BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
FA.No.292/2007 AGAINST C.C.No.136/2005 DISTRICT FORUM-II, KRISHNA AT VIJAYAWADA.
Between:
Dr.P.J.Brahmanandam,
Occ:Orthopaedic Surgeon,
The Orthopedic & Polio Surgical
Nursing Home, Kusturibaipet,
Vijayawada. Appellant
Opp.party
And
G.V.Venugopala Sharma,
S/o.Subrahmanyam,
Occ:Electrician,
R/oAPHB Colony, Bhavanipuram
Vijayawada-10. Respondent/ complainant
Counsel for the Appellant: Mr.S.S.Varma
Counsel for the Respondent: Mr.P.S.Anjaneyulu
FA.No.655/2007 AGAINST C.C.No.136/2005 DISTRICT FORUM-II, KRISHNA AT VIJAYAWADA.
Between:
G.V.Venugopala Sharma,
S/o.Subrahmanyam,
Occ:Electrician,
R/oAPHB Colony, Bhavanipuram
Vijayawada-10. ..Appellant/
Complainant
And
Dr.P.J.Brahmanandam,
Occ:Orthopaedic Surgeon,
The Orthopedic & Polio Surgical
Nursing Home, Kusturibaipet,
Vijayawada. Respondent
Opp.party
Counsel for the Appellant: M/s.P.S.Anjaneyulu.
Counsel for the Respondent:Mr.S.S.Varma.
QUORUM: SMT.M.SHREESHA, MEMBER
&
SRI K.SATYANAND, MEMBER
.
TUESDAY, THE SIXTH DAY OF APRIL
TWO THOUSAND TEN
Oral order:(Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.C.No.136/2005 on the file of District Forum-II, Krishna at Vijayawada, opposite party preferred appeal F.A.No.292/2007 and the complainant preferred F.A.No.655/2007.
Since both the appeals arise out of the same C.D., they are being disposed of by a common order.
The brief facts as set out in the complaint are that the complainant, who was working as an electrician in Koneru Lakshmaiah Engineering College on a monthly salary of Rs.3,700/- suffered spinal problem and underwent surgery for L4 and L5 long back an it was subsided. The complainant again suffered with severe back ache and hence he approached the opposite party on 24-11-2003 and it was diagnosed that the complainant was suffering with Pelvic Traction, NSAIVS and Epidural with symptoms of back pain and prescribed medicine but the pain did not subside. The complainant again approached opposite party and after investigations, the opposite party came to a conclusion that the complainant was suffering from disc prolapse at L2 and L3 and conducted Laminectomy on 29-12-2003. After the said operation, the complainant developed bladder and bowel inconsistency and neurological defect on left quadriceps side (3) and opposite party observed and gave regular treatment but the defects were not rectified. It is the case of the complainant that the defects were due to failure of operation and negligence of the opposite party inspite of treatment for two months as inpatient. The complainant got issued a legal notice on 25-4-2005 to the opposite party demanding compensation of Rs.10,00,000/- for which the opposite party replied denying negligence. Hence the complainant approached the District Forum for a direction to the opposite party to pay damages of Rs.10,00,000/- and other costs.
Opposite party filed counter alleged that he operated on the complainant 16 years ago and thereafter he overworked and again developed pain because of stress and strains to the spinal cord and approached him. After thorough examination, he found that the complainant was suffering with similar problem at L2 and L3, he operated and the operation was success. The alleged complication of weakness in legs has occurred due to neurological disease and that the said disease developed 8 days after the operation on its own accord and has nothing to do with the operation conducted by the opposite party doctor at L2 and L3 and submitted that there was no negligence in the operation conducted and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A9 and the pleadings put forward, the District Forum came to the conclusion that there was negligence on the part of the opposite party and directed him to pay to the complainant Rs.2,75,000/- with simple interest 7.5% per annum from the date of filing the complainant till the date of realization together with costs of Rs.2,000/-.
Aggrieved by the said order, the opposite party preferred appeal F.A.No.292/2007 and the complainant preferred F.A.No.655/2007.
The facts not in dispute are that the complainant approached the opposite party and was operated by the opposite party 16 years ago on L4 and L5. It is the case of the opposite party that he once again suffered back ache and approached the same opposite party on 24-11-2003 and the opposite party doctor diagnosed his problem as Pelvic Traction, NSAIVS and Epidural with symptoms of back pain and was prescribed medicines but the pain did not subside. Once again the complainant approached the opposite party and he was advised to undergo surgery once again since there was a disc prolapse at L2 and L3 and subsequently Laminectomy was conducted on 29-12-2003 after the said operation, the complainant developer bladder and bowel inconsistence, a neurological defect on left quadriceps side (3) and the opposite party treated him for the same and also gave medical service to the complainant for the purpose of medical leave. It is the further case of the complainant that it was only due to the failure of the appellant that the back pain continued inspite of treatment by the opposite party for more than two months.
It is the case of the opposite party that after the first operation 16 years ago, the complainant over worked and it was only because of stress and strain to the spinal cord that he developed back pain and after thorough examination, he found that the complainant was suffering with a similar problem at L2 and L3. He operated upon the complainant and the operation was a success. The weakness in legs complained by the complainant has occurred due to neurological disease and had nothing to do with the operation conducted on L2 and L3 of Lumbar spine. The opposite party contends that the complainant was attending to his duty as an electrician in the Engineering College without using a walker and after a period of one and half years, he started complaining about the weakness and that it is not due to any negligent operation.
Admittedly the complainant was operated on L4 and L5 of Lumbar spine 16 years ago and once again approached the same opposite party doctor on 24-11-2003. We observe from the record that the second operation was also done by the same opposite party at L2 and L3 of the lumbar spine. It is the case of the complainant that the second operation failed leading to weakness in the legs and failure to walk independently. We also observe from the record that the complainant did not file any expert opinion to establish his case that the second operation was negligently performed and that there is any nexus to the second operation and the weakness in his legs. It is not the case of the complainant that the back pain was due to the same problem recurring on account of the first operation on L4 and L5. It is his specific case that the same back pain reoccurred and the Laminectomy done on L2 and L3 was a failure resulting in his inability to walk independently. It is the defense of the opposite party doctor that the weakness in legs is due to neurological disorder and has nothing to do with the operation of L2 and L3. Ex.A6 also shows that the complainant was attending to duty and filed this complaint only after one and half years after the Laminectomy was done. The complainant has not substantiated as to what exactly the line of treatment should be and what the doctor ought to do and did not do or perform as per the standards of medical parlance. We rely on the judgement of the apex court in Martin F. D’Souza Vs. Mohd. Ishfaq reported in I (2009) CPJ 32 (SC) the Supreme Court opined :
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men.... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...."
The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time ……
Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
in which the Apex court held that unless there is expert opinion to establish negligence against the line of treatment rendered by a doctor, the consumer forum cannot hold that there is negligence. In the absence of any expert opinion or even documentary evidence to establish that there is negligence in the line of treatment offered by the doctor, we are of the considered view that the complainant failed to establish any negligence on behalf of the opposite party doctor and hence the appeal, F.A.No.292/2007 filed by the opposite party doctor is allowed and the order of the District Forum is set aside and consequently the complaint is dismissed. For the aforementioned reasons F.A.No.655/2007 filed by the complainant is also dismissed.
In the result F.A.No.292/2007 is allowed and the order of the District Forum is set aside and consequently the complaint is dismissed and as a consequence F.A.No.655/2007 fails and is also dismissed. There shall be no order as to costs.
Sd/-MEMBER.
Sd/-MEMBER.
JM Dt.06-4-2010
