Appeared at the time of arguments through Video Conferencing      

Pronounced on: 5^th October 2020

ORDER

PER DR. S. M. KANTIKAR, MEMBER

1.       The present Revision Petition has been filed against the majority Order dated 05.11.2008 in Appeal No. 159/1998 passed by the U.P. State Consumer Disputes Redresssal Commission, Lucknow, (hereinafter referred to as the State Commission), wherein the State Commission had allowed the appeal of the Respondent and set aside the Order of the District Consumer Disputes Redressal Forum, Varanasi (hereinafter referred to as the District Forum) passed in Complaint Case No. 147/95.

2.       Brief facts of the case are that in June, 1994, the Complainant (hereinafter referred to as the patient) visited SS Hospital at Institute of Medical Sciences, BHU, Varanasi (hereinafter referred to as the Opposite Party No. 1) for pain in his left knee. Earlier on 02.06.1992 and 22.06.1994, X-rays of left knee were done, which showed some loose body inside the knee joint. Dr. S. C. Goel, the Professor of Orthopaedics (hereinafter referred to as the Opposite Party No. 2) examined the patient and suggested Arthroscopic removal of the loose bodies. The Complainant alleged that instead of Arthroscopy, the Opposite Party No. 2 performed open operation (Arthrotomy) on 28.07.1994. Even after the operation, the patient did not show any improvement. On 17.09.1994, another X-ray of left knee was taken which revealed the loose bodies were still present. Thereafter, the patient consulted Dr. A. K. Singh at Safdarjung Hospital, New Delhi and finally underwent    Arthroscopy procedure at Mumbai by the hands of Dr. Anant Joshi on 29.11.1994. He continued follow up advice of Dr. Joshi till 04.01.1995 and gradually his left knee started functioning normally.

3.       Being aggrieved by the alleged careless and negligent treatment of the Opposite Parties, the Complainant filed a Consumer Complaint (CC No. 147 of 1995) before the District Forum, Varanasi.

4.       The Complaint was contested by the Opposite Parties. In their reply, they submitted that no fee was charged from the patient but the patient chose private ward with his own consent. No assurance of complete cure was given beforehand. It was advised by the Opposite Party No. 2 that if the Arthroscopy was not successful, surgical operation would have to be done. After the operation only one or two loose bodies remained in the joint space. The patient was at fault in not doing physical exercise as advised.

5.       The District Forum, after hearing the parties and appraisal of evidence, allowed the Complaint vide Order dated 22.12.1997 and ordered the Opposite Parties to pay a compensation of Rs. 2,30,000/- jointly and severally to the Complainant, within three months.

6.       Being aggrieved by the Order passed by the District Forum, the Opposite Parties filed First Appeal before the State Commission, Lucknow. The State Commission passed two Orders on 05.11.2008. The majority Order allowed the Appeal and set aside the Order of the District Forum, whereas the minority Order passed by the Presiding Member upheld negligence and directed the Opposite Parties to pay Rs. 4,37,965/- to the Complainant along with interest @ 9% per annum.

7.       Being aggrieved by the majority Order of the State Commission, the Complainant filed the instant Revision Petition.

8.       We have heard the arguments of the learned Counsel for both the sides and perused the entire material on record inter alia the Original Record from the District Forum.

9.       The crux of the matter is whether the treating doctor was wrong, who performed Arthroscopy (laparoscopy) and Arthrotomy (open operation) for removal of loose bodies in the left knee joint of the patient. We gave our thoughtful consideration, it is an admitted fact that Dr. S. C. Goel, advised for Arthroscopic removal of loose bodies in the knee joint, however during procedure, he preferred open operation i.e. Arthrotomy. As per the operative notes, it was the case of degenerative changes in the left knee joint and the four loose bodies were seen during Arthroscopy and their sizes were 1.5, 1.25, 1 & 1 cm.  A large body of more than 5 mm size is difficult to be removed by Arthroscopy. Therefore, the Opposite Party No. 2 preferred open surgery. Moreover, admittedly, the patient before operation was informed that if the Arthroscopy was not successful, open surgery would be done.  We find the Consent Form consists of all the ingredients of a valid informed Consent.  Thus, in our considered view, there was no negligence during the treatment of the patient at the Opposite Party No. 1 Hospital.

