Sanjeev Rastogi vs Deepak Sehgal

THESE appeals arise from an order dated 16.07.2007 passed by the Delhi State Consumer Disputes Redressal Commission in complaint no.C-88/97. By the impugned order, the State Commission has partly allowed the complaint filed by Master Deepak Sehgal through his father and guardian Sh.R.K.Sehgal, alleging medical negligence and deficiency in service on the part of the opposite party-Dr.Sanjeev Rastogi and has directed the opposite party-doctor to pay lumpsum compensation of Rs.1 lakh including cost of litigation.

MASTER Deepak Sehgal had filed the complaint before the State Commission through his guardian claiming a compensation of Rs.15,21,100/- alleging negligence on the part of the opposite party-Dr.Sanjeev Rastogi in performing the operation for removal of Cystic Lesion developed on the left knee of the complainant on 20.04.96. While doing so, he having damaged two nerves of the left leg due to a deep routed cut resulting in his permanent disability in normal functioning of his leg. The complaint was resisted by the doctor not disputing the factum of he having performed the above surgery but it was denied that there was any negligence on his part in conducting the said procedure. In regard to the specific allegation that he had damaged the nerves by a deep routed cut, the doctor tried to explain the same on the following premises: i. Complaint is liable to be dismissed on the ground that the complainant has not made the case of negligence against the OP who is a qualified surgeon in his own field i.e. Orthopaedic Surgeon. ii. Complaint is also not maintainable in law as there are two theories of science, it cannot be alleged that the theory chosen by the doctor is wrong as the present complaint is mainly based upon two possible theories of medical science. iii. MASTER Deepak was advised surgery as the pain had become intolerable in the knee as a result, this surgery was most imminent and there was no other option. It was also brought to the knowledge of the father of the complainant that such cystic lesion was likely to remain because origin of the swelling is not clear unless the operation is performed. There is a sural nerve, which is known as vestigial nerve, and sometimes the said nerve is removed alongwith the swelling to reduce the pain. Tissues and nerve have to be removed together. iv. It is denied that the OP came to know from the report of the biopsy test that the operation was unsuccessful. It is also denied that while operating the leg, two nerves of the left leg were damaged to the deep routed cut, resulting into permanent disability in the normal functioning of the leg. There was no negligence on the part of the OP. At the trial of the complaint, the complainant mostly relied upon the opinion and medical record of the treatment at G.B.Pant Hospital after the surgery. The State Commission going by the respective pleas and on consideration of evidence and material produced on record came to conclusion that left posterior nerve of the complainant was damaged due to a deep routed cut, may be while removing a single nerve with a view to subsidize the pain which amounted to negligence on the part of the doctor. According to the State Commission, the complainant failed to establish the extent of disability. So, the complaint was partly allowed and limited compensation to the above extent was awarded.

Aggrieved by the said order, opposite party-doctor Sanjeev Rastogi has filed First Appeal No.704 of 2007 seeking to set aside the finding and order passed by the State Commission while First Appeal No.143 of 2008 has been filed by the complainant Master Deepak Sehgal seeking upgradation of the relief by enhancement of compensation so awarded to him by the State Commission.

WE have heard Mr.Prateek Dahiya, learned counsel for the appellant - doctor and Dr.Sushil Kumar Advocate, learned counsel representing the respondent-complainant and have given our thoughtful consideration to their respective submissions. Learned counsel for the appellant-doctor would assail the finding of the State Commission holding the doctor guilty of negligence for having caused damage to his left posterior nerve while performing the operation as not based on correct and proper appreciation of the evidence and material brought on record. He would rather contend that the said finding of the State Commission that appellant-doctor had damaged the left posterior nerve while carrying out the operation is not based on any material whatsoever on record as is the result of surmises and conjectures. In any case his argument is that the damage claimed by the complainant was not on account of any negligence committed by the appellant-doctor in the course of surgery but it was on account of the fact that complainant had taken an arduous journey on foot to the holy shrine of Vaishno Devi soon after the surgery. The next contention is that if any injury had been caused to the nerves of the complainant during the course of surgery, it would have caused much more serious deficiency/disability than what is complained by complainant himself. On the other hand, learned counsel for the complainant on the strength of reports and record of G.B.Pant Hospital has contended that it was established on record beyond doubt that damage to the nerves of the left lower leg was caused during the surgical operation conducted by the doctor. We propose to deal these contentions one by one.

