-:  ORDER  :-

( Passed on dated 31 January, 2015)

Per Shri Atul D. Alsi – Hon’ble President.

              The complainant had gone under treatment from Dr. Vikas Jain the opponent No. 2 Dr. Vikas Jain and there is lapse in the treatment so the Hon’ble Forum has jurisdiction for hearing of the complaint.

2.            The complainant went to Shukla Nursing Home, Balaghat due to pain in stomach and was advised for sonography on dated 15/03/2010 on the same day and thereafter the patient on the advice of relatives came to B. J. Hospital and Research Institute Pvt. Ltd. Gondia on 18/03/2010 and reported to Dr. Vikas Jain of B. J. Hospital and Research Institute Pvt. Ltd. Gondia and said Opponent No. 2 after verification of reports placed by complainant advised her to immediate get herself admitted for further treatment and advised her for immediate operation. 

3.            The complainant was referred for various test and laboratory report by Dr. Vikas Jain and ultimately on dated 20.03.2010 the patient i.e. complainant was operated by Dr. Vikas Jain.

4.            The opponent no. 2 Dr. Vikas Jain started his preparation to operated the complainant.  The opponent no. 2 gave, “Lumber Aneasthesia (Spinal Aneasthesia) in O.T. through needle to the complainant and operated complainant.  After operation the complainant was stayed in nursing home for approximate seven days i.e. from 18.03.2010 to 23.03.2010 and discharged her.  at the time of discharge doctor told the complainant that the backside from waist has not any type of sensation.  On this doctor told her that it will be alright after some time

5.            When the complainant went on dated 27.03.2010 she complaint Dr. Jain that the place in her backbone in which the anesthesia was given at the time of operation has gone senseless and she is in great difficulty to walk.  At this time also Dr. Jain told her that slowly-slowly it will be all-right and she will walk.  After that the situation of the complainant is becoming serious she is unable to walk seeing all this the complainant on dated 2/4/2010 came to the Dr. Chatterjee Nursing Home.  There they told her to go through X-RAY of complainant was taken by Dr. Sonal Gupta.  In the report Dr. Sonal Gupta said that the nerve of R.L. Leg does not work due to Lumber Anesthesia operation.  And also told that the Lumber Anesthesia given was at wrong place (and not between Lumber Disk).

6.            That, after sonography the complainant was admitted in Green City Multy Speciality Hospital Critical Care Center, Nagpur.  There also again the complainant gone under many types of test.  But there is not any change in the condition of the leg of the complainant.  Seeing all this, the complainant was admitted in SIMS HOSPITAL, NAGPUR.  After treatment the doctor of SIMS gave their report that the leg of complainant got paralyzed due to wrong spinal anesthesia given by the opponent no. 2 Dr. Vikas Jain at the time of operation on dated 20.03.2010 at Gondia, in his hospital.  That spinal anesthesia was negligently administered by Dr. Nitin Kotwal to complainant, which falls within medical negligence viz. deficiency in service.

7.            That it is clearly stated by the doctor of SIMS Hospital, Nagpur in their report dated 19.10.2011 opined that at the time of operation  LUMBER Anesthesia was wrongly injected in the spine.  It shows the extremely severe negligence towards the complainant.  Because of this the complainant has to live whole life depending on others. 

8.            The complainant is unmarried and due to the severe negligence of the opponent no. 2 Dr. Vikas Jain she had lead a physically handicapped life.  Because of this she is unable to lead married life its torture mentally and physically also in the future life.  The complainant has to lead her full life with the help of others.  She becomes paralytic permanently and leading ashamed life due to severe negligence of Dr. Vikas Jain.

9.            The complainant is posted as A.N.M. in P.H.C. and she has to do her duty by standing for many hours.  But due to this negligence of opponent, she is unable to do her job.  Apart from this the complainant feels very much difficulties to sit and go here and there.    

10.                   That she has no support and earning and she became destitute, suffered lovely and helpless etc.  That she was subjected to harassment, torture etc by respondent illegally and therefore prayed that she should be compensated to the tune of Rs. 10,00,000/- for such malicious harassment, torture and deficiency in service by respondent. 

11.                   After receiving the notice issued by the Forum, the O.P. appeared through their counsel and filed their written statement before the forum. 

