PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer complaint is as under –
That the Complainant is a businessman. The Complainant has been an avid sportsman and is fond of playing games like squash, cricket, tennis, badminton, snooker, etc. He is a member of the Cricket Club of India, Mumbai. The Opposite Party is practicing doctor and orthopedic consultant. The Opposite Party is a honorary orthopaedic surgeon for Bhatia General Hospital as well as Motiben Dalvi Hospital. The Opposite Party is an honorary professor of orthopaedics at Grant Medical College and St. George’s Hospital. The Complainant became acquainted with the Opposite Party at Cricket Club of India, Mumbai.
2) In or about 2000 the Complainant suffered from sporadic pain in his right elbow. The Opposite Party called Complainant for consulting at his clinic and diagnosed the condition of the Complainant as “Tennis Elbow” wherein the muscles surrounding the elbow were stretched and sore due to stress on the elbow caused by playing strenuous games like squash and tennis. The Complainant was under continuous examination and treatment of the Opposite Party for the said condition since the year 2001. The Opposite Party had reassured the Complainant that his condition was not serious and on treatment by the Opposite Party, would be cured within no time.
3) In the course of treatment, the Opposite Party had administered Cortisone injections to the Complainant. However, the relief provided by these injections was of temporary nature. Thereafter the Opposite Party suggested the Complainant to undergo a simple and small surgery wherein the muscles attached to the elbow which were stretched would be released and thus his condition would be cured quickly. At no time before the surgery, had the Opposite Party indicated to the Complainant that there were any risks associated with the surgery or forewarned him of any complications that could arise out of the surgery. The Complainant relying on the Opposite Party’s expertise and advice got himself admitted at Breach Candy Hospital on 26/12/01. On the next day morning the Complainant was taken to the operation theater where the Complainant’s close friend and a reputed doctor Mr. Nandu Potdar, F.R.C.S. was also present. The Opposite Party carried out operation which was lasted for about three hours. After regaining consciousness, the Complainant realised that he was unable to use his right hand and assumed that his movements were hampered by the bandage of his elbow. When the Complainant discussed with the Opposite Party, the Opposite Party assured the Complainant that this was a temporary condition and his wrist as well as the muscles of his right hand would revert to their normal condition in a short while. The Complainant was thereafter informed that he suffered from a “wrist drop” which meant that his wrist and fingers did not obey instructions from the brain and assumed a life less look. The Opposite Party assured the Complainant that this was temporary phenomenon and prescribed the use of cock-up splint.
4) The Complainant was discharged from the hospital on 28/12/01. On returning home, the Complainant realised that he was still unable to use his wrist and the fingers of his right hand. Prior to the surgery by the Opposite Party, the Complainant had complete use of the fingers of his right hand and had never exhibited signs of wrist drop. In fact it was only post the operation by the Opposite Party that the Complainant exhibited sings of deterioration of the muscles of his right hand, which eventually led to the loss of usage of the wrist, fingers and palm of his right hand.
5) Subsequently Opposite Party advised the Complainant to get an EMG done, which was undergone by the Complainant at Jaslok Hospital on 17/01/02. The Complainant produced copy of EMG report at Exh.‘A’. It is submitted that the EMG report showed total denervation with no evidence of reinnervation in the right Extensor Digitorumcommunis and Extenser Indicis muscles. The Clinical abstract of the report states that the “Patient developed partial wrist and complete finger drop following surgery for tennis elbow – three weeks back.” EMG report findings suggested Axon loss, injury to the right posterior Interosseus nerve with no evidence of physiological continuity. Despite the findings EMG, the Opposite Party advised the Complainant that the wrist as well as muscles of the right hand would be normal in due course and no surgery was required.
