(Pronounced on   7^th  day of April, 2015)

Mr. Manohar Chilbule.  President, for the Forum .

                    Present complaint is filed by the complainants  u/s 12 of the Consumer Protection Act, 1986,  claiming compensation for the Medical Negligence by the O.P.s while performing brain tumor operation  of the original complainant Sanjay Ramraoji Anturkar.

1.                 The material facts, as emerging from the complaint, necessary for disposal of the complaint  are as follows:-

                    That, the complainant  Late Sanjay  Ramraoji Anturkar, aged about 26 years who was running medical store in the name and style of M/s LAXMI MEDICAL STORES at Nagpur  was admitted  on 13.12.1998 in CIIMS Hospital  run by O.P.No. 1 CENTRAL INDIA INSTITUTE OF MEDICAL SCIENCES Nagpur for treatment.  After initial examination by Dr. Deshpande, the complainant was referred to the O.P.No. 2 Dr. Shailesh M. Kelkar (Neurosurgeon), who  examined the complainant  and after various tests  opined that complainant had developed tumor in brain (parietal Glioblastoma Multiforma) resulting into seizures and  on the next day  advised that exept operation there was no other remedy to get rid of disease  permanently.  He assured that  after  operation paroxysm would be cured permanently in all respects and seizures etc. would be arrested permanently giving a quite normal life to the complainant. Therefore, the complainant and his family members agreed for operation.  The estimated expences for the opreration and other concerned treatment were quoted by O.P.No. 2 to be about Rs.50,000/-.

2.       The complainant was operated on 15.12.1998 by O.P.No.2 in the hospital managed & controlled by the    O.P.No. 1 for which complainant incurred expenses of more than Rs.60,000/- over the operation and post operation treatment.

3.       When  the complainant gained sensus, he was unable to see. He also experienced paralysis to left side of his body. O.P.No. 2  satisfied the complainant and his family members that due to recent operation of brain, the complainant was unable to see and gradually he would be able to see as ever before and said that operation was successful.  However till his discharge on 25.12.1998  the complainant did not gain eye vision as mentioned in discharge summary.

4.       At the time of discharge, the O.P.No.2 advised the complainant to visit  from time to time  for  further advise and treatment. Accordingly the complainant was being taken to the hospital by his family members and followed all the instructions of the O.P.  He complained regarding eye sight in every visit and  O.P.No. 2  went on assuring that vision would be restored. The complainant was adviced for Radio Therapy, which was received by him in R.S.Tukdoji Cancer Hospital, Nagpur.

5.       In addition to the loss of eye sight after the operation, the complainant also received attacks of seizures as before operation. The loss of eye vision snatched every happiness, and he has to depend on family members even for very petty personal matters. Even after the  lapse of a considerable period with no signs of any improvements,  the complainant and his family members got the eyesight checked up by the opthomalogist  who gave negative opinon.

6.       It also came to be learnt that while operation was performed by the O.P.No.2,  the nerves relating to vision might have been damaged or even cutdown negligently resulting in loss of eye sight and the complainant would never be able to see.  The complainant and his family members rushed to the hospital & O.P..No.2, but he repeated the same assurance, which have never came to be true. The negative opinion of the medical experts strengthen the suspicion and converted it to a firm belief that gross negligence and ignorance of  the opponents while performing the  operation resulted  into loss of eye vision permanently. The complaiannt has also come to know that loss of eye vision has no concern with the operation of brain tumor and the loss of eye sight during operation can be result of only a defective and negligent operation.

7.       Before performance of operation as above, the complainant had no problem of any sort except occasional seizures as stated earlier. Right from the performance of the operation he lost eye sight which was  experienced  by him as soon as he got conscious after the  operation  and   the fact of loss of eye sight has been confirmed  in discharge summary of the hospital leaving there no room for departing from the fact that eye vision is lost during operation only. Due to deficiency in services provided by the opponents in the form of a defective and negligent operation, the physical disorder for which  the complainant was treated is still continued, but the complainant has even lost most precious god gift i.e. eye sight permanently.

8.       The parents of the complainant were very happy before performance of operation having dreams of speedy recovery of their son with the hope that after recovery their beloved son would prove to be a support for them. However, the dreams of the complainant and his family members have been shattered, their hopes smashed. The complainant, instead of being support for his parents, he has become dependant upon them for everything. The complainant issued notice dtd.24.06.1999 to the opponents calling upon them to pay compensation of Rs.19,00,000/-. The opponents did not comply with the notice, but sent false reply dated 10.07.1999  and illegally tried to escape from their liability on false and baseless grounds.

9.       The complainant was running Laxmi Medical Stores, since last 7 years and was earning net monthly income Rs.5,000/- per month and from that income was maintaining his family. Besides, experience of every difficulty, inconvenience etc. due to loss of eye sight, the complainant has been incapacitated from earning permanently. Irrespective of the facts of loss of earning capacity, the complainant is entitled to the compensation  claimed by the complainant as the complainant and his family members have suffered unbearable extreme mental torture and agony which will even continue for life long.