12.                   In their reply, the O. P. mentioned it is true that complainant went to Shukla Nursing Home, Balaghat due to pain in stomach and was advised for Sonography on dated 15.03.2010 on the same day.  It is admitted that complainant came to B. J. Hospital and Research Institute Pvt. Ltd., Gondia on 18.03.2010 and referred to Dr. Vikas Jain, Gondia.  It is admitted that after verification of reports and after examination of patient, O. P. advised the complainant for immediate operation i.e. for surgery.  

              It is admitted that the complainant was referred for various tests and on 20.03.2010 the complainant was operated and Laparoscopic Surgery was done by Dr. Vikas Jain under spinal Anesthesia given by qualified Sr. Anesthetist Dr. Nitin Kotwal. 

              It is further written in reply that, O.P. No. 2 Dr. Vikas Jain admitted the complainant in B. J. Hospital and Research Institute Pvt. Ltd. on 19.03.2010 as mentioned above to be operated on 20.03.2010.  It is denied being false, bogus and baseless that O. P. No. 2 Dr. Vikas Jain gave “Lumber Anesthesia/Spinal Anesthesia” in operation theatre through needle to the complainant.  It is submitted that Anesthesia is a part of anesthesiologist and it was given by Dr. Nitin Kotwal, Senior Anesthetist of Gondia City.

              It is submitted that complainant came on 27.03.2010 for follow up visit.  Her abdominal wound was healthy and she was not having any complications related to laparoscopic surgery.  She complained of pain in right lower limb and back for which she was referred to orthopedic surgeon.  It is humbly and respectfully submitted that after 27.03.2010 complainant never turned up and met Dr. Vikas Jain for any further follow up. 

              It is true that complainant is unmarried but it is specifically denied being false, bogus and baseless that due to any negligence of opposite party No. 2 she has to lead a physically handicapped life because of this she is unable to lead married life.  It is further denied that opposite party no. 2 Dr. Vikas Jain had injected at wrong place and it shows that Dr. Vikas Jain had done his duty negligently and it comes under lack of duty as alleged by the petitioner. 

              It is true that complainant is posted as A.N.M. in P.H.C. but it is denied that she has to do her duty by standing for many hours and due to alleged negligence of opposite party she is unable to do her job.

13.                   In special pleading the opposite party submitted that the patient was successfully operated on 20.03.2010 Laparoscopically and her tubo ovarion mass was removed & the anesthesia was given by qualified anaesthesiologist Dr. Nitin Kotwal.  The procedure was uneventful.  Patient was admitted for another 3 days post operatively in the ward i.e. up to 23.03.2010.  During this period she was regularly visited by Dr. Vikas Jain and duty doctors and competent staff. 

              She was discharged on 23.03.2010 and was advised for follow up visit on 27.03.2010.  On 27.03.2010 her wound was healthy and abdomen was normal and she does not have any complications, related to surgery.  She was complaining of pain in right lower limb and back for which she was referred to orthopedic surgeon Dr. Khapre had seen her on 2.4.2010 and advised her for M.R.I. as he was suspecting some other cause for back pain related to deceases of spinal cord and not related to Anesthesia.

              It is submitted that Anesthesia given by Dr. Kotwal is on space L3-L4 (i.e. commonest site of spinal anesthesia) while the alleged report submitted by complainant i.e. document No. 5 shows that patient has hypo aesthesia in L5-S1 Dermatomes (Not related to the site o spinal anesthesia and Document No. 6 also shows that patient has slightly reduced L5-S1 interlace P.I.D.

              It is submitted it appears from Document No. 9 and 11 that patient has concealed the fact that she is suffering from Dorsal Syrinx which is a progressive degenerative spinal cord disorder at the level of T 12-L1 and neuropathy o L5-S1 dermatom whereas Spinal Anesthesia was given in L3-L4 level.  It conclusively prove that Spinal Anesthesia given to the complainant is not directly related with the decease as claimed by the complainant. 

              This is concealment and suppression of fact.  The patient had concealed the MRI report.  It may be noted that patient may be suffering from Syringomylia and it may be a coincidence that the disease aggravated after spinal anesthesia.