6) It is submitted that since the condition of the Complainant was deteriorating the Complainant was forced to seek another doctor’s opinion regarding his disability. The Complainant consulted Dr. Kavrana and Dr. Gomes, micro-vascular surgeons who advised the Complainant to undergo another ‘Exploratory surgery’ to detect the reason of his worsened condition. The Complainant got himself admitted at Breach Candy Hospital and second operation was carried out on 23/06/02 by micro-vascular surgeons Dr. Kavrana and Dr. Gomes wherein it was found that the radial nerve was severely compressed due to the previous surgery carried out by the Opposite Party and had to be freed. The second operation lasted about 2 hours wherein the compressed nerve was freed. After second operation, the “wrist drop” disappeared and the thumb and index finger of his right hand shoed signs of life and the Complainant regained movement of his thumb and index fingers. Thereafter as per recommendation of the Opposite Party the Complainant underwent one year of physiotherapy and treatment of electric currents at the physiotherapy clinic at Mrs. Jayshree Naik to receive the nerve of the fingers of his right hand fully but to no avail. As there was no improvement in condition of right hand the Complainant was advised by Opposite Party to undergo another EMG to analyze his condition. The Complainant underwent another EMG at Jaslok Hospital at 27/01/03. This EMG report also showed total denervation with no evidence of reinnervation in the right Extensor Digitorumcommunis and right Extenser Indicis muscles. The Complainant has eventually loss the use of his finger of his right hand. On 16/07/03 the Complainant served notice upon the Opposite Party setting out the fact as of the case and called upon to the Complainant to pay sum of Rs.10 Lacs as compensation for physical disability and deformity as well as the mental agony suffered by the Complainant. The Opposite Party vide its letter dtd.17/09/03 replied to the aforesaid notice in which he has falsely claimed that disability suffered by the Complainant had nothing to do with the surgery. The Opposite Party has falsely claimed the Complainant has exhibited the Radial Tunnel Syndrome prior to the surgery. Explanation given by the Complainant is after thought and is intended to cover up for the negligence on the part of Opposite Party in performing the surgery. The Complainant realized the real nature and true extent of the injury only after the second EMG report dtd.27/01/03. As per the Complainant cause of action to this complaint arose only on 27/01/03 therefore, present complaint is filed within the period of limitation stipulated under Sec.24(A) of the Consumer Protection Act, 1986. Alternatively, it is submitted if the complaint is barred by limitation, this Forum may extend the cause of limitation and condone the delay so caused under Article 5 of the Limitation Act, 1963.
7) The Complainant has requested to direct Opposite Party to pay to the Complainant an amount of Rs.10 Lacs as and by way of damages for the grossly rash and negligent action of the Opposite Party and mental and physical suffering, deformity and disability, extended medical treatment incurred and additional surgery suffered by the Complainant. The Complainant has also prayed to direct Opposite Party to pay to the Complainant cost of this complaint. Alongwith complaint, the Complainant has produced copies of number of documents at Exh.‘A’ to ‘D’.
8) The Opposite Party has filed written statement and thereby resisted claim of the Complainant contending interalia that the cause of action in this case pertains to the month of December, 2001, the Complainant filed on or after 23/04/04 i.e. more than 2 years after the cause of action. Therefore, the complaint is barred by law of limitation and hence, deserves to be dismissed with compensatory cost.