10.     Operation was performed by O.P.No. 2 while working  in the hospital managed, controlled and supervised by the O.P.No.1. In their written statement O.P.No. 1 and 2 disclosed that they have obtained Professional Indemnity Policy of Doctors and Medical Practitioners from the O.P.No. 3  National Insurance Company for the period 19.09.1997 to 18.09.1998 (Policy No. 27043/46/34/229/97) and subsequently for the period 19.09.1998 to 18.09.1999 (Policy No. 27043/98/870073) and the insurance company is liable to compensate any loss or damages caused to the patients during the course of treatment by the O.P.     Therefore O.P. No. 1 to 3  are jointly and severally liable to compensate the complainant.  

11.     The complainant claimed the compensation as under –

The complainant placed on record following documents in support of his claim.

1) Leaving Certificate

2) Registration Certificate of Establishment

3) Examination Report

4) Bills of Hospital

5) Bills cum receipts

6)  Bill at discharge

7) Receipts of Hospital

8) Medicine Refund Vouchers

9) Discharge Summary

10) Medical Prescriptions (Follow-up)

11) Receipts issued by Cancer relief Society

12) Memo of Treatments issued by Cancer relief Society

13) Bills of Medicines

14) Notice issued by complainant

15) Reply to the Notice

12.          In opposition to the complaint, a common Written Version is filed on behalf O.P. No. 1 and 2.  They have raised  preliminary objection to the maintainability of the complaint  stating that  the Hospital run  by O.P.No. 1 was  insured with National Insurance Company under the Professional Indemnity Policy of Doctors and Medical Practitioners for the period 19.09.1997 to 18.09.1998 vide Policy No. 27043/46/34/229/97 and subsequently for the period 19.09.1998 to 18.09.1999 vide Policy No. 27043/98/870073. Under the policy the insurance company  is liable to indimify the hospital from all the errors and omissions. As such the Insurance company  is a necessay party to the complaint. In the absence of Insurance Company which is  a necessary party, complaint is liable to be dismissed.

13.     They have further submitted that the Medical negligence of opponents is alleged by the complainant. To establish the existance of medical negligence detailed evidence is required to be recorded, which can not be done in summary proceeding under Consumer Protection Act. As the matter in dispute involves complicated question of facts, which need a detailed inquiry,  the present complaint is not maintainable before the Consumer Forum and hence liable to be dismissed .

14.     They have further submitted that the complainant, who is hereinafter referred as patient for convenience was admitted to the Hospital of the opponents on 13.12.1998. The relatives of the patient informed the opponents that, 5-6 days prior to admission, complainant was having headache, vomiting, altered consciousness, fever for which he was brought to hospital. The patient was a  diagnosed   case of Brain Tumour (Astrocytoma), which in common language is called as “Brain cancer”. The relatives further informed that patient has also undergone a Radiotherapy treatment. The patient did respond to therapy but he always used to have seizures since last four years.

15.     When  the patient was examined at the time of admission he was found to be irritable drowsy,  he was occasionally responding to simple commands, the patient was uncooperative for any subjective examinations and visual acuity in that patient was very difficult to access.  When  it was enquired with the relatives as to why they west time before admitting, it was revealed that the patient was in the same conditions, since last more than 15 days. It was further revealed that the patients intensity of seriousness has also increased since last 5 to 6 days prior to admission to the hospital of the opponents, patient was undergoing a treatment of Malarial Fever since last 5-6 days.  The relatives of the patient were negligent of taking any proper and immediate action. It is only when the condition of the patient became worst they decided to shift him to a hospital. They have submitted that as the patient was uncooperative and was only occasionally responding to verbal commands, in such a situation it is very difficult to conduct a visual acuity test and therefore it cannot t be  done.

