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Judgment
The Petitioner/OP-1 has filed the present Revision Petition under Section 21 of the Consumer Protection Act against the order passed by the Delhi State Consumer Disputes Redressal Commission, (in short, ''State Commission'') Delhi in FA No. 463/2006 whereby the State Commission dismissed the Appeal of the Petitioner against the order passed by the District Consumer Disputes Redressal Forum, (in short, ''District Forum''), East Delhi and held the Petitioner entirely responsible to pay the compensation to the Complainant and exonerated the OP-2, who had actually conducted the surgery.
The brief facts: The Complainant, Ms. Neetu Tyagi, approached Dr. S. K. Gupta, the Petitioner/OP-1 (since deceased,) for treatment of scars on her face, who referred her to Dr. J. L. Gupta, the OP-2, for plastic surgery. The OP-1 provided only infrastructure, like operation theatre and other facilities at his nursing home. On 18.05.2005, the OP-2 performed plastic surgery. The Complainant alleged that the plastic surgery done by OP-2 was not successful and scars increased leading to disfigurement of her face. It was negligence and deficiency in service by the OPs leading to physical and mental agony. Hence, the Complainant filed a complaint before the District Forum and prayed for a compensation of Rs.14,00,000/-.
The District Forum allowed the Complaint and directed the OPs to pay a sum of Rs.33,000/-, the charges which both the OPs received on account of operation, plastic surgery or scars revision surgery from the Complainant, to pay compensation of Rs.50,000/- and a sum of Rs.5,000/- as costs of litigation.
Subsequently, a First Appeal was filed by both the OPs before the State Commission, Delhi. The FA No. 456/06 filed by Dr. J. L. Gupta was allowed which exonerated OP-2 and the FA/463/2006 was dismissed and held OP-1 Dr. S. K. Gupta liable for a lump sum compensation of Rs.50,000/-. Hence, aggrieved by the order, the Petitioner/OP-1 filed this Revision Petition.
The Counsel for the Petitioner submitted that, during pendency of this case, the OP-1 passed away and his LRs, the wife of OP-1, was brought on record. The counsel further argued that there was no negligence alleged in the complaint against OP-1. The OP-1 provided only the hospital facility to the OP-2. He did not perform any plastic surgery on the patient, but it was performed by the OP-2. Only hospitalization and investigation charges were taken by OP-2.
We have perused the affidavit evidence filed by the OP-2 before the District Forum. It revealed that, there were multiple scars all over the face of the patient. He explained that the surgery was neither cosmetic nor plastic surgery. It was also explained that a scar cannot be removed and it can only be revised to the best. The entire treatment i.e. the scar revision surgery was performed, after informed consent, explaining the risks and benefits of the treatment. He submitted that on 18.08.2005, extensive multiple scar revision surgery was carried out on the face of the Complainant, which took 4? hours. He gave proper treatment by cross hatching. The scar revision was undertaken in 3 levels and the stitching was undertaken with ultra fine suture materials. Thereafter, the patient was followed up regularly. The patient was advised for Nivea cream massage on the healed stitches of the scar. After 02.09.2005, the patient never turned up for further review. On the basis of this evidence and the medical record it is clear that none of the OPs was negligent. It was proper treatment with due care. If there is no cure, it is not negligence. Doctors must exercise, an ordinary degree of skill. However, they cannot give a warranty of the perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of treatment, if she/ he is skilled and has worked with a method and manner, best suited to the patient, she/ he cannot be blamed for negligence, if the patient is not totally cured .Similar view dovetails with the judgments passed by this Commission in Mrs. Savitri Devi vs. Union of India IV (2003) CPJ 164; Dr. Devendra Madan vs. Shakuntala Devi I (2003) CPJ 57 (NC). It was also held by the Hon''ble Supreme Court in Mohd. Ishfaq''s case, as under:- "49.When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
We have perused the following medical literature on record,
a. Plastic Surgery, Second Edition, Volume I, by Stephen J. Mathes, MD, Published by Saunders.
b. Wound Healing: Repair Biology and Wound and Scar Treatment, H. Peter Lorenz, M.D., Michael T. Longaker, M.D.
c. Scar Revision, Nicholas Parkhouse, D.M. MCh, FRCS, Tania C. S. Cubision, FRCS, M. Dalvi Humzah, M.B.B.S., FRCS, MBA.
Therefore, on the basis of forgoing discussion, we are of considered view that the State Commission erred in holding the OP-1 negligent, who, neither performed any operation nor gave any treatment to the patient. Accordingly, we allow this revision petition and dismiss the complaint.