9) As per the Opposite Party he is Orthopaedic Surgeon, practicing at Mumbai and he has having degrees of Master of Surgery (Orthopaedics) from the Bombay University in 1973. Diploma in Orthopaedics in the year 1972-73. It is submitted that in the year 2000-01 the Complainant was suffering from pain in right forearm near the elbow. He had examined the Complainant and made diagnose of ‘Tendinitis of the muscles at the insertion of the Epicondyle of the Humerus’ – a condition described in common parlance as ‘Tennis Elbow’. The Complainant visited his clinic and after clinical examination suggested a course of three Cortisone injections at the site of maximum pain in his elbow at intervals of three weeks. The Complainant agreed to the same and he administered one such injection, which gave some relief to the Complainant. Then the Complainant never visited him for completing the course. After passing of considerable period, Complainant informed Opposite Party that he had taken some more injections elsewhere but his condition of “Tennis Elbow” had kept deteriorating. As per Opposite Party on re-examination of complaint he came to know the diagnosis of “Epicondylitis”. The Complainant also exhibited the “Radial Tunnel Syndrome”. Therefore, Opposite Party advised Complainant to undergo an operation of “Release of the common extensor origin from the Humerus Epicondyle and decompression of the Posterior Interosseous nerve”. As per the advice, the Complainant got admitted at Breach Candy Hospital on 25/12/01 and he performed surgery on 26/12/01. The surgery was uneventful and all planned procedures as outlined above were successfully carried out. According to the Opposite Party after discharge from the hospital, the Complainant exhibited signs of Radial nerve palsy and hence, he advised Complainant a splint for the same. Within a fortnight, on removing his sutures the Opposite Party noticed that his wrist extensors were recovering well and therefore, he felt that given time, the extensors of his thumb and fingers would also improve. After three weeks though Complainant’s wrist extensors had improved, his finger extensors had remained the same. Therefore, he asked the Complainant to get an EMG study done, which the Complainant got done at Jaslok Hospital on 17/01/02. The EMG report showed that the patient had Axon loss injury to the right posterior Interosseous nerve and with no evidence of physiological continuity, which is in no way connected to the surgical procedure performed.
10) It is submitted by the Opposite Party that complete regeneration is possible in cases of Axonotmesis. The Complainant was advised that a) Dynamic splint for his wrist b) Physiotherapy c) No surgery at present but to wait and watch. According to the Opposite Party, without his knowledge, the Complainant consulted some surgeons and he learnt that Complainant had undergone surgery. Subsequently he learnt that Complainant’s nerve was found to be intact except for some fibrosis.
11) After some time, the Complainant met him at Cricket Club of India. He advised Complainant to attend the physiotherapy cline of Mrs. Jayshree Naik at Churchgate. The Complainant has never consulted Opposite Party again but used to show the Opposite Party his hand whenever they met at the Cricket Club of India. Opposite Party saw the Complainant gradually resume his activities and also started playing squash again while attending physiotherapy. After about a year he suggested Complainant to repeat EMG study and Complainant carried out EMG at Jaslok Hospital. Finding of EMG report showed that second surgery had no beneficial effect. The Opposite Party had suggested to the Complainant to undergo ‘Tendon Transfers’ to correct the residual function but the Complainant refused to do so.
12) The Opposite Party has denied each and every allegation made against him by the Complainant. According to the Opposite Party, he had explained to the Complainant all the aspects of surgery, including possible complications and this indicated in the consent for surgery of Breach Candy Hospital singed by the Complainant. The said medical record is in the possession of Breach Candy Hospital. The Opposite Party admitted that Dr.Nandu Potdar, General Surgeon was present in the operation theatre when he carried out surgery of the Complainant and submitted that Dr. Potdar has not made any comments during the procedure. Opposite Party has denied that Complainant has developed “Wrist Drop” during his stay at the hospital. According the Opposite Party, “guarded prognosis” was given to the patient since no doctor can be sure of the outcome of nerve disease. He has denied allegations that EMG was recommended by him at the behest of Dr. Potdar. The Opposite Party has relied upon operation notes of second surgery submitting that in the operation notes it is stated that “both superficial and deep parts of the radial nerve exposed and found intact except for the thickened part of the deep branch”. It is further mentioned in the second surgery notes that there was no destruction of the nerve, and there is not necessity of any graft. The Opposite Party has produced copy of the operation notes alongwith written statement at annexure ‘B’. It is submitted that the aforesaid document clearly shows that the nerve was not damaged.
13) According to the Opposite Party, he has given reply to the Complainant’s notice. It is contended that the Complainant has made false allegations of deficiency in service on his part, as the Complainant has made false allegations in complaint. There is no negligence or deficiency in his service and therefore, the Complainant is not entitled to recover any compensation or entitle to any relief. The complaint is filed beyond period of limitation with intention to harass the Opposite Party and therefore, complaint be dismissed with cost.