              The opposite party is also filing the reports/certificates of Dr. Sonal Gupta Radiologist, Dr. Patnaik Neuro Surgeon. HOD Neuro Surgery, Government Medical College, Nagpur and Dr. Kabra Neurologist CIIMS Hospital.  Above reports show that alleged problem of the complainant has nothing to do with the Anesthesia.  The opposite party is also filing the affidavit of Shri Nitin Kotwal, Anaesthesiologist and literature relating to Syringomyelia along with references which also prove that the complainant must be having pre-existing disease Csyringomyelia which might have been. 

              It prima facie shows that alleged problem of the complainant has nothing to do with the negligence in anesthesia.  It is submitted that the operation was performed as per the well established medical norms and procedure prescribed as per medical science and Anesthesia was administered with due diligence and prudent care without any negligence. 

              Without prejudice to what is stated above it is humbly and respectfully submitted that Dr. Vikas Jain i.e. O.P. No. 2 and Dr. Nitin Kotwal have got professional Indemnity Insurance from the New India Assurance Co. Ltd. and has paid premium for the same hence The New India Assurance Co. Ltd. is a necessary Party and it needs to be made as opposite party.

              It is submitted that there is absolutely no deficiency in service by the opposite party and complainant filed against opposite party is false, bogus and baseless.  It has been filed to black mail and harass the opposite party and is liable to be dismissed with costs and compensatory costs.           

14.                   The complainant has filed Copy of prescription of B. J. Hospital at page no. 13, Laboratory Report of City Pathology Lab, Gondia at page no. 14, Discharge card of B. J. Hospital at page no. 16, Copy of prescription by Dr. Vikas Jain at page no. 17, Central Hospital prescription of Dr. Khapare at page no. 18, Sonography Report of Dr. Sonal Gupta at page no. 19, Discharge summary of Green City Multispeciality Hospital at page no. 21, Provisional Diagnosis of CIIMS, Nagpur at page no. 25 on record.

15.                   The opposite party has filed Affidavit of Dr. Nitin Kotwal with documents at page no. 47 to 67, Indoor case record of B. J. Hospital at page no. 68 to 75, Certificate of Dr. Pavitra Patnaik at page no. 76, Certiicate of Dr. Sonal Gupta at page no. 77, Certificate of CIIMS Hospital at page no. 78, MIR Report at page no. 80. Disposal Needle No. 27 at page no. 81 on record.     

16.                   The learned counsel Adv. Mr. P. T. Rokade for the complainant has filed written notes of arguments on 30.09.2014.  In their written notes of arguments & as per oral argument the learned counsel argued that, the case of the complainant is a case of medical negligence, of fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.  The entire ingredients come within the provisions of Consumer Protection Act.

              It is a case of a young lady, who was is service in PHC & now unable to serve.  She has attended the age of marriage & was dreaming for bright future life to come. 

              It was the duty of O. P. No. 2 to take due care of patient i.e. complainant.  Albeit, he stated in his reply anesthesia was given through the expert doctor Mr. Kotwal, but he was authorized by O. P. No. 2 to give the complainant and hence this fact might have been known to O. P. No. 2 whether the authorized person is fit to give it or not.  So the liability can not be shifted on others also at any juncture. 

              In the affidavits Mr. Kotwal, himself has stated that the patient might had been suffering from syringomalia but O. P. No. 2 failed to provide as such prior information to Mr. Kotwal, the anesthetist.  This is the clear-cut negligency & shortcoming in O.P. No. 2’s treatment.

              The documents D-5, D-6, D-7, D-8, D-9 & D-11 are corroborating the versions of complainant.

              The reply of the opposite parties are quite surprising one and the attempts to corroborate their submission of reply by bringing the opinions of some of the medical practitioners are also very ridiculous.  As, in their opinion all the medical practitioners expressed the probabilities arisen after the application of ‘Lumber anesthesia’ but they have denied the liability of it and some others have pronounced the verdict immediately after expressing the probabilities or the word like ‘coincidence’, that medical negligence is not caused as if they are the juris to decide & pronounce such verdicts. 

              All the experts & medical practitioners seem to be admitting the consequences of improper lumber anesthesia.  Some experts have specifically stated in their certificate why wasn’t the general anesthesia preferred instead of lumber anesthesia.

