Date   : 29/10/2012.

Per Mr.B.A.Shaikh, Hon`ble Presiding Judicial Member.

1.       This appeal is preferred by the original complainant against the judgment and order dated 20.2.2008 passed by District Forum, Aurangabad in C.C.No.280/06, by which complaint has been dismissed.

2.       The allegations made in the complaint in brief are that complainant had deformity since her birth in her left leg due to degeneration of bone of her left leg.  Therefore Dr.Ayyar of Solapur operated upon her said leg and fixed the joint of that bone when she was aged about 1 ½ years. When she attained the age of 14 years her left leg had shortened by six inches as compared to right leg.  Appellant was thereafter treated by Dr.Milind Choudhary(respondent No.3) of Akola and he operated upon her and made her both legs equal. However, she could not bend her left leg.  She could not sit cross-legged.  She could walk for long distance.  But she could do all types of work.  She approached to respondent No.2 Dr.Shivkumar Santpure of Aurangabad. He advised her to remove the patella of left knee and to implant artificial patella make of steel.  The appellant did not agree for the same. In the month of November/December 2002 appellant read advertisement published in local newspaper given by respondent No.2. He had assured that such type of disability as suffered by the complainant can be removed and 100% recovery can be made with the help of operation.  She along with her parents approached to respondent No.2.  At that time he advised her for surgery of the left leg.  However, the appellant and her parents refused to remove the patella of her left leg.  Respondent No.2 assured that her patella will not be removed and said that only over grown bone of the leg will be removed to the little extent and small device would be installed in between two bones of that leg. He also assured that appellant would not suffer from any trouble.  Therefore  appellant gave consent for the said operation and signed printed consent form. Signature of her sister Anuradha was also taken on it.  Accordingly, respondent No.2 performed operation on her left leg in respondent No.1`s hospital on 13.2.2003 and at that time she was indoor patient for 15 days.  On her discharge, she used to go for follow up check up to respondent No.1`s hospital monthly.  However, after 15 days of the operation, appellant was unable to walk and she was feeling pain in her said leg.  She was unable to sit and her said leg started bending towards inside.  She consulted respondent No.2 from time to time and he gave painkiller medicines from time to time to her.  She took those medicines for two years continuously.  However, the appellant got no relief. On the contrary her pain and disability have been increased. Therefore appellant approached to Dr.Milind Joshi  of Solapur who on 7.3.2005 informed the appellant that her patella has been removed. He also informed her about deficiencies in the operation and treatment in the hospital of respondent No.1.  At that time appellant learnt that respondent NO.2 has cheated her.  She has become permanent disable to the extent of 50% due to removal of patella from her leg without her consent. Appellant had paid Rs.20,000/- to 25,000/- to respondent No.1 and Rs.5000/- to respondent No.2 for her treatment. She therefore  claimed the total compensation of Rs.7 lakhs from respondent No.1 and 2.  During the pendency of the complaint, after the written version was filed by respondent No.1 & 2 making certain allegations against Dr.Milind Choudhary of Solapur, he was impleaded as opponent NO.3 in the complaint by the complainant.

3.       Respondent No.1 & 2 in their common written statement filed before the District Forum below admitted that appellant was initially examined by respondent No.2 as out door patient in the respondent No.1`s hospital on 9.12.2002.  At that time she was aged about 25 years and on information given to respondent No.2 he learnt about history of respondent No.1. They denied the allegations made against them in complaint.  They came with the case that when appellant was aged 14 years, Dr.Milind Choudhary of Akola performed unsuccessful operation on her and during operation the left knee of the appellant had become total useless and when second time Dr.choudhary applied the plaster over her left leg, the left side knee of appellant had again worsened. Patella of her left leg sustained fracture and it was broken into pieces when Dr.Choudhary tried to bend it. On examination of complainant, respondents also found the gap in between her thigh and pain of the thigh was also not reduced and left leg was bending only up to 5 to 10 degree.  She was having severe pain in left knee.  After detail discussion by appellant with respondent No.2 and her parents, appellant and her parent voluntarily agreed for surgical operation and complainant & her sister signed the consent letter.  Therefore on 13.2.2003 the complicated surgery was performed by respondent  No.2.  At that time, respondent No.2 removed successfully all those pieces of broken patella as caused during treatment by Dr.Milind Choudhary of Akola.  After said operation left knee of the appellant could be bent upto 100 degrees.  Therefore  she was discharged from respondent No.1`s hospital on 25.2.2003. On 10.3.2003, respondent No.2 re-examined  the appellant and her stitches were removed.  He advised her some exercise and to come for  re-examination after one month.  She did not come for re-examination. On the contrary, her father informed respondent No.2 that  due to successful operation, appellant has been married.  Thus both the respondents have been submitted that there was no deficiency in service provided by them to the  appellant.  They also submitted that complaint is time barred. They therefore  prayed that complaint may be dismissed.

