The OP1 had not given any guarantee or assurances as alleged but it was choice of complainant for cochlear implant surgery. The implant was purchased by the complainant himself. The OP1 has not offered the amount of Rs. 2 lakh in lieu of implant but the Asha Clinic to try to locate recipient and amount offered was declined. The implant was functioning well intra-operatively and post-operatively as documented by the NRT and mapping between 12.04.2012 to 19.09.2013, then patient was lodged to follow up. It does not make out case of medical negligency or of deficiency of services. The complaint deserves dismissal.
3.6 The reply is accompanied with copies of - prescriptions/OPD card dated 04.04.2012 of OP1, invoice dated 12.04.2012 of implant, informed consent for ear surgery bearing registration no. 1899, ear/mastoid surgery OT notes dated 12.04.2012, post operative treatment and anesthesia note, literature on meningitis following cochlear implantation.
4. (Replication of complainant) –The complainant filed replication to the written statement of OPs, however, in brief the complainant denies all the fact and stand taken by OPs. The child Prince was in unbearable pain in his head, twitching start in fascia nerve and out of 22 electrodes only 10 electrodes were in working condition. The twitching continue as usual causing usual headache. The complaint is reaffirmed as correct, while reproducing the bill cost in paragraph 6 of the replication and accompanied with discharge summary issued by OP1, discharge summary of 25.11.2013, 13.05.2015 and 08.8.2015 issued by OP2, OPD card of civil hospital Rohtak, bills and receipts.
5.1. (Evidence)- In order to establish the case against OPs, the complainant Shri Sandeep led evidence by filing his detailed affidavit with the support of documents filed with the complaint. The affidavit is on the lines of complaint.
5.2 OP1/Dr Anil Monga, Sr Consultant, being treating doctor, Department of ENT filed his affidavits of evidence, by narrating the facts and circumstances fortified with the documentary record.
5.3. The OP2-Hospital led its evidence by filing affidavit of its authorised representative Dr (Brig.) Satendra Katoch, Addl Director - Medical; affidavit is replica of written statement. However, many papers appended thereto were not part of its written statements.
6.1 (Final hearing)-The complainant and the OPs filed their respective written arguments; the written arguments are blend of the pleadings and evidence, being replica of case of the parties. It does not require to repeat them.
6.2. The parties were also give opportunity to make oral submissions, however, the complainant himself made the oral submissions but on the other side Sh. Subhash Kumar, Advocate for OPs with OP1 made the submissions.
7. (Findings)- The contentions of parties the sides are considered, keeping in view their respective case, evidence on record, statutory provisions of law, case law/ precedent.
8.1. The OPs have took the objection that the complaint filed on 18.04.2017 is time barred since the surgery of right ear for cochlear implant was done on 12.04.2012. The prescribed period for filing the complaint is two year. On the face of record the complaint is barred by period of limitation.
On the other side, complainant requests that the complaint was filed after Master Prince was having headache, earache and meningitis, for which the complainant alongwith Master Prince with family member were roaming from hospital to hospital and finally the implant was removed during treatment at the hospital of OP2. The complainant request to his knowledge there is no delay in filing the complaint.
8.2 As appearing, the complainant is not acquainted with the provisions of law and that is why he has mentioned the facts in a simple way. It needs to look at the record. The patient/Master Prince was admitted in the hospital of OP2 on 27.08.2015 and he was discharged on 08.08.2015 and the discharge summary was issued clearly mentions that cochlear implant was removed on 11.05.2015. The cause of action may not necessarily be a fixed point of time but it is a bundle of facts, which may have a series from time to time. The patient was implanted cochlear on 12.04.2012 by OP1 and the same was removed on 11.05.2015, which is also mentioned in another discharge summary issued by OP2 that Master Prince was admitted on 02.05.2015 for complain of meningitis etc. and he was discharged on 13.05.2015. By reading the medical record together, it is appearance that Master Prince was continuing with medical treatment after implant of cochlear till it was removed. Therefore, by computing the period either from 11.05.2015 or from 08.08.2015, the complaint filed on 8.04.2017 is within the prescribed period of section 24A of Consumer Protection Act 1986. This contention is disposed off.
9.1 The plea of complainant is of medical negligence and deficiency of services for want of fulfilling the promise/assurances/guarantee given for recovery of patient Prince to hear with aid of implant, however, the implant was to be removed for want of proper its settlement, surgery and consequently suffering of fever, head-ache etc and Prince could not started hearing
9.2. Since one of factor to be determined 'whether or not there is medical negligence, it is appropriate at this stage to first refer a precedent on the point of medical negligence, test, guidelines and scale to be applied to determine it, ethics involved and so on. It is laid down in precedent 'Vinod Jain Vs Santokba Durlabhji Memorial Hospital AIR 2019 SC 1143 [paras, 8, 9 and 12; in which the previous precedent Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & ors AIR 2010 SC 1050 is also referred with its relevant paragraphs are Para 22 & 89] -
[Para 8] "22. Negligence. -Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such à person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient"
[para 9]. A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view (Bolam v. Friem Hospital Management Committee -1957 1WLR 582). In the same opinion, it was emphasised that the test of negligence cannot be the test of the man on the top of a Clapham omnibus. In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent, and it would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
A situation, thus, cannot be countenanced, which would be a dis-service to the community at large, by making doctors think more of their own safety than of the good of their patients.
[12]. In para 89 of the judgment in Kusum Sharma & Ors. the test had been laid down as under:
"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standard so far reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one avail-able, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/ hospitals particularly private hospitals or clinics for extracting uncalled for compensation. The malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professional.