16.     After admission of patient on 13.12.1998, he was checked by O.P.No. 2 Dr. Shailesh Kelkar and found that patient was not responding and was uncooperative for subjective examination. His pupils showed unequal size and were sluggishly reacting to light indicating involvement of visual apparatus either afferent or efferent. After fundus examination it was found that patient had papilleodema which suggest raised intra cranial pressure. On the same day C.T. Scan (brain) done  which showed recurrence of mass lesion in left parieto occipital region involing visual radiation whith midline shift with compression over brain stem. The tumor had crossed the III stage of cancer and such kind of complications generally happen suddenly to these kind of patients. The tumer has expanded so rapidly that it started compressing the brain and related structures by putting pressure on brain which controls consciousness, respiration and cardiac activitiy of  the body. As compared to previous reports dated 08.06.1998, the mass of the tumour was moderately increased in size, which caused mid-line shift of about 1.61 cm. towards right side which has resulted to significant increase in compression over brain stem is a serious matter as it controls breathing, consciousness and other vital activity of body.  Looking to the  emergent situation the opponent No. 2 on  the very day  suggested that patient should be operated to remove the tumour as much as possible to save from further complications  and any delay to the said operation will cause and lead to further complications. Such kind of treatment on Tumours are only palliative procedures and not curative. It can only extend the life and not cure him, who was in III /last stage of cancer. All pros and cons of the procedure were explained to the relatives with prognosis associated with cancer in the language they understood. The decision and procedure opted by the Medical experts dealing with the patient was to save life of the patient only in emergency.  The relatives of the patient were asked to take immediate decision of whether to undergo a operation on patient. The hospital authorities inspite of being a holiday were ready and willing to perform surgery on 13.12.1998 also. But, where decisions have to be taken in minutes or few hours, they took time of two days and gave it  on 15.12.1998.  Such delay on the part of relatives of the patient in taking decision gave ample time for further Neurological insult and it further lead to more complications which definitely affected the functional out come of the patient.

     After the consent was given on 15.12.1998, the patient was operated upon under general Anaesthesia with left sided parieto occipital craniotomy and grossly total excision was achieved. Dura was opened, Tumour was approached through parietal gyri and near total excision of the greyish vascular tumour was done.  Thereafter Dura was closed and bone flap was replaced back. Scalp was sutured in layers after putting drain. The operation was performed successfully and in the surgery, the tumour was removed. This fact can very well be seen from the operation notes dated 15.12.1998 written by the surgeon as to what procedure  and method was used. The copy of treatment and order sheet of patient is annexed to the reply as Annexure R 3 .

     When patient gained senses he complained about his inability to see.When the patient was admitted, he was not in his senses and to access the vision could not be  done because for that consciousness is very important. The relatives were assured that vision may improve, but considering the pre operative clinical signs, of the pupils being sluggishly reacting it was difficult to assume about the vision power being coming back, but the opponents did not guarantee any positive outcome. The delay of two days in conducting operation may have further damaged the optic nerves, which has resulted into a loss of vision power.  The brain tumour has affected a major part of the brain which is also included the vision power. They have denied that patient had also suffered a paralytic attack.

     The tumour, which was removed from the brain, was sent for a pathology test. The histopathology report of the tumour was received on 21.12.1998 and it was clearly mentioned that, the tumour was detected as glioblastoma multiforme  which is called as  highest grade, i.e.grade IV of malignant tumour(Cancer). The brain cancer has reached its last stage and the patient was in a very critical condition. Prognosticate the life span expected for a patient suffering in such a condition is at the most 9 months to one year on an average. With this report, in hand , prognosis was explained. It was quite clear that patient, has very limited life span. As the cancer pertained to brain, which is a vital organ, which controls the entire nervous system of body, complications of functions of body is bound to happen. On this ground, the expectation put forward by patient regarding his functional recovery in the patient stands very much against the law of nature given the scientific basis.

     On 22.12.1998 a repeat scan was performed, the report showed excision of tumour with reduction in mass effect. The patient was discharged on 25.12.1998 with clear clinical findings and impression typed underneath with the prognosis of the patient and treatment on discharge. Discharge summary is at Annexure R-3

After discharged, the patient was attended three times for follow up. Every time his visual acuity was accessed and prognosticated to relatives separately. The opinion as taken by the relatives of patient of other medical professional and expert regarding the visual status is no different than what has been stated by the opponents on the records. They have submitted  that the claim  of complainant’s that the loss of vision  was due to cut in nerve is totally false and baseless. The site of operation of patient’s head is far off from anatomical location of nerve for vision, hence it is only assumption without scientific proof  of the same. The loss of eye vision has no concern at all with the operation of brain tumour or defective and negligent operation, but it is because of lapse of crucial time to take decision for admission and surgery which led to development of such a complication. They have denied that any kind of assurance with regard to restoration of eye vision was given to the patient or his relative.

They have further submitted that on re-examination on 12.04.1999, during follow up, the patient gave history of one episode of seizure, even when he was on anticonvulsants. He was put on additional drugs to control seizures, the dosage of anticonvulsant drugs are always administered as per requirement of the patient starting from low doses and increasing until desired effect is achieved without producing any side effects. Their contention is that  it is false that  the patient had no problems of any sort except occasional seizures .

The O.Ps. stated that when the patient was brought to their hospital he was suffering from brain tumour i.e. “Brain Cancer”. He was suffering from seizures since last 3 to 4 years and had received radiotherapy, but denied that he had a considerable improvements after the radiotherapy as the disease by which the patient was suffering had drugs which can only restrain the further Pressure due to tumour edima, and it does not cure the patient permanently. The medical sciences, only have a pallative mode of treatment and not accurate in such kind of disease. The negligent and uncareful attitue of the relatives of the patient has led to the complications, and to overcome the said negligence they are shifting their liability upon the O.Ps.