4.       District Forum below after having recorded the evidence of both sides and having heard them, passed the impugned judgment and order. It observed in the impugned judgment and order that, from the evidence adduced by the complainant no negligence is proved on the part of respondents.  It also observed that there is no opinion of any expert to prove as to whether operation performed by respondent No.2 was proper or not. So far as allegations about removal of patella of left leg by respondent No.2, it observed that there is no evidence to show that respondent No.2 removed the said patella of left knee and that even the surgery was performed as per letter of consent given by appellant/complainant.  It further observed that as per consent letter, appellant/complainant has given consent for quadricepsplasty and that words used in the consent letter also shows that other surgery can be done as would be considered necessary.  The patellectomy was  done instead of quadricepspalsty, as per consent of complainant.  It also observed that the cause of action for the filing complaint arose on 13.2.2003 when the said surgical operation was performed and complaint was not filed within two years from that date and hence it is time barred.  In view of said conclusion complaint came to be dismissed.

5.       We have heard Adv.Shri.P.R.Adkine present for appellant and Adv.Shri.Ishwar Jadhav for respondent No.1 & 2.  None appeared for respondent No.3 Dr.Milind Choudhary. We have also perused the papers placed before us.

6.       Adv.Shri.Adkine submitted that admittedly consent of appellant was obtained for surgery called as quadricepsplasty.  He further submitted that surgical operation was performed other than the said consent i.e. for patellectomy and therefore  on this sole ground it is proved that there is deficiency on the part of both the respondents in  providing service to the appellant. He has drawn our attention to letter of consent signed by appellant and her sister. He has also brought to our notice letter dated 22.2.2004 along with annexure written by respondent No.2 to Dr.K.S.Sancheti of Pune while referring the appellant to him. He has also brought to our notice the subsequent report of S.P.Institute of Neuroscience showing that during the examination of appellant no patella was found.  He relied upon the observation made in case of “Samira Kohli –Vs- Prabha Manchanda & Anr.” reported in 2008 AIR SCW 855.  In that case, consent was given by the complainant for diagnostic surgery, but doctor removed her uterus and ovaries on such consent. It is observed that it is unauthorised and unwarranted. Moreover the following observations are made in it.

The words “ such medical treatment as is considered necessary for me for……….” In the consent form cannot be construed as consent for surgical treatment by way of removal of uterus and ovaries.  The view that “ the informed choice of surgical procedures has to be left to therefore operating surgeon depending on his/her discretion, after assessing the damage to the internal organs, but subject to his/her exercising care and caution” proceeds on the erroneous assumption that where the surgeon has shown adequate care and caution in performing the surgery, the consent of the patient for removal of an organ is unnecessary”.

7.       On the other hand, Adv.Shri.I.K.Jadhav appearing for respondent No.1 & 2 supported the impugned judgment and order.  He submitted that patella of appellant was not in existence at the time of operation and respondent No.2 removed only pieces of the broken patella and therefore it cannot be said that there is any deficiency on the part of respondent No.1 & 2 in service provided by them to the appellant.

8.       Thus it is not disputed that appellant was admitted in the respondent No.1`s hospital for treatment and charges for the same were paid by her.  She was admitted in the respondent No.1`s hospital for the period from 12.2.2003 to 25.3.2003 and the appellant had pain in her left knee and she was unable to sit down with cross-legged and that respondent No.2 Dr.Shivkumar Santpure on examination of appellant advised her for surgery and she signed the letter of consent. The minute perusal of the said letter of consent shows that appellant had given consent for undergoing surgery called as quadricepsplasty only.  It is further stated in the said consent letter that the appellant also consented for such surgery or investigation whichever is found necessary concerning to quadricepsplasty. As per written version of respondent No.1 & 2, during the surgical operation only pieces of broken patella were removed.  However, respondent No.1 & 2 adduced no evidence to prove that actually there was existence of intact patella in the knee but the said patella was broken into pieces. On the contrary respondent No.2 while referring the appellant to Dr.K.S.Sancheti of Pune on 22.12.2004 stated in annexure attached to that letter that at age of 25 years appellant has undergone surgery of patellectomy and arthrotysis and still there was knee instability.   Report of S.P.Institute of Neuroscience shows that on examination of appellant it was found that there was no patella due to previous surgical excision. 

9.       In the absence of evidence on record showing that patella of left leg of complainant was broken into pieces during previous operation, we are not inclined to accept the same.  Even for the sake of argument  if it is so accepted, then also we find that express consent of appellant was necessary for removal of those pieces of patella as her consent was obtained only for doing surgery called as quadricepsplasty.  Medical text and authorities clearly spell out that the surgery for quadricepsplasty is totally different from surgery called as patellectomy.  Patellectomy is an operation which is undergone to remove shattered patella or excision of patella or surgical removal of patella.  Patella is pan-shaped anatomical formation. It is located in the combine tendon of the extensors of the leg and covering front surface of the knee joint.  It is also called as knee cap.