10.     It is pertinent to note that Dr. A. K. Singh from Safdarjung Hospital and Dr. Anant Joshi from Mumbai have not mentioned or commented about the negligence during the treatment of the patient at BHU. At Safdarjung Hospital, the patient was advised for quadriceps-plasty, which he did not opt for. In Mumbai, Dr. Anant Joshi diagnosed it as a case of Post-Operative Traumatic stiffness in knee joint and it was due to adhesions. Dr. Anant Joshi    arthroscopically removed adhesions in suprapatellar region; it was not for removal of any loose bodies.

11.     As per “Campbell’s Operative Orthopaedics” a standard text book the stiffness in the knee joint occurs due to adhesions, but the joint mice usually cause constant locking of joint and osteoarthritis (roughening of joint). About  the loose bodies in joint it is stated  as:

          Loose bodies, also known as joint mice are mostly associated with the osteochondral lesion, osteochondritis dissecans, joint degeneration, and synovial chondromatosis. Clinically, pain and intermittent locking, with or without swelling and effusion of the knee, are often found in patients with loose bodies, which bring great psychological pressure to them. Furthermore, loose bodies moving freely in the joint are more likely to cause the disorder of intra-articular structure, result in severe damage to the articular cartilage, and thus aggravate the development of early osteoarthritis (OA). 

Arthroscopy is considered to be the standard technique for loose body removal in the knee.  Despite remarkable advances in arthroscopic technology over the past decades, loose bodies in several sections of the knee joint remain difficult to remove. Regarding popliteus hiatus, it represents an oblique anterolateral directed tunnel, bordered by the superior and inferior fascicles of the lateral meniscus.  Popliteus hiatus appears as a potential space, pushed closed by the adjacent lateral capsule and ligaments.  Due to the specificity of the anatomical structure, it might be very hard loose bodies in several locations are difficult to remove. The popliteus hiatus is one of those locations. Multiple loose bodies are likely to locate at the popliteus hiatus due to its anatomical factors. Thus, it is very necessary to handle them at the same time. Few studies have introduced a specific surgical procedure to remove the loose bodies in the popliteus hiatus previously. 

Due to the specificity of the anatomical structure, it might be very hard not only to clearly expose the structures of the popliteus hiatus through conventional arthroscopic technique   but also to remove the loose bodies located in it. As for the posterior compartment of the knee joint, the posterior aspect of the proximal tibia and blind spots in knee arthroscopy are difficult to access and manipulate. Furthermore, the popliteal artery lies in close proximity to the posterior compartment of the knee, and the risk of its damage remains high. Besides, dynamic procedure and structural variation of neurovascular anatomy may increase the risk of an iatrogenic injury. 

Few bodies seen through arthroscopy can be easily removed with forceps but oily round bodies slips into corners and difficult to remove by forceps. Therefore, open procedure (arthrotomy) is a necessary.

 12.    We would like to rely upon the decision of Hon’ble Supreme Court in Jacob Mathew’s case, (2005) SSC (Crl) 1369, which observed that:

“When  a  patient  dies  or  suffers  some  mishap,  there  is  a  tendency  to  blame  the  doctor  for  this.   Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every  case  in  his  professional  career but surely  he  cannot be  penalized for  losing  a  case  provided  he appeared in it and made his submissions.”

 Just because a person suffers a bad outcome from medical treatment, does not mean that they have an automatic right to sue for compensation. A medical error is only considered "negligent" if the healthcare practitioner has failed to take "reasonable care". 

13.     In the instant case, it is apparent from the Medical Record that the four bodies were more than 5mm size and could not be removed by Arthroscopy. It was the misconception of the patient that despite the advice for Arthroscopy, the Opposite Party No. 2 performed open surgery.

14.     Based on the foregoing discussion, we agree with the Order (majority) passed by the State Commission.  We find it to be well-appraised and well-reasoned.  Within the meaning and scope of section 21(b), we find no grave error in appreciating the evidence by the State Commission, as may cause to require re-appreciation of the evidence in revision. And, on the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice. 

The Revision Petition, sans merit, is dismissed. Parties to bear their own costs.