Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:
(1) This appeal takes an exception to an order dated 17.08.2010 passed in Consumer Complaint No.239/2010, Mrs.Jagdevi Gurupadappa Kumbhar V/s Chairman/Manager, Ashwini Sahakari Rugnalaya and Research Centre and Ors., by District Consumer Disputes Redressal Forum, Solapur (‘Forum below’ in short).
(2) It is the grievance of the Appellant/complainant that when she was operated for removal of total thyroid gland due to malignancy at Opposite Party No.1 hospital, the Opposite Party No.2 - Dr.Birajdar carried out operation on 28/11/2006. However, while removing thyroid gland, accidently he had not taken care to keep intact parathyroid gland and did not save the same. It created further complications during post operation for the Complainant, particularly reducing her calcium level and as a result of which she now has to take medicines regularly to maintain calcium level. Therefore, alleging deficiency in service on the part of Dr. Birajdar on that count, she filed the consumer complaint.
(3) Both the hospitals and Dr.Birajdar denied any negligence on their part. Dr.Birajdar had to remove the thyroid gland which he suspected to be malignant to save life of the patient. He had further referred that even as per the histopathology report only one parathyroid tissue/gland removed leaving other three intact. The complications which faced by the Complainant are normal in such types of cases and there is no medical negligence on the part of Dr.Birajdar who is a renowned surgeon in his field, while carrying the operation. Forum below considering the pros and cons of the material placed before it and came to the conclusion that there is no deficiency in service, especially against the hospital and Dr.Birajdar and consequently dismissed the consumer complaint.
(4) Opposite Party No.3 is the Insurance Company which entered into the insurance agreement with Dr.Birajdar to indemnify him in case any award is passed against him.
(5) We heard Mr.P.B. Shende, Ld.Counsel for the Appellant. Perused record.
(6) Merely because one of the parathyroid tissues alleged to have been removed while carrying out operation in question, it does not mean that Opposite Party No.2 Dr.Birajdar failed to take any due care and failed to observe due protocol as per reasonable medical norm in the given circumstances. In the written version, the Opposite Parties narrated the events as under:
“In fact, the Opponent has conducted the operation of the complainant for long time for about 4:30 hours. Before conducting the operation all precautions were properly taken and tests were duly made. While conducting the operation utmost care was taken by the opponent. He has removed all possible thyroid glands. But thyroid lobe which was on the left side was harboring cancer. The Opponent has taken extra precautions on the left side so as not to leave any cancer tissue of thyroid and not to cause any harm to the life of the complainant. The opponent has removed whatever tissue was looking like thyroid, as per the teaching of cancer surgery. The primary concern of operation was to save the patient from cancer which will cause damage to the other parts of the body and loss of the lift. Hence, opponent has saved the life of the complainant. In fact there is no such complication arose due to the operation conducted by the opponent. Even it can be seen that there was no any problem about first 72 hours hospitalization. The particular physical problem might have arose due to physical condition of the complainant and as per the medical science such problem can arise in some cases or which opponent cannot be responsible.
In fact, the Opponent has conducted the operation of the complainant for long time for about 4.30 hours. Before conducting the operation all precautions were properly taken and tests were duly made. While conducting the operation utmost care was taken by the Opponent. He has removed all possible thyroid glands. But thyroid lobe which was on the left side was harboring cancer. The Opponent has taken extra precautions on the left side so as not to leave any cancer tissue of thyroid and not to cause any harm to the life of the Complainant. The Opponent has removed whatever tissue was looking like thyroid, as per the teaching of cancer surgery. The primary concern of operation was to save the patient from cancer which will cause damage to the other parts of the body and loss of the life. Reduction of calcium level is in fact not the problem of operation conducted by the Opponent.
This patient’s postoperative histopathology report shows only one parathyroid. Still she has 3 Parathyroids left in the body. Even half to one parathyroid is enough to maintain normal life. Normally 4 Parathyroids are present in body.”
(7) There is no evidence to contradict these vital facts narrated by the Opposite Parties. Considering the preponderance of probability and in the absence of material to contradict, we find no reason, not to accept above referred version of Dr.Birajdar.
(8) Considering the above referred facts and also opinion of independent expert -Dr.Pankaj Chaturvedi, Associate Professor & Surgeon of Tata Memorial Hospital to which extensive reference is made by Forum below in the impugned order and further testing the above referred facts applying the bolam test, we find that Forum below rightly appreciated the material placed before it and came to the conclusion that Complainant failed to establish any medical negligence on the part of the hospital and Dr.Birajdar. In fact, there is no negligence as alleged by the Complainant against Opposite Party No.1 hospital. Thus, we find the appeal devoid of any substance. We hold accordingly and pass the following order:
O R D E R
(i) Appeal is not admitted and stands rejected accordingly.
(ii) No order as to costs.
