STATE CONSUMER DISPUTE REDRESSAL COMMISSION

BIHAR, PATNA

Appeal No. 437 of 2018

Dr. Krishna Bhushan Nath, Clinic Das Pokhar Sahebganj, Post- Karnaul, P.S- Sahabganj, District—Muzaffarpur

                                                                                                                        …..             Opposite Party-Appellant

Versus

Keshaw Pandey, S/O- Late Asharfi Pandey, R/O, Village- Rajwara, Post- Rajwara, P.S- Sahebganj, District- Muzaffarpur.                                                                                                                                    ……            Complainant-Respondent

Before,

       Hon’ble Mr. Justice Sanjay Kumar, President

Mr. Ram Pravesh Das, Member

Dated 07.02.2023

O r d e r

Sanjay Kumar,J: President

Present appeal has been filed on behalf of appellant-opposite party for setting aside the judgment and order dated 06.01.2014 passed by learned District Consumer Disputes Redressal Forum, Muzaffarpur in Consumer complaint case no. 123 of 2010 whereby and whereunder the learned District Forum has directed appellant to Pay compensation of Rs. 77,500/- for medical and other expenses incurred by complainant and Rs. 10,000/- as compensation for mental and physical harassment and Rs. 5,000/- as cost of litigation within 30 days from the date of receipt of order passed by the District Forum failing which interest @ 10% p.a shall become payable.

Briefly stated the facts of the case is that complainant got himself examined after making payment of consultation fee of Rs. 50 to the appellant/opposite party as his health condition started deteriorating and appellant/opposite party advised for operation of hydrocele. On advise of appellant/opposite party, complainant got his blood sugar tested in the adjacent diagnosis center and as per blood sugar report he had high blood sugar level i.e 410.

The opposite party performed operation of hydrocele on same day i.e 4.08.2010 inspite of high blood sugar. Soon thereafter, complainant developed high fever and after consultation from opposite party he was asked to get his blood sugar tested again but his condition went on deteriorating and showed no recovery then his relatives hired vehicle and send him to Muzaffarpur Hospital in the Nursing Home of Dr. H.N Bharatduar where he was again operated and he was told by the operating surgeon that Hydrocele was infected.

Complainant had to spent Rs. 67,500/- as medical an other expenses and approached the District Consumer Forum Muzaffarpur for payment of compensation for deficiency in service and medical negligence of opposite party.

On notice opposite party appeared and filed his written statement stating therein that no expert opinion or medical prescription was placed by complainant to show any medical negligence or deficiency in service on the part of the opposite party. It was further stated that Hydrocele operation was conducted after controlling the sugar level. Complainant was suffering from serious pain and he was pressurized for immediate operation. After giving medicine to control blood sugar operation was performed and complainant was advised to report after 15 days and complainant thereafter came on 25.08.2010 with blood sugar report and at that time blood sugar report was normal and after prescribing medicine complainant was asked to report for follow up checkup after one month but thereafter he never reported.

In support of his complaint case complainant filed his evidence in affidavit and also placed two Pathological reports of blood sugar.

Expert opinion was called for by the District Consumer Forum and same was submitted in which it was stated that it takes much time for healing of wound of diabetic patient, however, as medical prescription of operation was not available as such no opinion can be expressed with respect to negligence. Blood sugar report shows high sugar level.

The District Consumer Forum held that on the basis of evidence and material placed on record as well as admission of appellant that operation was performed by the opposite party of complainant when he had high blood sugar level which shows deficiency in service and medical negligence by opposite party. The Forum has further observed that in case of high blood sugar the operation is under taken only after blood sugar is controlled by help of medicine and allowed the complaint case of complainant.

Aggrieved by judgment and order dated 06.01.2014 in Complaint Case No. 123 of 2010 passed by District Consumer Forum, Muzaffarpur allowing the complaint case opposite party has preferred this appeal before the State Commission.

It is submitted on behalf of counsel for the appellant that there is neither any deficiency in service nor any medical negligence committed by appellant. No medical prescription was filed by the appellant which could be basis of complaint case and in absence of which no finding of negligence could have been recorded by the District Forum. Expert opinion does not states any deficiency in service by the appellant.

The operation was performed on 25.08.2010 when blood sugar level was under control and complainant did not follow the post operative instructions as such complainant got infected. None of the doctors who subsequently treated the complainant stated that operation done by appellant was defective.

Heard the parties.

Every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. Breach of expected duty of care from the doctor amounts to negligence. If a doctor does not adopt proper procedure in treating his patient and does not exhibit reasonable skill it amounts to medical negligence. The appellant performed the operation which in given facts and circumstances no medical professional would have undertaken.

It is well settled law that a doctor may be held liable for negligence even if he is possessed of requisite skill but he did not exercise it with reasonable competence and skill. The standard to be applied would be that of an ordinary person exercising skill in said profession. A doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible medical body skilled in that particular field. To establish liability it must be shown:- (i) That there is a usual and normal practice (ii) That the doctor has not adopted it (iii) The course adopted is one which no professional man of ordinary skill would have under taken.

In present case the District Consumer Forum has held that on basis of material placed before the forum and on admission of appellant that the operation of hydrocele was performed under pressure of complainant when blood sugar of complainant was high itself shows unprofessional approach of opposite party. Even a layman knows that no operation should be undertaken when blood sugar is high and operation is to be performed only after blood sugar is under control. Operation performed by appellant is breach of undertaking and professional misconduct of Doctor which is deficiency in service and medical negligence.

In two case Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128 and A.S. Mittal vs. State of U.P., AIR 1989 SC 1570, The Hon’ble Supreme Court laid down details about  duties of the doctor. The doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; (c) a duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor.

  For the reasons as stated above this court is not inclined to interfere in the order passed by the District Consumer Forum and accordingly this appeal is dismissed.

 (Ram Pravesh Das)                                             (Sanjay Kumar,J)

    Member                                                                President