BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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1]      Chamkaur Singh s/o Harbans Singh, resident of H.No. 23, Block A, Commando Complex, Phase-XI, SAS Nagar (Mohali).

2]      Harbans Singh s/o Mehar Singh, resident of Near Mal Godown, Chungi, Sikh Mohalla Giddarbaha, District Muktsar, Punjab, now residing at House No. 23, Block A, Commando Complex, Phase-XI, SAS Nagar (Mohali).

…..Complainants

                                      V E R S U S

1]      Post Graduate Institute of Medical Sciences (PGI), Sector 12, Chandigarh, through its Director.

2]      Prof. Gurpreet Singh (Doctor), Department of Surgery, Service Unit, Room No. 4060, New OPD Complex, PGI, Chandigarh.

                                                ……Opposite Parties

CORAM:     SH.P.D.GOEL                                              PRESIDENT

                   SH.RAJINDER SINGH GILL                        MEMBER

                   DR.(MRS).MADANJIT KAUR SAHOTA      MEMBER

Argued by:    Sh. Harmandeep Singh Saini, Counsel for Complainants.

                        Sh. Hitesh Pandit, Counsel for OPs alongwith OP No.2.

PER P.D.GOEL,PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant No.2 was having a problem of Parotid Gland and there  was a swelling on his   right  side   of  the  Parotid

Gland since many years. He got himself checked from the OPs and was diagnosed with the medical problem of Pleomorphic Ademont (Right Parotid Gland). It was recommended by the OPs that a simple operation - surgery was to be conducted upon Complainant No.2 and for that purpose Complainant No.1 got his father Complainant No.2 admitted in the PGI on 28.4.2010. The complainant No.2 had undergone surgery on 12.5.2010 by team of doctors headed by OP No.2.

2.                It is the allegation of the complainants that during the surgery, due to the negligence of OP No.2, the Facial Nerve of the Complainant No.2 was cut by OP No.2 and his team, due to which, his face has been totally distorted and its shape has been destroyed. He cannot even look straight and is loosing his eye sight day by day. Hence, this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

3.                OPs in their joint written statement, while admitting the factual matrix of the case, pleaded that Complainant No. 2 was having the swelling for more than 30 years. Upon check-up, diagnosis of Pleomorphic Adenoma (benign tumor of parotid gland) was made. The Complainant No. 2 was advised surgery after explaining all the risks involved in it including the possibility of Facial Nerve injury. He was admitted to PGI on 28.4.2010 and was operated on 12.5.2010. It is further replied that the treatment carried out upon the person of the complainant was of standard procedure to cure his disease. During the course of surgery, it was observed that the parotid tumor was engulfing branches of the facial nerve and these were intentionally cut so that the tumor could be removed completely. Trying to preserve the branches of the nerve would have resulted in incomplete removal of the tumor and subsequent recurrence of the tumor. It was also pleaded that there was no negligence and it was only a conscious and well understood decision taken by the operating surgeon in the best interest of the patient. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

4.                Parties led evidence in support of their contentions.

5.                We have heard the learned counsel for the parties and have also perused the record.

6.                The admitted facts many be noticed thus ;

a)                          That the complainant No.2 was admitted in PGI on 28.4.2010.

b)                          The operation upon the complainant No.2 was conducted on 12.5.2010.

7.                The learned Counsel for the complainants argued that during the surgery, due to the medical negligence of OP No.2, the facial nerve of the complainant No.2 was cut by OP No.2 and his team and due to which, the face of complainant No.2 has been totally distorted and its shape has been destroyed and even he cannot look straight and is loosing his eye sight day by day. To counter the arguments of the learned Counsel for the complainants, the learned Counsel for the OPs raised the arguments that complainant No.2 was advised surgery to cure his problem and prior to that, all the risks involved in the surgery including the possibility of facial nerve injury was explained to him. It was also argued that the standard procedure recognized by medical science was adopted. It was only during the course of surgery, it was observed that the parotid tumor was engulfing branches of the facial nerve, so those were intentionally cut with a view that the tumor could be removed completely. It was further argued that the attempt to preserve the branches of the nerve would have resulted in incomplete removal of the tumor and recurrence of the tumor also.

8.                Now, the only point for consideration is whether OP No.2, while carrying out the surgery had adopted the standard procedure to cure the disease. It is also to be seen whether the parotid tumor was engulfing branches of the facial nerve and these were intentionally cut so that tumor could be removed completely. Secondly, whether the attempt to preserve the branches of the nerve would have resulted in incomplete removal of the tumor and subsequent recurrence of the tumor.

9.       It has been held by the Hon’ble State Consumer Disputes Redressal  Commission: Punjab: Chandigarh in case, Bimla Devi versus Doctor Davinder Kaur and Another, 1999(1) CPC 455 that where no expert is produced to prove the assertion of complainant-negligence, the mere affidavit of the complainant is not sufficient to prove the negligence. Likewise, the Hon’ble Supreme Court in re case Yacob Metheiv vs. State of Punjab and another, 2005(2) CPC 515 SC has held that a professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field, therefore, the standard is that of the reasonable average.