          Whereas quadriceps is termed which is referred to any fore-headed muscle. It usually referred to and with synonymous with the quadriceps muscle of the thigh, the large muscle that comes down the femur( the bone of the upper leg) goes over the patella ( the kneecap) and anchors into the top of the tibia( the big bone in the lower leg) The function of quadriceps is to extend ( to straighten out) the leg.  Quadricepsplasty is a corrective surgical procedure on the quadriceps femoris muscle and tendon to release adhesions and improve mobility, with the goal of improving the range of flexion of the knee.

10.     Thus surgery for quadricepsplasty is totally different from that of patelloctomy.  Hence under the garb of doing quadricepsplasty, the patellectomy cannot be done.  Moreover when the specific consent was given for quadricepsplasty, no organ such as patella or its broken pieces could have been removed without express consent of the appellant. It is also not the case of the respondents that alleged broken pieces of the patella were removed without consent as delay would have caused imminent danger to life or health of appellant/complainant. In this case it is irrelevant question as to whether respondents removed patella or its broken pieces by proper operations.  But question is failure of respondents to obtain consent of complainant/appellant to remove her patella or broken pieces of patella, as the case may be.

11.     Thus we find that ratio of aforesaid case law is applicable to the facts and circumstances of the present case. Hence we hold that as respondent No.1 & 2 have removed patella from left knee of the appellant without her express consent.  This is an unauthorised invasion and interference with her body.  Therefore  there is deficiency in service provided by respondents to the appellant. 

12.     Adv.Adkine also submitted that District Forum below has erroneously observed that complaint should have been filed within two years from the date 13.2.2003 on which surgical operation was performed on appellant and not from the date 7.3.2005 on which Dr.Milind Joshi examined the appellant and appellant learnt about wrong surgical operation. He argued that since appellant was not aware of her removal of patella by respondent No.2, there was no question of filing of complaint by her and that she for the first time learnt about patellectomy done on her when on 7.3.2005 Dr.Milind Joshi of Solapur examined her and told her that her patella has been removed. He therefore  contended that complaint is filed within two years after getting said knowledge by the appellant and hence it is not time barred.

13.     On the other hand, Adv.I.K.Jadhav for respondents submitted that Dist.Forum below has rightly observed that complaint is time barred as complainant was discharged on 25.2.2003 and complaint came to be filed on 27.6.2006 i.e. after period of two years from 25.2.2003.  

14.     We have found that  the appellant had given consent for quadricepsplasty only and medical papers of the hospital of respondent No.1`s hospital do not show that her patella was removed.  It cannot be therefore  presumed that appellant had knowledge about the patellactomy before she was examined by Dr.Milind Joshi on 7.3.2005 and gave her that information. Therefore  we hold that appellant got knowledge about removal of her patellectomy for the first time on 7.3.2005 only.  Complaint which is filed on 27.6.2006 is therefore  not barred by limitation as it is filed within two years from 7.3.2005. 

15.     We thus find that Dist.Forum below has not considered in right prospectives the above discussed material of the present case which has resulted into erroneous judgment and order. Hence we find the same needs interference and needs to be set aside in this appeal. 

16.     We now proceed to consider the quantum of compensation to be paid by respondent No.1 & 2 to the appellant.  Therefore  mitigating circumstances so far as quantum of compensation is concerned.  Respondent No.2 did patelloctomy as her found it necessary in the interest of appellant.  It is not disputed that since appellant had some deformity in her left leg and she had undergone operation to remove that deformity when she was aged about 3 years and thereafter she had also undergone operation in hospital of Dr.Milind Choudhary, Akola when she was aged about 15 years.  Still her said deformity was not removed. Moreover, we have found that patella of the right knee of the appellant was removed without her consent by respondent No.1 & 2. Therefore her deformity was also increased.  She produced permanent disability certificate dated 24.10.2005 showing her permanent disability to the extent of 55%.  It is observed in that certificate that it is case of congenital deformity of left hip and knee and operated many times and at present having flail left hip knee and ankle with 4cm of shortening.

17.     Considering the age of appellant as 25 years and considering nature of deficiency as observed above and considering deformity caused to the appellant due to said deficiency and aforesaid facts and circumstances, we hold that she is entitled to compensation of Rs.1 lakh from respondent No.1 & 2.  Moreover she is also entitled to Rs.10,000/- towards mental harassment and Rs.5000/- towards cost of the complaint from respondent No.1 & 2.  Hence appeal deserves to be partly allowed. As a result thereof following order is passed.

                                                O   R    D    E    R

1.     Appeal is partly allowed.

2.     The judgment and order dated 20.2.2008 passed by District Forum, Aurangabad in C.C.No.280/06 is hereby set aside.

3.     Complaint is partly allowed.

4.     Respondent No.1 & 2 jointly and severally do to pay to the appellant i.e. original complainant compensation of Rs.1,00,000/- within one month on receiving copy of judgment and order.  In case of default the said compensation shall carry interest @ 9% p.a. from the date of this order till realisation.

5.     Respondent No.1 & 2 also do pay jointly and severally to appellant an amount of Rs.10,000/- towards mental harassment and Rs.5000/- towards cost of complaint.

6.     Pronounced and dictated in the open court.

7.     Copies of the judgment and order be issued to both the parties.

Pronounced on 29.10.2012.