This revision is directed against the order of the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, “the State Commission”) 16.5.2012 whereby the State Commission concurred with the finding of the District Forum, Sirsa allowing the complaint and dismissed the appeal preferred by the petitioner.

2.       Briefly stated, facts relevant for the disposal of the revision petition are that the respondent Roshni Devi visited the nursing home of the petitioner with the complaint of acute abdominal pain. The respondent was diagnosed as a case of appendicular lump and for that the petitioner admitted the respondent in her hospital and put her on conservative management treatment. The respondent was discharged after eight days. About three days later the complaint of pain reoccurred. Consequently, the complainant again approached the respondent at his nursing home on 21.5.2002. On this occasion the respondent after examination came to the conclusion that the problem of the respondent was acute and the complainant would have to undergo surgery. According to the complainant the respondent asked the family members of the complainant to arrange for Rs.1 Lakh. Thereafter, the complainant and her family members approached Dr. Azad Singh of Azad Surgical Hospital who after examination of the complainant suggested ultrasound. After receiving the report of ultrasound the complainant was diagnosed as patient of Appendicular Abscess for which she was admitted and operated upon. According to the complainant the petitioner was negligent in her treatment inasmuch as she delayed the surgery unnecessarily and put the complainant to undue pain and harassment as also the risk of life.

3.       The petitioner resisted the complaint. In the written statement she admitted that the complainant visited his hospital with pain in abdomen on 8.5.2002. On examination it was diagnosed as a case of appendicular lump for which standard procedure is conservative management which was resorted to by admitting the complainant in the hospital. The petitioner pleaded that the complainant was clearly told that conservative management would have to be abandoned if during the course of treatment some complication arises and in that situation the complainant may have to undergo surgery. It was also pleaded by the petitioner that complainant herself sought discharge from the hospital on 16.5.2002 and did not get proper treatment at home. According to the petitioner in case of appendicular lump the first course of treatment is the conservative management and no Doctor would advise surgery in the first instance.

4.       Learned District Forum on consideration of the pleadings of the parties and the evidence allowed the complaint and ordered thus: -

“….Hence, the complainant is entitled to compensation for harassment, mental tension humiliation etc. to the tune of Rs.1,25,000/- on these in lump sum. The complainant also complied to file huge amount on litigation charges, hence she/complainant also spent huge amount on litigation charges, hence she is entitled to cost of litigation to the tune of Rs.2200/-. We further direct the respondent doctor to make the payment of the award money i.e. Rs.1,25,000/- within a period of six weeks, failing which the complainant shall be entitled to recover the above said amount of compensation with interest @ 9% p.a. from the date of institution of the present complaint till its realization. We ordered accordingly.”

5.       Being aggrieved of the order of the District Forum, the petitioner preferred and appeal and the State Commission agreed with the finding of the District Forum and dismissed the appeal.

6.       Learned counsel for the petitioner has contended that both the Foras below have committed a grave error in appreciating the facts. Learned counsel contended that Dr. Azad Singh who ultimately conducted surgery on the complainant was examined as PW-2 and he has accepted in his cross examination that a patient diagnosed for appendicular lump is initially given conservative management treatment and sometimes the patient with appendicular pain gets relief by conservative management. Learned counsel has pointed out that Dr. Azad Singh in latter part of his cross examination stated that he is unable to tell whether there was any lapse of fault on the part of the Doctor who earlier treated the patient. It is contended that both the foras below have ignored the above noted testimony of Dr. Azad Singh as such their findings of fact cannot be sustained.

7.       Learned counsel for the respondent on the contrary has argued in support of the impugned order. It is contended that the revisional powers of the National Commission are limited to the extent of jurisdictional error or material irregularity. In the instant case both the foras below have returned concurrent finding of facts and there is no jurisdictional error. Therefore, the revision petition is liable to be dismissed. It is further contended that it is established on record that the petitioner was negligent in treatment of the complainant. By failing to go for immediately surgery he subjected the complainant to the risk of her life because had the appendix burst it would have resulted in life threatening complications.

