JASMINE PATEL vs R.J.MANEK SHAH

DR . (Miss) Jasmine Patel of Bombay is the appellant and Dr. R.J. Manek Shah and Dr. Bacha''s Memorial Bellvue Nursing Home are the respondents in the appeal against the order of Maharashtra State Commission in complaint No. 685/92.

THE complainant appellant alleged medical negligence on the part of the opposite party No. 1, Dr. R.J. Manek Shah who performed on her an operation known as lipolysis to remove the excess fat from her waist-downwards. She was hospitalised in the nursing-home of the opposite party between the period 16.10.1989 and 9.11.1989 for period of 23 days. Miss Patel who had lost her kidney while in Germany started putting on a lot of weight and was feeling uncomfortable about it. She happened to meet Mr. Manek Shah in Bombay who cautioned her that excess fat could lead to bad hernia and that this fact could be removed by a new technique Key-hole surgery which the respondent No. 1 had mastered. Persuaded by this advice, she underwent surgery on 16.10.1989. However, thereafter, she developed a number of complications affecting her bowels which were noticed only after a few days of the operation. She consulted Dr. Pratap Shroff when her condition became critical and had to undergo a second surgery on 21.10.1989 by Dr. Pratap Shroff. It is her case that Dr. Pratap Shroff told her and Dr. Manek Shah that the latter had committed blunders which may cause complainant''s death. In any case, it was discovered that while removing the fat the suction instrument was carelessly used resulting in perforative peritonitis. Alleging gross negligence and carelessness on the part of Dr. Manek Shah, the respondent No. l, she claimed a compensation of Rs. 5,40,000/-, refund of the operational charges of Rs. 1,50,000/ - and Rs. 3,00,000/- towards compensation for physical pain and mental agony, thus, making a total of Rs. 9,90,000/-. Her complaint was heard by the Maharashtra State Commission where the respondent Dr. Manek Shah filed his version and stated that the alleged grievance of Miss Patel has been removed amicably through the intervention of a common friend and that she has been paid Rs. 25,000/- as ex-gratia on humanitarian grounds and that she had signed a statement dated 15th March, 1990 wherein she has dearly stated that she has no claim against the respondent No. 1. It was argued that in view of this declaration signed on March 15,1990 after receiving a payment of Rs. 25,000/- the complainant has no right to agitate the same claim again. During the hearing of the case before the Maharashtra State Commission the complainant respondent offered to be examined by the lady Member of the State Commission. Mrs. Ellen Dharkar, accordingly examined her in the presence of Dr. Manek Shah and Dr. Pratap Shroff and found two small scars about half-inch in the right and left groin which were faint and could not be seen without visual aid. The State Commission observed that the main grievance of s Patel was about the big scars caused by incision during lipolysis. Based on the report of the lady Member of the Commission, Mrs. Ellen Dharkar, the Commission came to a view that "these scars were normal result of operation and could not be considered as arising out of any negligence or carelessness on the part of the operating surgeon". As regards the other complaint that her small bowel was damaged resulting in perforative peritonitis, the State Commission came to the view that "after having had a look at the instrument which was used for surgery, tl

EY do not believe that it could have caused perforative peritonitis and even resulted in quadruple hernia. Taking note of the declaration signed by her on 15th March, 1990 regarding settlement of her claim by accepting Rs. 25,000/- though under protest, the State Commission found no merit in her claim and dismissed the same.

IT was argued before us by the learned Counsel for the complainant that her main complaint was not as regards scars on her groin, but the suffering from multiple abdominal hernia which she discovered a month later than March, 1990 when she signed the settlement agreement and received Rs. 25,000/-. In fact, because of the multiple abdominal hernia, which, according to her, is the result of carelessly handled lipolysis operation, her intestines protrude out causing a bulge whenever she is coughing and it was on 10th May, 1990 that Dr. Pratap Shroff found out that she now has a permanent reducable bulge on the left side in her flank. Dr. Shroff has given a certificate dated the 10th May, 1990 stating that "the aforesaid reducable bulge on the left side in her flank is incurable except by high risk surgery which she is not willing to undertake and will involve huge expenditure". She has thus been left in a state where she will have to suffer for the rest of her life. Therefore, her Counsel argued that it was inconceivable that she would have settled her claim just for Rs. 25,000/- in the face of such a continuing suffering and agony for the rest of her life. We find that the State Commission''s order does not adequately deal with the allegations made by Miss Patel as the Commission has based their conclusion mainly on the brief report of the lady Member of the Commission and the settlement agreement between Miss Patel and Dr. Manek Shah dated 15th March, 1990. As it has been alleged that the problem of multiple abdominal hernia and a permanent reducable bulge was discovered later than this settlement agreement and further that both these complications are attributed to the negligence in lipolysis operation performed by respondent No. 1. Dr. Shah, we consider it just and fair that this aspect of the complaint is adequately dealt with on the Basis of the evidence lead by the parties if they so desire. We, therefore, remand this case back to the State Commission for giving an opportunity to Miss Patel to substantiate her allegations and to the respondent No. 1 to repudiate them on the basis of whatever material and evidence they may like to place before the State Commission. The appeal is accordingly disposed of. Parties are left to bear their own costs and are directed to appear before the State Commission on 14th August, 1997 for taking instructions from the State Commission as regards the date of hearing of their case.