14) The Opposite Party has filed affidavit in support of the written statement. Xerox copy of his Degrees and Diploma and Operation Sheets of Second Surgery. The Opposite Party had filed an application to dismiss the complaint, as complaint is hopelessly time barred. The Opposite Party has requested to frame preliminary issue of limitation. In the said application the Opposite Party had called upon the Complainant to produce indoor case papers of Breach Candy Hospital. The Complainant has filed his affidavit dtd.31/04/04 and alongwith said affidavit he had produced copy of discharge folio of Breach Candy Hospital. The Opposite Party has filed his affidavit dtd.15/06/04. Both the parties have produce xerox copies of medical literature including Campbell’s Operative Orthopaedics. The Complainant was allowed to serve interrogatories to the Opposite Parties. Opposite Parties has given reply to the interrogatories on affidavit. The Complainant has filed written argument. The Opposite Party has also filed written argument.
15) The Complainant has produced original Surgical Discharge Folio of Breach Candy Hospital of both the surgeries.
16) Heard oral submissions of Ld.Advocate Pradeep Madhyan for the Complainant and Dr. M.S. Kamath, Representative of Opposite Party. As mentioned above, the Opposite Party has raised contention that complaint is not filed within stipulated period of limitation and so the complaint is hopelessly time barred. Opposite Party had filed an application to frame preliminary issue of limitation. Point of limitation raised by Opposite Party goes to the root of the matter.
17) Following points arises of our consideration and our findings thereon are as under -
Point No.1 : Whether the complaint is barred by law of limitation ?
Findings : Yes.
Point No.2 : Whether the Complainant has proved deficiency in service on the part of Opposite Party ?
Findings : Does not survive.
Point No.3 : Whether the Complainant is entitled to recover compensation of Rs.10,00,000/- and cost of this complaint from
the Opposite Party ?
Findings : No
Reasons :-
Point No.1 :- Following facts are undisputed fact that in the year 2000 the Complainant suffered from sporadic pain in his right elbow. The Complainant and the Opposite Party are members of Cricket Club of India, Mumbai. The Complainant had become acquainted with the Opposite Party at Cricket Club of India, Mumbai. When the Complainant realised sporadic pain in his right elbow he consulted Opposite Party and Opposite Party diagnosed the condition of Complainant as “Tennis Elbow”. The Complainant was under the continuous examination and treatment of the Opposite Party for the said condition since the year 2001 and had made several visits to the clinic of Opposite Party. It is not in dispute that in the course of treatment, the Opposite Party had administered Cortisone injection to the Complainant. One Cortisone injection was given by the Opposite Party and as per his advice the Complainant had taken two Cortisone injections from other doctors. The Cortisone injections had given relief only of a temporary nature. As per Complainant, thereafter Opposite Party suggested that the Complainant should undergo a simple and small surgery wherein the muscles attached to the elbow which were stretched would be released and thus his condition would be cured quickly. The Complainant relied upon the Opposite Party’s expertise and advice, and got himself admitted in Breach Candy Hospital on 26/12/01. On the same day the Opposite Party performed operation. During the aforesaid operation, the Complainant’s close friend and a reputed doctor Mr. Nandu Potdar, F.R.C.S. was also present. The operation lasted for about three hours. When the Complainant regained consciousness, he realised that he was unable to use his right hand and assumed that his movements were hampered by the bandage of his elbow. He discussed with the Opposite Party, the Opposite Party assured him that this was a temporary condition and his wrist as well as the muscles of his right hand would revert to their normal condition in a short while.
According to the Complainant, thereafter he was informed that he suffered from a “wrist drop” which meant that his wrist and fingers did not obey instructions from the brain and assumed a life less look. It is contended that that the Opposite Party assured the Complainant that this was temporary phenomenon and that things will be back to normal very soon and prescribed the use of cock-up splint.