10.              It follows that a practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art. To establish medical negligence, it must be shown, (1) that there is a usual and normal practice (2) that the doctor has not adopted it and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken, had he been acted with ordinary care. Reliance placed on Dr. Sushil Tripathi and another vs. Ghanshyam Khatik, 2006(2)CPC214(NC).

11.              The Hon’ble Supreme Court in re-case Indian Medical Association vs. V.P. Shantha and others, 1995(6) SCC 651, wherein Bolam’s case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Mathew vs. State of Punjab and another, 2005 SCC (Cri.) 1369, wherein it has been held that the negligence has to be established and cannot be presumed, merely because a medical procedure fails it cannot be stated that medical practitioner is guilty of negligence, unless it is proved that he did not act with sufficient care and skill and in absence of any proof of negligence on the part of doctor, the compensation cannot be granted.

12.              Now, it is clear that the negligence has to be pleaded and established and cannot be presumed. It is not the case of the complainants that the doctor of OP No.1 who attended the complainant No.2 due to the negligence, cut the facial nerve, due to which, his face has been distorted. It is also not the case of the complainants that OP No.2 has not possessed of the requisite qualifications to treat complainant No.2. More so, the complainants have not produced any expert witness to prove that the treatment given to the complainant No.2 was inadequate or was not proper. It is also not the case of the complainants that procedure adopted by the doctor of OP No.1 in treating the complainant No.2 was not recognized one.

13.              The OPs have raised the specific defence that during the course of surgery, it was observed that the parotid tumor was engulfing branches of the facial nerve, so these were intentionally cut to remove the tumor completely. Otherwise, it would have resulted in incomplete removal of the tumor and also subsequent recurrence of the tumor. To substantiate the said plea, the learned Counsel for the OPs made a reference to Annexure-4 – Consent for Surgery and its careful perusal makes it clear that the attendant of complainant No.2 was explained about the disease, which the patient was suffering from and the need for surgery. He was also explained about the surgical procedure planned and also the risks involved in not undergoing the surgery and also the risks/complications that may be associated with the surgery. He was also explained about the risks/complications which may occur with the surgery, which include

1.           x x x x x

2.           x x x x x

3.           Post operative facial nerve injury.

So much so, he was also told that during the course of surgery, unforeseen conditions may necessitated different procedures other than those explained to him. The consent was given to perform some other procedures that are in exercise of the surgeon’s judgment necessary and desirable.

14.              Now, it is proved on record that the attendant of the complainant No.2 was explained about the risks/complications that may occur to the patient which includes post operative facial nerve injury. Therefore, the allegation of the complainants that during the surgery, the facial nerve of the complainant No.2 was cut by OP No.2 goes to ground as it does not hold any water.

15.              The matter does not rest here. The OP No.2 has also filed his affidavit, stating therein that during the course of surgery, it was observed that the parotid tumor was engulfing branches of the facial nerve, so these were intentionally cut so the tumor could be removed completely. Otherwise, it would have resulted in incomplete removal of tumor and subsequent recurrence of the tumor. The complainants have not produced any medical evidence or evidence of any expert to controvert and rebut the said averments made in the affidavit of OP No.2 and also to counter the defence raised by the OPs.

16.              The defence raised by the OPs that the facial nerve had been intentionally cut to remove the tumor completely and also to avoid subsequent recurrence of the tumor also goes unrebutted and uncontroverted, as no expert evidence has been filed to dislodge the said defence. Therefore, it is concluded without any hesitation that the facial nerve of complainant No.2 was intentionally cut in the welfare of the patient and not negligently, rather intentionally as pleaded by the OPs vide para No.5 of the reply, on merits.

17.              There is no expert evidence to prove negligence on the part of treating doctors of OP.  The self serving affidavit of the complainant No.1 is not sufficient to prove the medical negligence of the OP. Reliance placed on 2004(2) CLT 68, Ashok Kumar Choudhary vs. Shashi Bhushan Singh and 2009 (1) CPR 496, Shri Andip Vinayak Aher versus Dr. Rukhmini Manohar Karad (Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai).

18.              The burden of proving the medical negligence by way of expert evidence is always upon the complainants and in the absence of such evidence, the doctor cannot be held guilty as the negligence has to be established and it cannot be presumed. In the instance case, the complainants have failed to produce any expert evidence to prove medical negligence on the part of OPs. Reliance placed on V.Kishan Rao Vs. Nikhil Super Specialty Hospital and another, 2010 CTJ-868 (SC).  Thus, OP cannot be held liable for rendering alleged deficient services.

19.              As a result of the above discussion, it is held that there is no deficiency or medical negligence on the part of the OPs, therefore, the complaint is ordered to be dismissed, with no order as to costs.

20.              The certified copies of this order be sent to the parties free of charge. The file be consigned.