B G Ningappacomplainant vs MADAN

THE complainant has filed this complaint seeking for compensation of Rs. 8,88,600 from the opposite parties (for short, "OPs").

THE facts in this case are as follows: In the month of November 2000, the complainant approached one Dr. Venkatesh of Srirama Hospital with a complaint of right knee pain. The said Doctor on examination advised the complainant to take complete bed rest for a period of one week. After the bed rest, the complainant became hale and healthy and there was no pain on the right knee. But, again on 25.12.2000 while the complainant was returning to his house he suffered with a severe pain on his right knee and was not able to fold or stretch his leg. This has made the complainant to approach an Orthopedic Surgeon by name Dr. Amarnath. The said Doctor advised the complainant to approach Ulsoor Lake Hospital and also advised him to undergo a minor operation. Accordingly, the complainant approached the Ulsoor Lake Hospital but as the concerned Doctor was not available he was advised to go to Kempegowda Hospital. According to the complainant, as there was no response in Kempegowda Hospital, he approached OP -2 Hospital. In OP -2 Hospital, OP -1, i.e., Dr. Madan, Orthopedic Surgeon suggested the complainant to get an X -ray of right knee. Accordingly, the complainant got an X -ray and handed over the same to OP -1. OP -1 after looking at the X -ray suggested the complainant to go for operation. Accordingly, OP -1 operated on the right knee of the complainant on 6.1.2001. Even after that operation, as the complainant could not get any relief, he again approached OP -2 Hospital and contacted OP -1. OP -1 suggested for a second operation for removal of rod and, accordingly, he conducted second operation and told the complainant that the pain will be cured within two or three months. According to the complainant, even after the second operation, he could not get any relief and, therefore, he has filed this complaint alleging negligence against OP -1 claiming compensation of Rs. 8,88,600. Ops 1 and 2 have filed their version denying the averments of the complainant insofar as the negligence is concerned. In the version it is stated that OP -1 Doctor had examined the complainant in detail with due care and attention. The complainant had short stature, was poorly nourished and had general features of Multiple Epiphyseal Dysplasia - a hereditary developmental disease - due to abnormal growth of ends of long bones and several members in the family are affected. It is further stated that the complainants knee was kept stiff at 60 degree with inability to strengthen - locked knee. These facts were discussed by OP -1 with the relatives of the complainant. Thereafter, OP -1 explained the need for opening the joint in surgical procedure under anesthesia to excise the smaller fragments, to fix the larger fragments mentioned along with the need for plaster of paris application and secondary procedures. Thereafter, after obtaining the consent of the complainant, OP -1 conducted the surgery as per the mode referred to at para 8(a) of the version. It is further stated in the version that the stability and fixation was checked on the operating table and found to be satisfactory. However, in the post -operative days, according to the Ops, the complainant was highly un -cooperative and had walked out of the bed on several occasions against the advice. This was also explained in detail to the relatives of the complainant. Check X -ray taken on 12.1.2001 revealed satisfactory fixation along with the K -wires. The further averment in the version is that the complainant continued to be un -cooperative which resulted in displacement, construction of loose body and clear gap. The osteochondral loose body was found to be black discoloured shrunken, un -united and hence removed along with K -wires. It is further stated that even the second opinion obtained by the complainant from Dr. K. Srinivasan was also of the same opinion regarding diagnosis and steps of treatment. It is stated in the version that OP -1 has given proper treatment and has done proper surgery to the complainant. But in spite of giving proper treatment, if the complainant could not get the estimated relief, it cannot be said that the Doctors are responsible, as Doctors can only guarantee or assure care and never guarantee or assure cure. The sum and substance of the defence of the Ops is that there is no negligence on the part of the Ops in the matter of procedure and treatment and, therefore, they are not liable to pay any compensation to the complainant.

THE complainant and OP -1 have filed their Affidavits by way of evidence and they were subject to cross -examination. The OPs have produced the records maintained by the Hospital, which were marked as exhibits. The complainant has produced some documents along with the X -rays, which were also marked as exhibits.