It is matter of record that the Complainant was discharged from the Breach Candy Hospital on 28/12/01. According to the Complainant, on returning home, he realised that he was still unable to use his wrist and the fingers of his right hand. It is contended that in fact, it was only post the operation by the Opposite Party that the Complainant exhibited signs of deterioration of the muscles of his right hand, which eventually led to the loss of usage of the wrist, fingers and palm of his right hand.
It is alleged by the Complainant that after consultation with Dr. Nandu Potdar, Opposite Party advised the Complainant to get an EMG done, which was undergone by the Complainant at Jaslok Hospital on 17/01/2002. The EMG report showed total denervation with no evidence of reinnervation in the right Extensor Digitorumcommunis and Extenser Indicis muscles. The Clinical abstract of the EMG report states that the “Patient developed partial wrist and complete finger drop following surgery for tennis elbow – three weeks back.” The EMG report concluded that findings suggested Axon loss, injury to the right posterior Interosseus nerve with no evidence of physiological continuity. The Complainant has produced EMG report alongwith the complaint which is marked at Exh.‘A’.
According to the Complainant since his condition was deteriorating, he consulted Dr. Kavrana and Dr. Gomes, micro-vascular surgeons who advised the Complainant to undergo another ‘exploratory surgery’ to detect the reason of his worsened condition. Then the Complainant got himself admitted at Breach Candy Hospital and second operation was carried out on 23/01/02 by micro-vascular surgeons Dr. Kavrana and Dr. Gomes wherein it was found that radial nerve was severely compressed due to the previous surgery carried out by the Opposite Party and had to be freed. As per the Complainant, the second operation lasted about 2 hours wherein the compressed nerve was freed. After the second operation, the “wrist drop” disappeared and the thumb and index finger of his right hand showed signs of life and the Complainant regained movement of his thumb and index fingers. However, the remaining finger of the right hand continued to wear their lifeless and the Complainant could not use remaining fingers. It is contention of the Complainant that as per recommendation of the Opposite Party, he underwent one year of physiotherapy and treatment of electric currents at the physiotherapy clinic of Mrs. Jayshree Naik to revive the nerve of the fingers of his right hand fully but to no avail. It is alleged by the Complainant that thereafter Opposite Party advised himself to undergo another EMG to analyze his condition and therefore, the Complainant underwent another EMG at Jaslok Hospital at 27/01/03. Copy of second EMG is produced alongwith the complaint i.e. at Exh.‘B’. The Second EMG report also showed total denervation with no evidence of reinnervation in the right Extensor Digitorum Communis and right Extensor Indicis Proprius muscles. It is case of the Complainant the result of the second EMG report revealed that the Complainant had suffered damaged to his right radial nerve. At present the Complainant has effectively lost the use of his right hand’s fingers and is unable to perform simplest of tasks and therefore, the Complainant has filed this complaint.
Ld.Advocate for the Complainant has submitted that the Complainant underwent second EMG at Jaslok Hospital on 27/01/03 and the second EMG report showed total denervation with no evidence of reinnervation in the right Extensor Digitorum Communis and right Extensor Indicis Proprius muscles and the Complainant realised that he has suffered damaged of permanent nature of his right hand Radial nerve due to the tennis elbow operation performed by the Opposite Party and therefore, Complainant has filed this complaint. From second EMG report dtd.23/01/03 this complaint is filed within 2 years i.e. on 30/04/04 and therefore, there is no substance in the allegation made by the Opposite Party that complaint is barred by law of limitation.
Ld.Advocate for the Complainant has submitted that Opposite Party has carried out Tennis Elbow surgery on the Complainant at Breach Candy Hospital on 26/12/01 but immediately after the surgery the Complainant could not realise the damage which was caused to the right hand due to the negligence of the Opposite Party. When the Complainant regained consciousness, that time the Complainant realised that he was unable to use his right hand and assumed that his movements were hampered by bandage of his elbow. When the Complainant discussed with the Opposite Party, the Opposite Party assured that this was a temporary condition and Complainant’s wrist as well as the muscles of his right hand would revert to their normal condition. Considering experience of the Opposite Party, the Complainant relied upon his assurance but there was no improvement and Complainant was told that he suffered from a “wrist drop” and Opposite Party prescribed use of cock-up splint. In support of his contention, Ld.Advocate of the Complainant has referred to surgical discharge folio of the Breach Candy Hospital of first surgery. It is submitted that even after discharge from the hospital, there was no improvement and therefore, as per the suggestion of the Opposite Party the Complainant underwent EMG test at Jaslok Hospital.