8.       I have considered the rival contentions and perused the record. It is admitted case of the parties that the respondent/complainant was diagnosed for appendicular lump and despite that the petitioner instead of going for surgery resorted to conservative management treatment by admitting the complainant in the hospital. It is also undisputed that the complainant was discharged after 8 days on 16.5.2002 but she again developed abdominal pain two or three days later. Thereafter, the complainant again approached the petitioner who after examination suggested surgery but the complainant approached Dr. Azad Singh of Azad Surgical Hospital, Sirsa and got operated upon.

9.       The question for determination is whether or not the petitioner is guilty of medical negligence?

10.     In this regard testimony of PW-2 Dr. Azad Singh who admittedly conducted surgery on the complainant is relevant. Relevant portion of his cross examination is reproduced as under:

“ It is correct that whenever a patient is diagnosed for appendicular lump, such patient is initially given conservative management treatment. It is possible that whenever a patient with appendicular lump come to a doctor he straightway does not go for operation. Self stated medicine is not like an mathematic and it depends upon an attending doctor what treatment is to be given to the patient keeping in view overall conditions and requirement of the disease. It is correct that sometimes patient with appendicular pain gets relief by conservative management treatment. And in such eventuality the treatment is allowed to continue. It is correct that no operation can be conducted on a patient against his/her wishes. Patient and her attendant had told me that earlier she got treatment from another Doctor, namely, Dr. S.S. Gupta and at that time I have also gone through report of Dr. Jiwan Garg placed on file as Ex.C2. I did not know what treatment she was given before coming and as such I am unable to tell whether there was any laps or fault on the part of Doctor who earlier treated the patient.”

11.     On reading on the above, even as per Dr. Azad Singh the treating Doctor in every case is not required to opt for the surgery if in his opinion diagnosis of appendicular lump can be effectively treated by conservative management treatment. Dr. Azad Singh has not been able to confirm whether there was any infirmity or fault in the treatment given by the earlier doctor, namely, the petitioner. Under these circumstances, I find it difficult to hold that the petitioner while resorting to the conservative management treatment of appendicular lump of the petitioner has committed any medical negligence. Both the foras below have ignored the testimony of Dr. Azad Singh who is a qualified Doctor. Therefore, in my view the impugned orders suffer from material irregularity.

12.     Further, the petitioner has placed on record extract of Farquharson’s Textbook of Operative Surgery under the heading of Appendix Abscess or Mass which reads as under: -

“ The term ‘appendix abscess’ is applied in a wide sense to include any type of localizing appendicitis where a definite mass has formed in the region of the appendix.  This finding is most likely to be present in patients who come to examination 48 hours or longer after the onset of symptoms.  The mass is formed by the matting together of omentum and bowel round the inflamed appendix.  Unless the mass is situated in the pelvis it can usually be detected on ordinary abdominal palpation.

In most cases the appendix has perforated and a collection of pus is enclosed within the mass of adhesions.  If perforation has not occurred the term ‘abscess’ is strictly incorrect – the condition is rather one of localized plastic peritonitis.  In either case the presence of a mass is an indication that the infection is adequately circumscribed and walled-off from the general peritoneal cavity.  The initial treatment in such cases should always be conservative, since removal of the appendix entails the risk of damaging the inflamed and friable bowel in the vicinity and of spreading infection to the general peritoneal cavity. The mortality of cases treated conservatively has been much lower than that of cases subject to immediate operation, although the latter has been greatly improved by broad spectrum antibiotics.

Conservative treatment

This, as first described by Ochsner and Sherren is advised for all cases of acute appendicitis where operation, for one reason or another is withheld.  It may be employed, therefore, both in the early case when the attack appears to be subsiding or conditions are unfavourable for operation and in the late case where it is believed that the infection is being successfully localized.”

13.     On reading of the above, it is clear that immediate surgery in every case of appendix abscess is not necessary. The treating Doctor can resort to the conservative management treatment depending upon the condition of the patient. In the instant case the petitioner has resorted to the conservative management treatment based on diagnosis and there is nothing on the record which may suggest that the condition of the patient at the relevant time was such that the surgery was the only option. In absence of any such evidence it cannot be said that the petitioner is guilty of medical negligence.

14.     In view of the discussion above, revision petition is allowed, orders of the Foras below are set aside and the complaint is dismissed.