The appellant Virendra Singh, an agriculturist from Haryana, has filed this appeal against dismissal of his complaint by the Rajasthan State Consumer Disputes Redressal Commission in consumer complaint number 26/2003. In the complaint before the State Commission, a compensation of Rs. 25 lacs was claimed on account of alleged medical negligence and deficiency in service on the part of opposite parties namely, National Institute of Medical sciences, Dr Balveer Singh Tomer and Mrs Shobha Tomer, in the treatment of Mrs Nirmala Devi, wife of the complainant. 2. The State Commission, going by the respective pleas, evidence and material brought on record came to a conclusion that the complainant had failed to establish any medical negligence or deficiency in the treatment of the patient. During the course of the hearing on 20.2.2010, it was argued by the learned counsel for the appellant that the finding of the State Commission is not based on correct and proper appreciation of the evidence and material on record. This being a case of alleged medical negligence and deficiency in the treatment of the patient, the Commission should have referred the question to medical experts in order to reach a definite finding as to whether the treatment given to the patient was, or was not, in accordance with the prescribed medical protocol or was there any deficiency in service in giving the treatment. Therefore, with the consent of the two counsels, the matter was referred to the All India Institute of Medical Sciences, New Delhi (AIIMS), with a request to constitute a medical board comprising senior doctors from the disciplines of orthopaedics, neurosurgery and radiology to give its opinion based on the record submitted to it. After this report was received, on 21.5.2010, Ms. Meenakshi Midha was appointed as amicus curiae to assess the complainant. On the request of 30.11.2010 from the Amicus, a fresh reference was made to the All India Institute of Medical Sciences with reference to the records of treatment of the wife of the complainant at SMSMedicalCollege and Hospital, Jaipur, where she was treated subsequent to the treatment received by her at the respondent Institute. 3. Before the State Commission, the case of the complainant was that his wife, Mrs. Nirmala Devi was suffering from some problem in her spinal cord. She was examined in the AIIMS, New Delhi and was advised surgery. It was performed in the National Institute of Medical Sciences, Jaipur (Respondent-1). According to the complainant, he was assured that the surgery will be performed by a neuro surgeon (Dr Hemant Bharti) but was actually performed by an orthopaedic surgeon, (Dr Anand Sharma). This, it is alleged, was an act of unfair trade practice, on the part of the respondents. After this surgery, the condition of his wife deteriorated. She lost sensation in the lower part of her body and became nearly totally bed ridden. He therefore, shifted her to SMSHospital, Jaipur. 4. The State Commission noted that two months before this surgery, there was a MRI report from DelhiMR & CTCenter, New Delhi which showed that it was a case of – a. advanced degenerative changes in the lumber spine with b. large posterocentral subligamentus extrusion L 4/5 disc causing thecal sac and cauda equine nerve root compression. c. Small central protrusion L5 / S1 disc. 5. She was admitted on 23.10.2002 in the Respondent/OP hospital, was operated upon on 25.10.2002 and was discharged on 3.11.2002. The patient was again admitted on 9.11.2002 and discharged on 19.11.2002. The State Commission has also noted that two days before her discharge, the patient was advised on 17.12.2002 that opinion of neuro surgeon, Dr Bharti should be obtained. She was once again admitted 15.12.2002 and discharged on 28.12.2002. 6. The State Commission has noted that the letter of 25.10.2002, pertaining to the consent for the surgery, clearly reveals that it was to be conducted by Dr Arvind Sharma and Dr Sudhir Khurana and that the consent was given by the complainant himself in writing by putting his signature in English. The contention of the complainant that he was given to understand that the surgery would be performed by Dr Bharti, has been rejected by the State Commission “for want of cogent and reliable evidence”. 7. Going into the question whether there was medical negligence on the part of the hospital of the opposite party, the State Commission has noted that there is no dispute about the nature of the ailment, which is evident from the MRI report, referred to above. The contention of the opposite party, that the disease came under the purview of orthopaedic surgery and therefore it was rightly performed by Dr Anand Sharma, who was an orthopaedic surgeon, has apparently been accepted by the State Commission. From the impugned order it is evident that the finding of no-medical-negligence reached by the State Commission, is based on the following – a. “The disease known as Cauda Equina Syndrome is a disease which could be cured or treated or operated by both an orthopaedic surgeon as well as by a neuro surgeon. b. To say that the surgery can only be performed by a neuro surgeon cannot be accepted. c. The surgery was performed by Dr Anand Sharma, an orthpaedic surgeon. d. It is not the case of the complainant that Dr Sharma was not qualified to perform such an operation. e. If the treating orthopaedic surgeon feels that neurological examination should be done before operation of such disease, he may do so. But, if he does not think so, before operating, it cannot be said that he is guilty of professional or medical negligence. f. In this case, as the condition of the patient was not improving, Dr Anand Sharma did advise on 17.12.2002 that her case should be examined by the neuro surgeon, Dr Bharti.” 