Ld.Advocate for the Complainant has relied upon the decision of National Consumer Disputes Redressal Commission, New Delhi in Dr.Shyamkumar V/s. Rameshbhai reported in I (2006)CPJ 16 (NC) in which it is held. “Limitation – time barred - medical negligence – cause of action arose only when the Complainant actually came to know about failure of operation – complaint within period of limitation”
Dr. Kamath on behalf of Opposite Party has submitted that present complaint is hopelessly time barred. He has referred the provisions of Sec.24(A) of the Consumer Protection Act, 1986 and submitted that the Complainant ought to have filed this complaint within 2 years from the date of cause of action i.e. from the date when Opposite Party performed “Tennis Elbow surgery to release common Extensor from the Humerus Epicondyle and Decompress of the Posterior Interosseous Nerve” on 26/12/01. The Complainant has not filed this case within 2 years from the date of surgery, but it is filed on 30/04/04. About more than 4 months delay is caused in filing this complaint. Alongwith complaint, the Complainant has not filed an application for condonation of delay and therefore, complaint is barred by law of limitation. It is further submitted that as per the Complainant when he came to know that damage of permanent nature caused to his Radial nerve, the Complainant has filed this complain. It is submitted that from the evidence adduced by the Complainant it is clear that when the Complainant regained consciousness he noticed that he was not able to use his right hand. Subsequently he informed that he suffered from “wrist drop”. It was necessary for the Complainant to file the complaint within 2 years as prescribed under Sec.24(A) of the C.P.A. from the date when he came to know that he suffered wrist drop but the Complainant has not filed complaint within 2 years from the date when he came to know that he suffered from “wrist drop”. Further according to the Complainant, after discharge from the hospital, he was unable to use his right hand and as per the advised of Opposite Party he gets an EMG done at Jaslok Hospital on 17/01/2002. Copy of EMG report is produced at Exh.‘A’. Conclusion in the said EMG report dtd.17/01/02 is as under –
“These findings show evidence to suggest Axon loss injury to the right Posterior Interosseous Nerve with no evidence of physiological continuity.” Present complaint is not filed within 2 years after receipt of EMG report dtd.17/02/02.
Dr. Kamat has submitted that in the complaint itself the Complainant has clearly stated that after EMG report dtd.17/01/02 he consulted Dr. Kavrana and Dr. Gomes, micro-vascular surgeons who advised the Complainant to undergo another ‘Exploratory surgery’ to detect the reason of his worsened condition. Accordingly the Complainant had undergone second surgery in Breach Candy Hospital on 23/01/02 which was carried out by micro-vascular surgeons Dr. Kavrana and Dr. Gomes. It is submitted that the second surgery was carried out to detect the reason of worsened condition and that time Dr. Kavrana and Dr. Gomes reopened part of the body where surgery was done by the Opposite Party. It is alleged by the Complainant that after second surgery “wrist drop” was disappear but there was no improvement in the right hand fingers except thump and index finger. It is vehemently submitted on behalf of Opposite Party that even liberally construed at the most it can be said that cause of action for this complaint arose on second surgery which was carried by another doctors on 23/01/02. Present complaint is not filed within 2 years from 23/01/02. More than 3 months and 7 days delay is caused in filing of this complaint. The Complainant has not filed application for condonation of delay. On the contrary it is stated in complaint para no.12 that the complaint is filed within period of limitation under Sec.24(A) of Consumer Protection Act, 1986. In para no.13 of the complaint, the Complainant has prayed to extent period of limitation and condone the delay if any caused under Article 5 of Limitation Act. However, the Complainant has not assigned sufficient cause to condone the delay and therefore, complaint deserves to be dismissed with cost. According to Dr. Kamath, cause of action to this complaint cannot be extended beyond the period of second operation performed by other two surgeons.