They have denied that the patient was running his  M/s Laxmi Medical Stores and earning Rs.5,000/- per month, as to run a Medical shop one is required  to have a B. Pharm. Degree, which the patient had not. They have further submitted that there is no basis for the compensation claimed by the complainant. They have also stated the original complainant died after filing of the complaint and the complaint was abated. The present complainants are relatives of the deceased complainant and have no right to claim the compensation. With this the O.Ps. claimed for dismissal of the complaint.

17.     O.P. No. 3 is added as per order of the forum dtd.07.05.2012. It has  opposed the complaint by filing written statement. The preliminary objection raised by O.P.No. 3 is that there is no privity of contract between the complainant and it and therefore complainant is not its  consumer and the complaint  is not tenable against it.  It has also submitted that the cause of action arose on 15.12.1998 as per the pleadings in the complaint, therefore, present complaint claiming relief against the O.P.No. 3 in the year 2012 is barred by limitation u/s 24A of the Consumers Protection Act 1986. No claim was made by the complainant against the O.P.No.3 at any time and there is no deficiency of any service on the part of O.P.No. 3 and no cause of action arose against the O.P.No. 3 for  impleading  in the present complaint.

     It has further submitted that the allegations of negligence are  made by the complainant against the O.P.No. 1 and  2  and O.P.No. 3 has no concern with the same. It is further submitted  by the O.P.No. 3 that it is relying upon the pleadings of the O.P.No. 1 and 2  which shows that there was no negligence while treating the complainant and they have not provided any deficient services. It has denied the claim of the complainant in toto and specificifically denied its joint and several liability alongwith O.P.No.1 & 2 to pay the compensation  as claimed by the complainant. It has admitted that “Professional indemnity Policy For Doctors and Medical Practioners” as stated in the W.S.of O.P.No. 1& 2 was issued by it in favour of M/S C.I.I.M.S. subject to the terms and conditions, limitations, exceptions, exclusions  for the period  19.09.1997 to 18.09.1998 and it was renewed for the period 19.09.1998 to 18.09.1999 as stated in W.S. of O.P.No. 1 and 2.  The grievance of the complainant  is regarding the treatment after getting the discharge from the hospital on 25.12.1999 i.e. after the expiry of the policy and there is no coverage granted by the O.P.No. 3 , therefore, the complaint against O.P.No. 3 is liable to be dismissed.

     It is further submitted that as per Policy clause 2(b) there shall be no liability hereunder for any claim made against the insured for act committed or alleged to have been committed prior to the Retroactive Date specified in the Schedule. As per condition No. 5(a) it was mandatory on the part of the insured to notify the company during the policy period in accordance with General Condition No.81 of any specific event or circumstance which the company accepts may give rise to a claim or claims for the subject of indemnity by the policy, then the acceptance of such notification means that the company will deal with such claim or claims as if they had first been made against the insured during the policy period. As at any point of time the O.P.No. 3 has not been informed as regards the claim lodged or events as conteded in the complaint, the insured is not at all entitle for any indemnity under the policy and no claim is tenable against the O.P.No.3. It has also submitted that there was breach of policy conditions No. 8.1,8.4,8.5 and therefore, insured is not entitled for any indemnity.  With this prayed for dismissal of the complaint against O.P.No. 3.

18.              On consideration of the pleadings and evidence adduced by the parties following points arose for determination. The fourm has recorded its findings thereon as under for the reasons given herefter.

Points                                                                             Findings

1. Whether complaint is maintainable against the O.P.No.3?      Yes.

2. Whether  complaint  is within limitation?                                      Yes.

3. Whether O.P.No. 1 & 2  acted negligently in treating

   the original complainant Sanjay Anturkar,

   and thereby provided deficient service?                                    No.

4. Whether complainants are entitled for compensation ?

    If yes, what is quantum?                                                           No.

5.  What order?                                                           As per  final order.

                           REASONS

19.              As  to Point No. 1 :-  Admittedly the O.P.No. 1 has purchased the Professional Imdemnity Policy For Doctors and Medicals Practitioners  from the O.P.No.3 National Insurance Co. for the period  19.09.1997 to 18.09.1998 and it was renewed for the period 19.09.1998 to 18.09.1999. The complainant was admitted in the hospital of O.P..No. 1 on 13.12.1998, operated for brain tumor(Cancer) on 15.12.1998 and was discharged on 25.12.1998 . It is alleged that the complainant suffered loss of vision on account of negligence of O.P.No. 1  and 2  during the  the policy period. As per terms and conditions of the policy the O.P.No. 3  undertook to reimberse the loss caused to the O.P.No. 1.   Though there is no privity of contract between the complainant and O.P.No. 3, by virtue of Insure Policy the complainant becomes the beneficiary to receive the compensation  from  O.P.No.3, if  he succeed in proving his case against the O.P.No. 1 and 2. Therefore, being the beneficiary through O.P.No.1and 2, the complainant is a consumer of the O.P.No. 3 and the  complaint is maintainable against O.P.No.3.