              It was the duty of O.P.’s to inform the authorized all the persons about the past test before applying anesthesia but he has totally failed in extending proper information to the anesthetist, if any, as per the submission of anesthetist in his affidavit filed by opposite parties. 

              The opinion & the documents filed by O. P. 2 are subsequent and some of them don’t bear the dates and they all are made after thought protecting the larger interest of such person who is belonging to their same medical field.

              In the light of the above submission the expert opinion called sue-motto by the Hon’ble Forum is also very important.  They have also corroborated the case of the complainant the expert opinion has specifically mentioned that all the complications regarding the semi paralytic condition of complainant as expressed by Dr. Kabra, Dr. Patil are material one and can not be eradicated or set aside so easily as they are also the expert of their field. 

              The complainant’s future life is spoiled which can not be compensated.  She has lost her confidence to stand to re-utter her miserable story before anybody.

              The opposite parties & Dr. Kotwal are duty bound to compensate loss due to their negligence.  Complainant is therefore requests & submits her prayer clause be consider to compensate her irreparable loss from opposite parties and Dr. Kotwal.                        

17.                   The learned senior counsel Adv. Mr. I. K. Hotchandani for the opposite party has filed written notes of arguments on 30/09/2014.  In their written notes of arguments & oral argument the learned counsel argued that the patient was first seen on 18/03/2010 and looking to her condition she was advised for emergency admission on 19/03/2010 on History taking patient has told that she was regularly taking pain killers injections for her abdominal pain and back pain.  Patient i.e. complainant was successfully operated on 20.03.2010 laproscopically and her tubo ovarian mass was removed the anesthesia was given by qualified anesthetist Dr. Nitin Kotwal who has vast experience of 20 years in this field.  The procedure was uneventful.  The patient was admitted for another 3 days post operatively in the ward i.e. up to 23.03.2010.  During this period she was regularly visited by Dr. Vikas Jain and duty doctor.  As she was complaining of pain in right lower limb and back for which she was referred to Orthopedic Surgeon Dr. Khapre.  Dr. Khapre had seen her on 02.04.2010 and advised her for M.R.I. as he was suspecting some other cause for back pain related to diseases of Spinal Card and not related to Anesthesia. 

              It is submitted that patient has not filed MRI report and has concealed and suppressed these facts.  It is submitted that patient is suffering from Syringomylia as is clear from document No. 6 (MRI of complainant) filed by O. P. This fact was suppressed by complainant dishonestly. She want to hide the actual disease syringomalia.  It is submitted that along with reply the O.P. has filed the affidavit of Dr. Nitin Kotwal, Senior and experienced Anesthetic who has given the anesthesia at L-3-L-4 level.  He has also filed literature of Medical Science in support of his contentions.

              The O. P. has also filed certificate of Dr. Patnaik, Neuro Surgeon HOD Neuro Surgery, Govt. Medical College, Nagpur (Doc. No. 3) in which he has stated “Neuropathy Secondary to intera spinal analgesia” is only probability or possibility, which even if 100% confirmed is a complication of a procedure and does not amount to negligence on any doctors part during patients treatment.  It is submitted that complainant has filed (Document No. 9) of Dr. Patnaik of Green City Multi Speciality Hospital and in view of our document no. 3 of the same doctor this document no. 8 & 9 filed by complainant carries no value at all.

              It is submitted that O. P. has also filed document no. 5 of Central India Institute of Medical Sciences (CIIMS) dt. 17.03.2012 in which last line it is clearly stated “Syrinx formation after Spinal Anesthesia is Rare but known complication of Spinal Anesthesia which does not amount to negligence. 

              The O. P. has filed document no. 6 MRI report of complainant which complainant had suppressed and not filed on record intentionally.  It shows that she was suffering from Syrinx/Syringomalia.

              It is submitted that there is no deficiency in service on the part of this opposite party.  Following facts will clarify that there is no fault on the part of this opposite party.

(1)          Anesthesia given by duly qualified senior anesthesist.

(2)          Patient was having Chronic Long standing backache with radiculopathy to right lower limb.

(3)          Good post operative recovery without any neurological symptoms i.e. No bladder or bowel involvement.  No weakness or paraesthesia in the limb.