As discussed above, when the Complainant suffered sporadic pain in his right elbow he consulted Opposite Party and Opposite Party diagnosed the condition of Complainant as “Tennis Elbow”. Initially the Opposite Party had given conservative treatment by prescribing Cortisone injections. The Complainant received temporary relief but his condition was not improved. He again consulted Opposite Party, Opposite Party advised to him to undergo an operation to release of common extensor origin from the Humerus Epicondyle and Decompress of the Posterior Interosseous Nerve. The Opposite Party performed aforesaid operation on the Complainant at Breach Candy Hospital on 26/12/01. The Complainant has produced original surgical Folio of Breach Candy Hospital. Name of consultant surgeon is mention as Dr. S. Ugrankar. Final diagnose are stated as “Lateral Epicondylitis (R) Humerus”. In the column operation it is stated that “(R) soft tissues release and Post Interosseus N’ decompression”. In column “POST-OP-TREATMENT AND SEOLATE” is written as “Uneventful”.
It is grievance of the Complainant that after aforesaid operation he suffered a “wrist drop”. The Opposite Party had prescribed cock-up splint. After discharge from the hospital he was not able to use his right hands finger. At the instance of his friend Dr. Nandu Potdar a reputed doctor, Opposite Party advised the Complainant to get EMG test again. The Complainant undergone EMG test at Jaslok Hospital on 17/01/02. Copy of the said report is produced alongwith complaint at Exh.‘A’. Conclusion given in the said EMG report is stated above which suggested Axon loss injury in the right Posterior Interosseous Nerve.
It is grievance of the Complainant that on 26/12/01 Opposite Party carried out surgery in the Breach Candy Hospital negligently and without taking proper care and precaution. It is submitted that due to the deficiency in service on the part of Opposite Party the Complainant suffered “wrist drop” and findings up EMG report confirm Axon loss injury to the right Posterior Interosseous Nerve”. Cause of action is bundle of facts. As per provisions of Sec.24(A), the complaint is required to file within 2 years from the date of cause of action. In the instance case as mentioned above as per the Complainant, the Opposite Party negligently carried out operation on 26/12/01 and thereby he suffered injury of permanent nature to his right hand therefore, cause of action for this complaint took place on 26/12/01. As per the Complainant’s advocate, when the Complainant realised damage for his right hand due to the negligent act, Complainant has filed this complaint within period of limitation. Immediately after surgery the Complainant noticed that he suffered ‘wrist drop’. In the first EMG done at Jaslok Hospital on 17/01/02, the Complainant came to know about the findings of this report, even then the Complainant has not filed this complaint. It is clear from the evidence on record that after first EMG report dtd.17/01/02 the Complainant consulted Dr. Kavrana and Dr. Gomes – micro vascular surgeons, advised the Complainant to undergo another Exploratory surgery to detect the reasons of his worsened condition. The Complainant had undergone second surgery on 23/01/02 which was carried out by Dr. Kavrana and Dr. Gomes. It was exploratory surgery. It is the contention of the Complainant that surgery carried out on 23/01/02 in which it was found that Radial nerve was severally compressed due to the previous surgery carried out by the Opposite Party. In that case, the Complainant ought to have filed this complaint within 2 years from the date of second surgery i.e. 23/01/02 but this complaint is filed after expiry of period of limitation and delay of about 3 months and 7 days is caused in filing of this complaint.