20.              As  to Point No. 2:-  The complaint  is filed within limitation against the original O.P.No. 1 and 2 before the State Commission, at Mumbai.  After filing the complaint  the original complainant Sanjay Anturkar died  on 4.12.1999 and his heirs were brought on record. O.P.No. 1 and 2 filed their written statement on 31.1.2001 and disclosed that they have purchased the  Professional Imdemnity Policy For Doctors and Medicals Practitioners  from the O.P.No.3 National Insurance Co.  for the period  19.09.1997 to 18.09.1998 and it was renewed for the period 19.09.1998 to 18.09.1999.   Therefore, O.P.No. 3 is a necessary party to the present complainant. The father and legal heir of the deceased complainant Ramrao who was looking after the proccceding also died on 31.5.2003. Then the case was transferred to the District consumer Forum in the year 2008, as the pecuniary jurisdiction was increased. The legal heirs of the complainants then  moved the application  on 9.04.2012 for impleading the O.P.No.3 as party to the complainant. Considering the facts and circumstances the forum  allowed the application and the O.P.No.3 National Insurance Co. Ltd. was added as party to the complaint. Such amendment relates back to the date of complaint as the O.P.No. 3 was necessary/ proper party,  but the complainant was not aware about the poicy purchased by O.P.No.1 from the O.P.No.3 on the date of filing complaint and it was subsequently disclosed by the O.P.No.1. As the amendment relates back to the date of complaint i.e. 3.12.1999, the complaint against the O.P.No.3 is well within limitation. Hence , the finding of point No. 2 is recorded in the affairmative.

21.              As  to Point No. 3 :-  In the present case, it is admitted fact that the original complainant   Late Sanjay  Ramraoji Anturkar, aged about 26 years was  was admitted in CIIMS Hospital  run by O.P.No. 1 CENTRAL INDIA INSTITUTE OF MEDICAL SCIENCES Nagpur on 13.12.1998. He was examined by Consultant Dr. S.M.Kelkar, MS,MS,Mch, Neurosurgeon(O.P.No.2). At the time of admission the history of the patient was narratted by the relatives of the complainant whch is  recorded in Discharge Summary as under-

BRIEF HISTORY- COMPLAINTS AND DURATION/CLINICAL EXAMINATION -

k/c of Astrocytoma since 4 yrs and had taken radiotherapy for – 1 mth

c/o altered consciousness )

   vomitings 2-3 times ,  )  since 3 days

   headache, fever           )

Patient had no problems after receiving adiotherapy which was

4 yrs back for 1 month.

He had episodes of generalized seizures during radiotherapy and

was started Dilantin.

15 days back s/o fever with rigors and was diagnosed as Malarial fever

and treated for the same.

No h/o DM/HT/IH

O/E : conscious, irritable drowsy, responding to simple commands.

Afeb, pulse

80/min BP 120/80

RS,CVS,P/A-NDA cRANIAL nerves NBT Reflexes- N -

Power Gr V in all 4 limbs.

Along with other tests C.T.Scan was done. The findings in C.T.Scan as   recorded in Discharge summary are as under -

C.T. SCAN –

(13/12) Compared to previous on 08/06/98 the mass lesion in (lt) temporal parietal region has  moderately increased in size causing midline shift of about 1.61cm towards (R) side.  Compression over brain stem has significantly increased. CT attenuation pattern Enhancement and surrounding edema is more or less same.

After examination and conducting the required tests and C.T.Scan Brain Tumor  operation  was suggested by the O.P.No. 2 and it was performed on 15.12.1998.  The Procedure & Findings of the operation are noted in the Discharge Summary as under –

Procedure & Findings:

G.A. lateral position, (lt) Parieto occipital craniotomy done. Dura opened, tumor approached through parietal gyri and excision achieves near total and grayish  vascular tumor. Haemostasis achieved, cavity lined with surgical. Dura closed  primarily.  Bone flap replaced back w/c in  layer’s after putting drain.

The complainant was discharged from the hospital on 25.12.1998. At the time of discharge his Nurological status was as under as mentioned in Discharge summary.