(4)          Patient went home walking on her own feet.

              Above facts clearly indicating that neurological sequele has not occurred because of negligent administration of anesthesia by spinal needle trauma as alleged by the complainant.

              It is submitted this Honorable Forum was pleased to call the report of Dean, Indira Gandhi Medical College, Nagpur.  It is submitted that it appears from the report sent by Indira Gandhi Medical College, Nagpur that a committee of 4 members consisting of 4 eminent doctors i.e. Medical Superintendent, Associate Professor of Surgery, Head of Department of Ortho and Head of Department of Anesthesia was framed and this committee after verification of all the documents have submitted their reasoned detailed report to Reader Indira Gandhi Medical College, Nagpur and who has submitted the said report before this Honorable Forum.

              Finally it has been concluded in the said report that there is no negligence on the part of surgeon or Anesthetic. 

              The opposite party has filed all the concerned documents since the stage of admission till discharge which prima facie show that there is no any negligence on the part of opposite party on the contrary she has been given best treatment which is prescribed by Medical Science.

              It is humbly and respectfully submitted that above facts more particularly the report submitted by Dean, Indira Gandhi Medical College, Nagpur requires to be considered.  It seems to be intentional and instigated harassment of O. P. as case has been filed almost 2 years after the surgery completely forgetting that O.P. has saved the life of complainant by performing successful emergency life saving surgery. 

              It is submitted that the complaint itself is not maintainable.  It is false, bogus and baseless.  Hence the complaint filed by the complainant is dismissed with costs and compensatory costs. 

13.                   The complaint filed by the complainant and reply along with document filed on record & argument advanced by both parties the following points are framed for the case at my hand.

REASONING & FINDINGS

14.                   The complainant was referred by Dr. Shukla Nursing Home, Balaghat (Chattisgadh State) to Jain Nursing Home for the complaint of pain in stomach.  The complainant who is nurse in Primary Health Centre approached to O. P. No. 2 Dr. Jain at Jain Nursing Home.  The came to Dr. Jain’s B. J. Hospital, Gondia i.e. O. P. No. 1 on dt. 18.03.2010.

15.                   After examination of reports Dr. Jain (O. P. No. 2) adviced immediate surgery.  As per discharge card filed on record the complainant was checked upon 18.03.2010 and admitted in hospital on 19.03.2010, operated by O. P. No. 2 on 20.03.2010 for Laparoscopically and her tubo ovarian mass removed, the anesthesia was administered by Dr. Nitin Kotwal.  The complainant was admitted for another 3 days post operatively in the ward up to 23.03.2010.  She was discharged on 23.03.2010 and advised to follow up visit on 27.03.2010.  On 27.03.2010 she again came to O.P. No. 2 and her wound was healthy & abdomen was normal.  She was complaining of pain in right lower limb and back for which she was referred to orthopedic surgeon Dr. Khapre.  Dr. Khapre had seen her on 02.04.2010 and advised her for MRI as he was suspecting because her back pain related to spinal cord.  Thereafter on 27.03.2010 the complainant had never turned up to O. P. No. 2 for follow up treatment.

              The O. P. No. 2 in written statement admitted that the complainant is unmarried & serving as a nurse in P.H.C. Centre.

              As per clinical history the surgery was performed by O. P. No. 2 for Rt. complex ovarian mass by administering spinal anesthesia under all aseptic precautions at L3 – L4 space with spinal needle No. 27 (B.D.) after achieving clear c.s.f. tap in single attempt.  The patient had no shooting or stabbing pain while administering sterile Bupi Vacaine intrathecally,  as per version of O.P. No. 2 and anesthetist in their answers and affidavit filed for the interrogatories filed counsel for complainant on record.