Dr. Kamath has submitted that the Opposite Party carried out first surgery on 26/12/01 at Breach Candy Hospital on the Complainant and that time the Complainant’s close friend and Dr. Nandu Potdar was present during the operation as an observer. If there was any negligence, Dr. Nandu Potdar must have brought negligence if any committed by the Opposite Party to the notice of the Complainant. Further he has referred to Surgical Discharge Folio of Breach Candy Hospital of surgery dtd.26/12/01 and pointed out that in the Surgical Discharge Folio it is mentioned that Post-Op-Treatment and Seouele as “Uneventful” It is submitted that the Opposite Party is hold Degrees of Master of Surgery (Orthopaedic) from the Bombay University in 1973. Even in the complaint the Complainant has mentioned that the Opposite Party is working as honorary orthopaedic surgeon in Bhatia General Hospital as well as Motiben Dalvi Hospital. The Opposite Party is an honorary professor of orthopaedics at Grant Medical College and St. George’s Hospital. According to the Dr. Kamath, Opposite Party has taken all precautions while performing operation of the Complainant and there is no substance in the allegations of negligence on the part of the Opposite Party. In support of his contention, Dr. Kamath has relied upon observations of the Hon’ble Supreme Court in Jackob Mathew V/s. State of Punjab & Anr. In the aforesaid judgement the Hon’ble Supreme Court has observed that “No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur”.
The Hon’ble Supreme Court has further observed that –
“Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it would have been used.”
Dr. Kamath has referred the notes of second surgery performed by Dr. Kavrana and Dr. Gomes, on the Complainant at Breach Candy Hospital about 28 days. Xerox copy of the notes is produced by the Opposite Party alongwith the written statement. Post operative diagnoses are stated as under –
“Free movement of the nerve how ………. There is no destruction of nerve, there is necessity of any graft……..”
It is submitted that even in the second operation notes there is nothing to suggest there was negligence in performing first operation by the Opposite Party. It is submitted that even on merit, the Complainant has failed to prove case of medical negligence against Opposite Party.
As the Complainant has not filed this complaint within prescribed period of limitation so called explanation given by the Ld.Advocate for the Complainant that for the first time on second EMG test, the Complainant came to know about permanent damage caused to the Complainant’s right hand cannot be accepted. The Complainant has not given sufficient cause for the delay caused. The Complainant has not filed separate application for condonation of delay. Considering the facts and circumstances of the case, in our opinion cause of action to this complaint firstly took place on 26/12/01 when Opposite Party performed surgery on the Complainant at Breach Candy Hospital. After surgery when the Complainant regained consciousness he realised that he was unable to use his hand. Subsequently, it was informed to the Complainant that he suffered from ‘wrist drop’. Thereafter the Complainant discharged from the hospital on 28/12/01. As per the Complainant in the first EMG report dtd.17/01/02 it was specifically mentioned that the patient develop partial wrist and complete finger drop following surgery for Tennis Elbow – three week back. Therefore, it is clear that the Complainant became aware about the alleged injury caused to his hand during the course of tennis elbow surgery performed by the Opposite Party. It is the matter of fact that thereafter the Complainant consulted Dr. Kavrana & Dr. Gomes and as per their advice undergone another Exploratory Surgery in which it was found that Radial nerve was severally compressed due to the previous surgery carried out by the Opposite Party. In view of the aforesaid fact, the Complainant ought to have file complaint against the Opposite Party on the ground of negligence or deficiency in service within 2 years at least from the second surgery carried out by another doctors on 23/01/02. We do not find substance in the submission advanced on behalf of the Complainant that the Complainant was kept under the false impression that condition of his wrist and muscles would recovered cannot be accepted and in view of the facts, period of limitation cannot be extended as requested by the Complainant. Therefore, we hold that the Complainant has failed to assign sufficient cause to condone the delay caused. The complaint is barred by law of limitation. Hence, we answer point no.1 in the affirmative.
Point Nos.2 & 3 :- As the complaint is barred by law of limitation, point no.2 does not survive for our consideration and the Complainant is not entitled to recover any compensation or any other relief from the Opposite Party. Hence, we answer point nos.2 and 3 accordingly.
For the reasons discussed above, we pass the following order –
O R D E R
i.Complaint No.107/2004 is hereby dismissed.
ii.No order as to cost.
iii.Certified copies of this order be furnished to the parties.