Nurologicl Status at the time of Discharge:

     Subjective : Improved, conscious, oriented loss of vision both eyes

                perception of light+

Objective :   operative wound- healthy

                Rt. LL weakness Gr IV

                R. hemiparesis with Rt. facial paresis+

Mr. B.C.Pal, the learned counsel for the complainants submitted that  before performing operation  the complainant had no problem regarding eye sight. It was assured by O.P.No. 2 Dr. Kelkar that  after the operation paroxysm would be cured permanently in all respects and seizures etc. would be arrested permanently giving a quite normal life to the complainant. However, when the patient regained consciousness he was unable to see. He also experienced paralysis to left side of his body.  O.P.No. 2  assured that due to recent operation of brain, the complainant was unable to see and gradually he would be able to see as ever before and said that operation was successful.  However, till his discharge on 25.12.1999  the complainant did not gain eye vision as mentioned in discharge summary.

          Right from the performance of the operation the complainant  lost eye sight which was experienced by him as soon as he gained consciousness  after the operation.The fact of loss of eye sight has been confirmed  in discharge summary of the hospital leaving there no room for departing from the fact that eye vision is lost during operation only.

          The complainant took radiotherapy  and treatment adviced by the O.P.No. 2 but, the loss of vision did not recover and the complainant lost vision  permanently.   The vision could not regain inspite of treatment of opposite party after discharge  and other Opthamologists. The  papers showing the visit of the complainant to Shri Sathya Sai Institute of Higher Medical Sciences, (Department of Opthamology)Prashanthigram (A.P.) , Dr. MADAN A., Eye Surgeon, Nagpur, Dr. Chandrashekhar Meshram, Neurophysician, Brain Centre Nagpur  are filed by complainant at Annexure 81,82 and 83.

The learned counsel for the complainant further submitted that,  before the operation the complainant had  no  vision problem. The loss of vision occured only due to negligence on the part of opposit parites while performing the operation. The loss of vision  must have been resulted due to damage of some optical nerves during the course of operation. The principle of  res ipsa loquitor  i.e. the facts speeks itself is applicable to the facts of the present case,and it does not require any other proof or expert evidence to substantiate complainant’s case. In support of his arguements Mr. Pal  relied on Supreme Court Judgment in V.Kishan Rao V. Nikhil Super Speciality Hospital, In Civil Appeal No. 2641 of 2010 Decided on 8th March 2010,

In that case the wife of the complainant was admitted for treatment in the hosptal of O.P.1. as she was suffering from fever which was intermittent in nature and was complaining of chill. She was subjected to certain tests by the O.P.No. 1 but the test did not show that she was suffering from malaria. She was not responding to the medicine given by the O.P.No.1. Saline was given to her and the complainant had seen some particles in saline bottle, inspite of bringing this fact to the notice of the authorities of O.P.No.1, no cognizance was taken. After 3 days of the admission the wife of complainant was complaining of respiratory trouble and the complainant brought it to the notice of the authorities of O.P.No.1.  The patient was not responding to the medicines and thus was shifted to Yashoda Hospital in unconscious condition where she could not revived and declared dead.

The complainant filed consumer complaint against the hospital . The District forum relied on the evidence of  Dr. Venkateswar Rao  examined by the O.P. ,who  deposed that the patient was not treated for malaria. But, the death certificate given by the Yashoda Hospital disclosed that the patient died due to cardio respiratory arrest and malaria. In view of the aforesaid finding the District Forum came to the conclusion that the patient was subjected to wrong treatment and awarded compensation of Rs. 2 lakha. The O.P. preferred appeal against the order of the District Forum to the State Commission. The State Commission  allowed the appeal and set aside the order of the District Forum with observations that there is no expert opinon  to state that the line of treatment adopted by the appellant Hospital is wrong or is negligent. The order of the State Commission was challanged by the complainant before the National Commission. The National Commission upheld the order of the state commission and dismissed the appeal . The order of the National Commission was under challange before the Apex Court in the appeal , wherein the Hon’ble Apex Court observed -

“13. In the opinion of the Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enought to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This court makes it clear the in therse matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.

 “47. In a case where negligence is evident, the principle of res ipsa loquitor operates and the complainant does not have to prove anything as the thing(res) proves itself . In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.

54. ........Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expet witness in a give case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or  omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of  knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cased the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.

55.   For the reasons discussed above, this Court holds that it is not bound by the general direction given in paragraph 106 in D’souza(supra). This Court further holds that in the facts and circumstances of the case expert evidence is not required and District Forum rightly did not ask the appellant to adduce expert evidence. ....”

Mr. Pal  further submitted that the patient was admitted on 13.12.1998, but the operation was done by the O.P. on  15.12.1998 after conducting  required tests, therefore, they can not blame the relatives of the complainant for bringing  him late to the hospital.. Instead of C.T. Scan the  O.Ps. should have got  done MRI , which is the advanced and more acurate test to know the position of the brain tumer. If MRI would have been done there would have been no chance for damaging any optitcal nerves at the time of operation  resulting in loss of vision. To support his contention he has placed on record the literature  where in it is stated

“In some cases, MRI can provide clear images of parts of the brain that

 can’t be seen as well the an X-ray, CAT scan (also called as CT scan)

 or ultrasound, making it particulary valuable for diagnosing problems with

 the pituitary gland and brain stem.”