              The complainant after operation was examined by Dr. Patnaik, H.O.D. & NEURO Surgeon at Greencity Multispeciality Hospital & Critical Care Center, IUC, NICU & PICU centre at Dhantoli, Nagpur for severe back pain.  The Dr. has opined on 07.04.2010 that, “? Neuropathy secondary to infraspinal analgesia”.  significant abnormality to detected, absent knee jerk.  On the other hand Dr. Patnaik has issued another new certificate to opposite parties without mentioning the name to whom it was address and without dated mentioning that “Mrs. Tarranum Ali was examined by him on 07.04.2010 at Green City Hospital, Nagpur, as per his clinical note the impression written as “? Neuropathy Secondary to intraspinal analgesia” is only probability or possibility which even if 100% confirmed is complication of a procedure and does not amount to negligence on any doctor’s part.  The secondary opinion through undated certificate issued by Dr. Patnaik might have been issued for maintaining good professional relations among doctors or any pressurize tacties from O. P.

              The Forum on dated 21.07.2012 in a letter ref. no. 54/12 issued a letter & sought opinion from Indira Gandhi Govt. Medical Hospital, Nagpur.  The Govt. Medical College constituted enquiry committee under the Chairmanship of Dr. Sou. Manjrekar, Professor and H.O.D. of anesthesia submitted its report on 20.07.2012.

              The clause No. 5 of enquiry report reads as “रूग्‍णास ऑपरेशनपूर्वी पाठदुखीचा त्रास होता असे भूलतज्ञ डॉ. नितीन कोतवाल यांच्‍या नोंदीवरून लक्षात येते.  परंतु हे माहीत असतांना देखील त्‍यांनी रूग्‍णास ‘स्‍पायनल अनेस्‍थेशिया’ हा भूल देण्‍यासाठी पर्याय कां निवडलरा हे समजून घेणे गरजेचे आहे.  खरे बघितल्‍यास लॅप्रोस्‍कोपिक सर्जरीसाठी ‘जनरल अनेस्‍थेशिया’ देणे सर्वसंमत व रूग्‍णाच्‍या सुरक्षिततेच्‍या दृष्टिकोनातून अधिक हितावह आहे.  या रूग्‍णास पाठदुखीचा त्रास असतांना देखील डॉ. कोतवाल यांनी रूग्‍णास स्‍पायनल अनेस्‍थेशिया दिला यामागे त्‍यांचा फक्‍त व्‍यावसायिक हेतू होता असे म्‍हणणे गैर ठरू नये.”   

                  As per Clause No. 5 of enquiry report the safest method and for the benefit of patient the method of administration of anesthesia is general anesthesia.  When surgeon and anesthetist had knowledge of severe pain in the back of patient. So general anesthesia is the safest method & it should have adopted.  This amount to gross negligence on the part of doctors.  As per clinical notes of O. P. No. 2 and affidavit filed by the anesthetist and past history of patient the patient is suffering from severe back problem.  The failure of anesthetist and surgeon not of ordinary but such a high level which they have experience, expertise and skill which clearly amounts in our view to serious negligence in making surgery and adoption of technique.  Patients approach renowned and highly qualified skilled and experienced medical professionals at comparatively much higher expenses with the trust that they are in the best hands and with hope of getting correct and proper diagnosis and treatment of their medical problems.  The complainant must have also approached the surgeon at the hospital with such trust and hope. But she was lied in the present case. Hence she is consumer who availed the services on payment & fees.

              In Judgement of Hon’ble Supreme Court in case of Martin F. D’souza  versus Mohd. Ishfaq  I (2009) CPJ (SC) & Three Judge bench judgement of Supreme Court in Jakob Mathew versus State of Punjab (2005) 6 SCC 1 & in English Court in case of Bolam versus Friern Hospital Management Committee (1957) 1 WLR 582 held that, “A doctor should not merely go by the version of patient regarding his symptoms but should also make his own analysis including tests and investigations where necessary”. 

              “The practitioner must bring to his task a reasonable degree & skill & knowledge and must exercise a reasonable degree & care.  Neither the very highest nor a very low degree & care and competence is what law requires”.

              “The standard of care has to judged in the light if knowledge available at the time of incident and not at the date of trial.  Also where the charge of negligence is of failure to use some particular equipment the charge would fail if the equipment was not generally available at that point of time”.

              On scrutiny of leading medical cases both in India and United Kingdom some basic principles emerged in dealing with medical negligence.

(i)           Negligence is “breach of 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)          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 light of particular circumstances of each case is what the law requires. 