ON the basis of the above pleadings, the points that arise for consideration in this case are: (1) Whether the complainant proves negligence as against OP -1 as pleaded in the complaint? (2) To what relief the complainant is entitled? Point No. 1:

The Affidavits filed by the complainant and OP -1 are repetition of the averments made in the Complaint and Version. The learned Counsel appearing for the complainant submitted that if the disease of the complainant is hereditary, there was no need for OP -1 to advise to go for operation. Even OP -1 in his version has stated that the pain the complainant was suffering in his right leg is a hereditary one, as several members in his family are affected. The further case of the complainant is that Dr. Venkatesh of Srirama Hospital advised the complainant to take bed -rest and, accordingly, the complainant took bed rest and got the relief and, therefore, there was no need for OP -1 to advise the complainant to go for surgery. The complainant, no doubt, as per the averments made in the complaint, did get relief after taking bed -rest hardly for a period of 20 days. On 25.12.2000, when the complainant was on his way to his house he had a severe pain on his right knee and was not able to fold or stretch his leg. From this it is seen that the relief the complainant got after the advice of Dr. Venkatesh was only a temporary relief. If there was no pain or if he could fold or stretch his leg, there was no need for the complainant to go to any Doctor. The very fact that the complainant went to Dr. Amarnath and thereafter to other hospitals itself speaks of the fact that the complainant was suffering from severe pain in his right leg and he was unable to fold or stretch his right leg. OP -1 in his version has stated that after examining the complainant, in his judgment the complainant required surgery. Failure of any surgery does not mean that it is due to the negligence of the Doctor. A person who complaints of negligence is required to prove the said fact by adducing acceptable evidence. In the instant case, the complainant has not examined any expert to prove that the procedure adopted by OP -1 was not a procedure that could have been adopted or there was any negligence in the said procedure. Just because the disease was hereditary in nature it does not mean that no surgery was required. If at all if the complainant did not want any relief there was no need for him to go to any Doctor. OP -1 Doctor after explaining the pros and cons of the surgery has advised the complainant to go for surgery. Whether the surgery was required or not is a matter to be decided by the Doctor. If that is so, it is not proper for this Commission to substitute its opinion in place of the opinion of the Doctor.

O .P. 1 has been examined as R.W. 1. In his cross -examination he has denied the suggestion that the surgery was not essential to the patient. He has stated that it is very difficult to cure the disease of the patient. Just because it is very difficult to cure the disease, if it is hereditary, it does not mean that OP -1 has committed any wrong in operating the patient, as he is of the opinion that he could get some relief to the complainant by operation of his right leg. Every doctor tries to give relief to the patient when he is approached. Therefore, in the case on hand, OP 1 in his judgment thought that he could give relief to the patient by conducting the surgery. But, ultimately, if the surgery is failed it does not mean that there is any negligence on the part of the doctor. OP 1 has also stated that the development of complications after the operation was due to the fact that the complainant was not co -operative. In order to disprove this fact, the complainant has not adduced any evidence by examining any one of his relatives who were attending to him in the hospital.

THE learned Counsel appearing for the complainant submitted that certain documents produced by the hospital were cooked -up documents. After going through the records of the hospital, which are produced and marked as exhibits, we find that there is no substance in the said contention. The second operation was conducted by the doctor because of un -united loose body. In order to prove that the doctor was negligent while doing the second operation the complainant has not produced any expert evidence. The OPs in their version at paragraph 22 have stated as follows: ''Medical science has not reached a stage where the adoption of a particular treatment, medical or surgical, would necessarily produce a definite positive end result in all cases treated and the degree or relief after treatment would depend on a variety of factors such as type of disease, its different manifestations at different stages, its mortality and morbidity, individual response to treatment, patient compliance, type of available treatment, its limitations, the degree of damage done by the disease at the onset of treatment, etc., many of which are not under the direct control of the treating doctor.''

We are in full agreement with the said statement. Therefore, in the absence of any evidence adduced by the complainant in proof of his plea of negligence, we hold that the complainant has miserably failed to prove the plea of negligence as pleaded in the complaint. Accordingly, we answer point No. 1 in the negative.

POINT No. 2: Since the complainant has failed to prove the negligence as alleged, the complainant is not entitled for any relief.

IN the result, we pass the following order: (1) The complaint is dismissed. (2) Parties to bear their own costs. Complaint dismissed. -