Thus, according to Mr. Pal loss of vision of the complainant is the result of Medical negligence on the part of O.P.No. 1 and 2 while conducting the operation and they are liable to make good the loss suffered by the complainant and his family members.

As against this Mr Bhattad, the learned counsel for the O.P.No. 1 and 2 submitted that as the history  of the  complainant Sanjay shows that when he  was examined by O.P.No. 2 Dr. Kelkar, at the time of admission on 13.12.1998 he was found to be irritable drowsy,  occasionally responding to simple commands, the patient was uncooperative for any subjective examinations therefore,  it was very difficult to conduct a visual acuity test to  have access to Visual acuity in the patient. Patients’ intensity of seriousness had increased since last 5 to 6 days, prior to admission as he was suffering from  Malarial fever   and was shifted to the hospital  when the condition  became worst. Considering the pre operative clinical signs, of the pupils being sluggishly reacting it was difficult to assume whether  the vision power being coming back and therefore, there was no question of any   positive outcome. The delay in bringing the patient to hospital and further delay in giving consent for operation   may have further damaged the optic nerves, which has resulted into a loss of vision power.  The brain tumour has affected a major part of the brain which is also included for the vision power.

      On admission the patient was examined by  O.P.No. 2 Dr. Shailesh M. Kelkar (Neurosurgeon) , and after various tests adviced to go for surgery of brain tumor. The operation was performed on 15.12.2015 by the expert surgens having enough  experience  and  all the required procedures were followed.  The sample of the mass of the tumer was sent for biopsy. The Biopsy report dated 21.12.1998 is placed on record by the O.P. which shows that the tumor was of “GLIOBLASTOMA MULTIFORME” i.e. Brain cancer, which is called grade IV of malignant tumour(Cancer). The brain cancer has reached its last stage and the patient was in a very critical condition. Prognosticate the life span expected for a patient suffering in such a condition is at the most 9 months to one year on an average. With this report, in hand , prognosis was explained. It was quite clear that patient, has very limited life span. As the cancer pertained to brain, which is a vital organ, which controls the entire nervous system of body, complications of functions of body is bound to happen. In the present case the patient was alive for one year because of  successful operation.  In support of his arguements he has placed reliance on the information from Wikipedia, the free encyclopedia   on  “glioblastoma” which is the most common and most aggressive malignant primary brain tumor in humans.  The relavent portion runs as under -

Causes –

There is an association of brain tumor incidence and malaria, suggesting that the anopheles mosquito, the carrier of malaria, might transmit a virus or other agent that could cause glioblastoma.(17)

Prognosis -

The median survival time from the time of diagnosis without any treatment is 3 months, but with treatment survival of 1-2 years is common. Increasing age  (>60  years of age) carries a worse prognostic risk. Death is usually due to cerebral edema or increased intracranial pressure.

The patient was discharged on 25.12.1998 with clear clinical findings and impression typed underneath with the prognosis of the patient and treatment on discharge. Discharge summary is at Annexure R-3.The opinion  as taken by the relatives of patient of other medical professional and expert regarding the visual status is no different than what has been stated by the opponents on the records. The loss of eye vision has no concern at all with the operation of brain tumour or defective and negligent operation, but it is because of lapse of crucial time to take decision for admission and surgery which led to development of such a complication.

     The symptoms and side effects of of Brain tumor & surgery are   available on internet as under -

    Other symptoms can include

• Change in alertness (including sleepiness, unconsciousness, and coma)
• Changes in hearing, taste, or smell
• Changes that affect touch and the ability to feel pain, pressure, different temperatures, or other stimuli
• Confusion or memory loss
• Difficulty swallowing
• Difficulty writing or reading
• Dizziness or abnormal sensation of movement (vertigo)
• Eye problems such as eyelid drooping, pupils of different sizes, uncontrollable eye movement, vision difficulties (including decreased vision, double vision, or total loss of vision)

http//www.nlm.nim.nih.gov/medlineplus/medlineplus.html

Side effects of Brain tumor surgery :

Brain surgery may harm normal tissue. Brain damage can be a serious problem. It can cause problems with thinking, seeing, or speaking. It can also cause personality changes or seizures. Most of these problems lessen or disappear with time. But sometimes damage to the brain is permanent.

Mr.Bhattad further submitted that the O.Ps. adopted the whole required procedure for performning surgery and surgery was successful as the  patient  lived for a period of one year. The loss of vision was the proble occured due to last stage i.e. Grade IV of Cancer brain tumor and not cause of any negligent act on the part of O.Ps. while treating the patient or performing surgery. There is no evidence of expert to show that the due procedure was not adopted at the time of surgery and therefore, O.Ps. cannot be held responsible.  To support his arguements Mr. Bhattad relied on Kusum Shamrao and Ors. V. Batra Hospital and Medical Research Centre and Ors. , AIR 2010 SUPREME COURT 1050, wherein the Apex Court observed as under –

   94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially 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 a error of judgment.