              This is gross negligence on the part of the senior anesthetist Dr. Nitin Kotwal and O. P. No. 2 who failed to take precaution for advising more necessary clinical test such as M.R.I. or other tests when the patient was examined on 18.03.2010 and operated on 20.03.2010.  The doctors had sufficient period of time for further investigation and tests to be performed for the patient like complainant.  The complainant is not ordinary illiterate patient.  She might possess some more knowledge other than general patients because she has served as a nurse at Govt. P.H.C. center, Balaghat. 

              The O. P. No. 2 and Anesthetist did not supported their contentions or defenses by independent witnesses on affidavit or the opinion of doctors were not supported with affidavit on oath, therefore the contention and defense of O. P. and anesthetist Dr. Nitin Kotwal is not acceptable to the present fact and circumstances of this case.  The opinion given at Enquiry Report of Indira Gandhi Govt. Medical College, Nagpur and opinion given by Dr. Patnaik, H.O.D. & Neurosurgeon at Green City Multispeciality Hospital, Nagpur are in support of contention of complainant. hence the O.P. No. 2 and anesthetist Dr. Nitin Kotwal are liable for medical negligence caused to complainant and liable to pay compensation of Rs. 1 lac each to the complainant who is after surgery unable to lead a normal life as previous she could lead. 

              The decision to administer spinal anesthesia instead of general anesthesia.  The type of surgical procedure envisaged and conducted was questionable especially having regard to the complications which develop after administering of spinal anesthesia.

              Dr. Nitin Kotwal is not party to the complaint but he has given all opportunity to defend the case.  He has submitted his affidavit and answer to interrogatives.   Therefore compensation can be imposed against him.  The surgery of complainant was performed in the hospital by O. P. No. 2.  The O. P. No. 2 fails to perform necessary further investigation for the critical patient like complainant which resulted serious impact of patient after surgery that she could not able to lead a normal life which she was able to lead before operation, hence for deficiency in treatment & vicarious liability on the part of O. P. No. 1 where the surgery took place for that O. P. No. 2 is liable to pay compensation of Rs. 1 lac to complainant for deficiency on his part of surgery & vicariously liable for O. P. No. 1.

              The opinion and contention of Dr. Khapre an orthopedic surgeon can’t be accepted because he did not examine as a witness to support his contention on affidavit in this case.  Similarly no expert opinion on affidavit or authoritative view from any medical treaties has been produced from the side of O. P. and anesthetist to show that in the given facts and circumstances only spinal anesthesia should have been administered.  Therefore the contention and defense of O. P. and anesthetist is not acceptable.  The case law submitted by O. P. not supported with the case.   

              Under Consumer Protection Act, 1986 u/s 14 the compensation defined by Supreme Court in Gaziabad Development Authority versus Balbir Singh (2004) 5 SCC 65 – The word compensation has wide connotation, according to dictionary meaning “Compensating for being compensated, thing given as recompense.  In legal sense it may constitute actual loss as expected loss and may extend to physical, mental as even emotional suffering insult, injury or loss.  The Commission or the Forum’s in the act is thus entitled to award not only value of the goods or services but able to compensate a consumer for injustice suffered by him”.

              It is settled law for medical negligence loss of present and future earnings, future cost of medical and nursing care.  To deny legitimate claim would amount to substantial injustice.  There is no difference in legal theory between the plaintiffs injured through medical negligence and plaintiff injured in industrial or motor accident.

              Under Civil and Consumer law compensation paid for medical negligence is neither punishment nor reward.  The principle on which damages for medical negligence are assessed is that they are to be regarded as compensation for the injury sustained or death and not as punishment for the wrong inflicted.

              Therefore looking to the age and disability for the future life the following compensation seems to be just and reasonable in opinion of Forum. 

              Hence following order is passed.   

-: ORDER :-

1.            The complaint is partly allowed.

2.            The O.P. No. 2 and anesthetist Dr. Nitin Kotwal is liable to pay Rs. 1 lac each ( total Rs. 2 lacs) to the complainant towards compensation for medical negligence within 30 days from the date of judgement.  Otherwise liable to pay interest @ 9% p.a. from the date of filing of petition i.e 20/02/2012 till realization of amount

3.            The O.P. No. 2 and anesthetist Dr. Nitin Kotwal is liable to pay Rs. 5,000/- each towards cost of litigation to the complainant.