8. In the appeal before us, the only substantive ground raised against the impugned order, is that the complainant’s wife was suffering from Cauda Equina syndrome which, according to the appellant, “could only be treated and operated by a neuro surgeon and not by an orthopaedic surgeon.” We have already noted that this was the back ground in which the opinion of AIIMs, New Delhi was sought by this Commission. Therefore, before we go into the arguments of the counsels for the appellant and the respondents, we need to examine the opinion of experts from the AIIMS, New Delhi. 9. With reference to the communication of 23.2.2010 from the National Commission, the Medical Superintendent constituted a four member board of doctors to examine the reference. This included experts from departments of orthopaedics, neurosurgery radio-diagnosis and Hospital administration. The board met on 26.3.2010 and again on 30.3.2010. We have perused their report of 16.4.2010. From the MRI report of 27.8.2002, the board has confirmed that it was a case of degenerative spondylotic changes. L3 -4, L4 -5 and L5- S1 disks were found to be dessicated and narrowed. At L4-5 level there was "severe compression of the cal sac and cauda equina nerve roots". From the post operative report of December 2002, the board has observed that “There is evidence of right-sided laminectomy at L5 level and post operative changes are seen at L4 - L5 level. Compared with MRI dated 27.8.2002, there is no significant change in the size of the extruded disk at L4-L5 level.” 10. The expert board has expressed its opinion in the following terms:- “In view of the above findings, and careful evaluation of the documents provided by the Hon’ble National Commission, the committee members were of the opinion that it is not possible to establish negligence in the said case due to the following reasons: 1. There is a long delay between the two MRI examinations making it difficult to differentiate whether it is a case of wrong level surgery (i.e. the disc was not removed) or a recurrent disc prolapsed which is a known phenomenon. 2. Also, the repeat MRI has been done without contrast which could have differentiated between the residual or recurrent prolapsed disc and the postoperative scar. 3. The perusal of the operation notes and the presence of post operative changes at the appropriate level suggest that the exploration was done at the correct level. 4. The delay in the second examination and the progress notes during the first hospitalization suggest that there might have been initial recovery after surgery. 5. The patient had features suggestive of Cauda Equina syndrome which is a serious condition and the neurological improvement may not occur even if adequate decompression of the offending disc is carried out. This fact is further substantiated by the repeat decompression at the L4-5 level which failed to relieve the patient. 6. The perusal of the records showed that the patient was advised surgery in August 2002 but underwent surgery in October 2002. In the setting of Cauda Equina Syndrome this may compromise or delay the chances of recovery.” 11. As already pointed out, a second reference was made to the AIIMS, New Delhi on 14.12.2010, along with record of treatment at Sawai Mansing Hosptal, Jaipur after final discharge from the Respondent hospital i.e. from 31.12.2002 to 31.4.2003. The All India Institute of Medical Sciences, New Delhi have replied on 24.12.2010 stating that “the medical board was of the opinion that both the Orthpaedics Surgeon and the Neuro Surgeon are competent to perform the envisaged surgery.” 12. Despite the opinion of the AIIMS detailed above, learned counsel for the appellant argued before us that in the opinion of the AIIMS, the surgery was required to be done by a neuro surgeon only. We do not agree with him that such a meaning can be read into the document pointed out by him. He has drawn our attention to the entry of 29.8.2002 in the OPD ticket of the Cardiothorasic & Neuroscience Department of AIIMS which reads “Adv:- Neurosurg consultant”. In our view, it is open to only one interpretation i.e. consultation with a neurosurgeon is advised. 13. Learned counsel for the respondent has drawn our attention to the order of the Medical Council of Rajasthan dated 28.8.2006, passed in a complaint of medical negligence filed by the present complainant against the respondents. This order is based on the opinion of Dr PPS Mathur, Professor of Neurosurgery, who had examined the record of treatment of the complainant’s wife and discussed with the doctors concerned with her treatment surgery. The Medical Council came to a conclusion that “there seems no negligency in the treatment and operation of Smt. Nirmala Devi.” The finding of the Medical Council of Rajasthan is significantly similar to the opinion expressed by the AIIMS, New Delhi. 14. The examination above leads us to the following conclusions:– i. “the State Commission was right in concluding that the complainant had failed to establish that there was any medical negligence in the treatment provided by the respondents. ii. the complainant has equally failed to produce any conclusive material or evidence before this Commission in support of the main ground for appeal viz. that this surgery could have been performed only by a neuro surgeon. iii. the opinion of the independent expert (All India Institute of Medical Science, New Delhi), sought at the express request of the appellant/Complainant, leaves no room for doubt that, in this case, the surgery could be performed either by an orthopaedic surgeon or by a neuro surgeon. Therefore, the fact that it was actually performed by an orthpaedic surgeon does not per se constitutes medical negligence.” Consequently, the appeal fails for want of merit and is dismissed. In the circumstances of the case, there are no orders as to costs. | 