SO far as the contention of doctor that there was no material on record to come to a finding that damage to nerves was caused due to deep routed cut is concerned, we find merits in it because even going by the material produced on record including the record of G.B. Pant Hospital it cannot be said that any deep routed cut was caused during the surgery conducted by the appellant-doctor. However G.B.Pant hospital has clearly recorded the finding post operative injury to left part tibial nerve. The EMG report conducted on 19.09.96 would also suggest that there was some deficiency in the nerves of the left leg of the complainant. Specimen of Cystic Lesion was sent for Histopathology and the said report / test disclosed that along with tissues, nerve bundles were seen to form the underlying thickness of the cyst. These reports indicate that while performing the operation of Cystic Lesion on the left knee of the complainant, the operating doctor had also severed or removed certain nerves alongwith Cystic Lesion which was confirmed by the report of G.B.Pant Hospital. We are therefore of the view that conclusion reached by the State Commission that certain damage was caused to the posterior nerves was based on correct appreciation of the evidence and material brought on record. This position would be fortified even from the doctors own explanation there is a sural nerve, which is known as vestigial nerve and sometime the said nerve is removed alongwith the swelling to reduce the pain. Tissues and nerve have to be removed together (supra). Learned counsel for the appellant-doctor then contended that injury to the left posterior nerve as noted by G.B.Pant Hospital was a post operative injury which according to him means that it was caused subsequent to the operation and not during the course of surgical operation conducted by the doctor. In this regard it was pointed out that injury must have been suffered by the complainant when he undertook strenuous journey to the holy shrine of Vaishno Devi. We have noted this contention only to be rejected because there is no material to support that the complainant suffered the said injury when he visited the wholly shrine of Vaishno Devi since injury to the nerves was noted soon after the surgery. Going by the material on record, we have all the reasons to hold that injury to the nerves was caused during the course of surgery performed by the doctor. We are, therefore, inclined to uphold the finding of the State Commission so far as it has held the appellant-doctor negligent in performance of his duties as surgeon. The next question which arises for our consideration is as to whether compensation so awarded by the State Commission is just, reasonable, excessive or inadequate. In the complaint, complainant had claimed compensation of more than Rs.15 lakh alleging permanent disability of his left lower limb. As rightly observed by the State Commission, the complainant has failed to bring any cogent material on record to establish whether the injury to his nerves had resulted into disability of permanent nature or functional disability and, if so, to what extent. In order to succeed on his claim to that extent, it was imperative upon the complainant to have established nature and extent of disability resulting from the said injury. It was for these circumstances that the State Commission taking the overall view of the matter has awarded lumpsum compensation of Rs.1 lakh.

DR. Sushil Gupta, learned counsel for the complainant argued that the aforesaid compensation is inadequate having regard to the entirety of the facts and circumstances more particularly that the complainant was a student at the relevant time and he will suffer for the rest of his life on account of the said injury. According to him due to the nerve injury caused during the operation, the complainant had developed flat foot which has impaired proper movement of the lower limb of the complainant. In this regard we simply observe that no material has been produced to substantiate this deformity / disability. In our view having regard to the facts and circumstances, the compensation awarded by the State Commission is quite just and appropriate. It can neither be said to be excessive or harsh on the appellant-doctor nor inadequate so far as the complainant is concerned. We, therefore, see no case for enhancement of compensation.

IN the result, both the appeals are hereby dismissed. It is stated by the learned counsel for the appellant that during the pendency of the present appeal and under the directions of this Commission, a sum of Rs.65000/- has already been deposited in this Commission besides a sum of Rs.35000/- as pre requisite for filing the appeal. Since we have upheld the order of the State Commission awarding the compensation of Rupees One lakh, we direct the registry to disburse the entire amount i.e. Rs.65000/- and Rs.35000/- deposited by the appellant in this Commission alongwith interest accrued on the said amounts to the complainant Deepak Sehgal who has already attained majority. No order as to costs in these proceedings.