III.       The medical profession 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 standards of a reasonably competent practitioner in his filed.

V.        In the realm of diagnosis and treatment there 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 available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII.    It would not be conductive to the efficiency of the medical profession if not 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 unnecessary 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. Such 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 professionals.      

          In the case before forum,  history of the patient was that   before 4 years of the admission in the hospital of the O.P. on 13.12.1998, he was suffering from astrocytoma and had taken radiotherapy for 1 month. Since 3 days he was having complaints of altered consciousness, vomitings, headache and fever. He was also suffering from Malarial fever.

          On examination it was found that though the patient  was conscious  he was irritable drowsy.  All these sympton were of brain tumor. In such  a condition it was not possible for the O.P.  to examine his vision power. It is specifically mentioned in Case sheet which is at page 41 alongwith the W.S. of  O.P.1 and 2   CRANIAL NERVES.

 “Vision could not be tested as patient is drowsy”.

               The C.T.Scan was  done to know the exact position of tumor. After confirming the existance and exact location of the brain tumor patients’s relatives were adviced to go for surgery, which was done by the O.P.No.2 Dr. S.M. Kelkar, on 15.12.1998. The procedure followd and findings of the surgery are recorded in Discharge summary.  The piece of brain tumer was sent for examination and it was found that the tumor was of  Cancer. Histopathology report dated 21.12.1998 is on record at page No. 47 with W.S.

          It is true that when the patient regained consciousness after operation on 15.12.1998  he complained of loss of vision. He could not regain vision power till discharge from the hospital 25.12.1998 as mentioned in Discharge summary. It is also not disputed that the patitient could not region vision power till the filing of complaint and thereafter till his death.

     Therefore, the crutial pointed to be decided in this case is whether the loss of vision is the result of any negligent act of the O.Ps. in dignosis, operation or treatment.

      In the present case at the time of admission in the hospital the patient was irritable drowsy and was not able to see clearly.  Brain surgery may harm normal tissue and such brain damage can cause problems with seeing along with other problems.  As stated earlier most of these problems lessen or disappear with time. But, sometimes damage to the brain is permanent.  Therefore, there is every possibility of loss of vision of the complainant  because of  damage of the brain by the Grade IV cancer tumor. Mere allegations that the opthalmic nerve might have been damaged or cut at the time of operation by the O.P.No. 2 or insted of C.T.Scan O.P. should have done MRI is not sufficient to prove the negligence on the part of O.Ps.while conducting the surgery or treating the patient. There is no positive evidence on record to prove  such alleged negligence by the O.Ps. In the present case there is no apperant negligence on the part of O.Ps. in treating the patient like in the case of  V. Kishan Rao V. Kihil Super Speciality Hospital (Supra), relied upon by the complainant  where in though the paient was suffering from Malaria and  died of that  he was not treated by the O.P. for Malaria  but was wrongly treated for Typhoid.  Therefore, the ratio in the aforesaid judgment is not applicable to the different set of facts of the case before us and the principal of res ipsa locutor  has no application to the present case.

     The complainant has placed on record the  papers showing the visit of the complainant to Shri Sathya, Sai Institute of Higher Medical Sciences, (Department of Opthalmology) Prashanthigram (A.P.), Dr. MADAN A., Eye Surgeon, Nagpur, Dr. Chandrashekhar Meshram, Neurophysician, Brain Centre Nagpur  at Annexure 81, 82 and 83. But, there is nothing to show that the  loss vision of the complainant  was the result of the wrong procedure adopted by the O.P.s while conducting the surgery or treating him. As observed by the Hon’ble Apex Court in Kusum Shamrao and Ors. V. Batra Hospital and Medical Research Centre and Ors., AIR 2010 SUPREME COURT 1050(Supra), A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.  In the present case there is nothing on record to substantiate the allegations that the loss of vision of the complainant was due to negligence of the opponents. Therefore, the opponents cannot be held liable for the same. Hence  the finding of the point No. 3 is recorded in the negative.

22.     As to point No. 4 :- As the complainant failed to establish that the loss of his vision power was result of  the negligent act  of the opposite parties, he is not entitled for any relief claimed in the complaint. Therefore, point No. 4 is answered in the negative.

      In view of the findings as to points No. 1 to 4 Forum proceed to pass the folowing order –

ORDER

1. The complaint u/s 12 of the Consumer Protection Act, is dismissed.

2. Parties to bear their own costs.

3. Copy of the order be suppled to the parties free of costs.

4. B & C file of the complaint be returned to the complainant.