As certain tests, guidelines and rule have been laid down in precedents Vinod Jain Vs Santokba Durlabhji Memorial Hospital AIR 2019 SC 1143 [paras, 8 9 and 12] & Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & ors AIR 2010 SC 1050, therefore, from that point of view, duties are prescribed for the medical profession, they are (i) a duty of care "in deciding whether to undertake the case"; (ii) a duty of care in deciding "what treatment is to be given" and (iii) a duty of care "in administration of that treatment". On failure to observe them or any of them, it will be case of medical negligence. Therefore, it would be appropriate to take the features of this case one by one from that points of view of those tests namely (i) a duty of care in deciding whether to undertake the case; (ii) a duty of care in deciding what treatment is to be given and (iii) a duty of care in administration of that treatment.
10. At the out-set, there is no allegations against OP2 for breach of any of the duties in respect of implant of cochlear on 12.04.2012.. When, complainant's son Prince came to OP2/Hospital in November 2013 [much after surgery performed by OP1 in private clinic on 12.4.2012], the OP2 had taken case of patient Prince and provided all medical treatment in November 2013 and subsequently in May 2015, July/August 2015. Therefore, no case of medical negligence and of deficiency of services is alleged or proved by the complainant, and accordingly no such case is made out against OP2/Hospital.
11.1. Now case in respect of OP1/treating doctor and patient Prince is being discussed. Firstly, issue of duty of care in deciding whether to undertake the case? The first issue is whether the OP1 had taken proper care to undertake the case of complainant. The case of OP1 and their documentary record have already been referred.
11.2 There is no dispute that the patient Prince was brought to the private clinic of OP1, who is qualified doctor, he is in the field of ENT, the complainant was diagnosed of the diseased properly and the same was attended by him. There is no breach of 'duty of care in deciding to undertake the case'. This clearly proves that OP1 had undertaken the duty to entertain the case of complainant properly. The first component stand determined accordingly.
12.1 The second point is 'of duty of care in deciding what treatment is to be given to complainant' and the third component is of 'duty of care in administration of that treatment' to the patient. The facts and features are inter-related, therefore, both of them are taken together.
There is juxtaposition stand of the complainant and of the OP1, as the complainant contends that the patient Prince had undergone cochlear implant and surgery of right ear since OP1 had advised, assured and guaranteed that patient will be recovered 100% and he will be able to hear and speak like other children. It has not happened. The complainant had spent huge amount on treatment, implant and surgery. In fact, the surgery and implant result into serious ailment of meningitis and ultimately implant was to be removed, which was removed in the hospital of OP2.
But OP1 denies the allegations of medical negligence or deficiency of services, since the complainant was explained the condition of Prince as well as the options available for treatment but the complainant had chosen cochlear implant of right ear surgery. The surgery was performed with all protocols and the surgery was uneventful vis-à-vis the patient had not followed up as advised. The surgery was performed after having informed consent, in which it is clearly mentioned in clause 6-Facial nerve decompression-facial paralysis due to any pressure on the nerve inside the mastoid bone can relieved by opening the bony nerve canal (facial nerve decompression). Sometimes nerve sheath is also incised to release pressure, nerve continuity if broken is restored either by direct end-to-end suturing or grafting a nerve segment if gap is big. The clause 9 (of post operative period complication of ear surgery) also was informed, which reads “lateral sinus thrombosis, brain abscess, meningitis”. The declaration was made by the complainant and others after understanding and consent was given. Thereafter, surgery was performed. The OP1 has performed surgery after such consent and the surgery was performed with all medical protocols.
12.2 This rival contentions of parties are considered on this issue, in the light of their respective pleadings and documentary record. The documentary record has been proved by the parties, which includes clinical reports, discharge summary issued by OP1. The following conclusions are drawn:-
(i) The surgery was performed after informed consent for ear surgery and the complainant was informed in advance about myringotomy is a procedure to release out pus/fluid from the middle ear and facial nerve decompression. The OP1 has proved ear/mastoid surgery OT notes. However, the complainant could not establish that the surgery performed was other than consented for.
(ii) The complainant also could not prove either from the OT notes or from other record that there was medical negligence in the surgery for cochlear implant.
(iii) The complainant was also informed about post operative period complication of ear surgery, which includes meningitis. Therefore, the complainant could not establish that the meningitis was result of medical negligence while implanting the cochlear.
(iv) There is no other medical record or evidence or opinion to infer that the diagnosis made and the surgery performed by OP1 was contrary to medical protocols.
(v) The cochlear implant was removed on 11.05.2015 because of medical necessity, however, it is to be read with the post surgery complications consented for instead of medical negligence or want of taking care after surgery.
Thus, there is nothing emerging against OP1 in the record regarding performing the second duty and the third duty. It cannot be inferred as medical negligence or deficiency of services. There is no evidence of want of taking care against the OP1 or of deficiency of services after surgery. There is no other contrary evidence by the complainant to disprove it.
13. So, the complainant could not prove medical negligence or circumstances of medical negligence against OP1. It also stand established that OP1 was not negligent in performing its duty of care in undertaking the case of patient, or deciding for treatment to be given and duty of care in administration of that treatment'. There is also no roof of putting implant was improper or it was forced on the complainant. None of discharge summary proved suggests or infers or opines that implant was not proper or surgery was not proper to that effect.
14. In view of the above conclusions, it is held that for want of establishing the case of medical negligence against OP1 and OP2, or of deficiency of services; the complaint is dismissed. No order as to costs.
15. Announced on this 1st day of July 2024 आषाढ़ 10, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[ijs-80]
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