S.A.QURESHI vs PADODE MEMORIAL HOSPITAL AND RESEARCH CENTRE

THIS is an original complaint wherein the complainant has alleged that the opposite party Padode Memorial Hospital and Research Centre through Dr. Prakash Padode performed on 5.2.1995 an operation of his knee joint negligently resulting in permanent disability of his leg as a result of which he cannot walk without the help of crutches. That after neglectful operation he had to undergo treatment at different places and he also suffered loss in business. Therefore, he has requested for payment of Rs. 5 lacs as compensation for the expenses incurred by him in his treatment alongwith compensation for mental agony. The complainant filed alongwith his complaint a photo-copy of certificate issued by District Medical Board, Guna wherein the Board has certified that he is now suffering with permanent physical impairment to the left lower limb up to 50 per cent. In Sub-para 6(k) the Board has written as under : "Post Traumatic Ankylosis... Permanent physical impairment to left lower limb is 50%."

THE opposite party in his reply to the complaint contended that the complainant has filed no documents, to even remotely suggest that the opposite party was negligent during the treatment of the complainant. That the permanent disability certificate by itself does not establish any negligence on the part of the opposite party because it is the result of so many factors including the nature of injury. That the Arthoscopy method of operation was explained to him before the operation was performed and he was explained that in such case total recovery was out of question. That he did not follow the advise of active Physio-THErapy. THE opposite party filed an affidavit of Dr. Prakash Padode wherein he has stated that on 4.2.1995 the complainant was not in a position to walk and his knee was totally unstable. After hearing the arguments of both the parties the case was closed for orders with direction to both the parties to furnish relevant medical literature in support of the arguments for and against the contents of paras 4, 5, 6 of the complaint, and the contents of the disability certificate of District Medical Board, Guna. But neither of the parties has supplied any documents whatsoever.

On a perusal of the reply and affidavit filed by Dr. Padode we find that Dr. Padode has not given any reply to the arguments put forth by the complainant in paras 4, 5 and 6 of the complaint. He should have and could have controverted the contentions of the complainant and could have also filed copies of medical literature to rebut this contention of the complainant that the repair of Anterior Curciate Ligament was necessarily to be done before repair of Posterior Curciate Ligament. In the doctrine of common knowledge the complainant must prove positive act of omission. But a duty is cast upon the opposite party also, to prove the fact that no sort of negligence took place inside the operation theatre, because when all such medical or surgical procedure are carried out inside the operation theatre, the patient himself or his relatives are unable to see any kind of medical or surgical procedure nor do they have any knowledge of surgical procedure. Thus the onus of proof that the procedure adopted was not wrong shifts upon the opposite party to establish that there was no negligence on their part.

WHERE there is a question of good faith of transaction between the parties, one of whom stands to the other in the positive position of active confidence, the burden of proving of good faith of the transaction is on the party who, is in a position of active confidence. Section 14 of the Evidence Act is as under : "The Court may presume existence of certain facts. The Court may presume the existence of any fact which he thinks likely to have happened regard being common course of natural events, human conduct and public and private business in their relation to the facts of the particular case."

Negligence means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or something which a prudent and reasonable man would not do.

IN Clark v. Maclenna, 1983 (1) All.ER 416, it has been clearly stated that in case where a general duty of care arose and there was failure to take a recognised precaution and that failure was followed by the very beginning, the burden of proof lay on the defendant to show that he was not in breach of any duty. The second thing for consideration before us is the disability certificate issued by District Medical Board, Guna, the contents of which have been quoted earlier. Post Traumatic anklylosis may not be ruled out to be a post operation complication. Opposite parties have stated in their reply that permanent disability is the result of so many factors including the nature of injury and does not establish any negligence on the part of the opposite party. The opposite party is a medical practitioner. We expect that he could have atleast explained the probable cause for the deformity as quoted in disability certificate by quoting medical literature and similarly could have explained by quoting medical literature that this disability was not due to any kind of negligence in the performance of operation by him. But here again the reply in the affidavit is silent on this issue. The opposite party has stated that the operation was done by Arthoscopy Method of operation. He could have further explained as to what is the Arthoscopy Method of operation and that the contentions of the complainant as contained in paras 4, 5 and 6 have no relationship with Arthoscopy Method of operation and contentions as contained in paras 4, 5 and 6 do not apply in any way in this case. As has been stated by us in earlier paragraphs, the burden lay upon opposite parties to rebut the contentions of the complainant and the factors of disability as indicated in medical certificate as not occurring due to surgical operation done by him by Arthoscopy Method of operation. On 3.2.1999, the complainant had filed an application for production of case history sheet with operating notes by the opposite party. The opposite party in his reply submitted that he made sincere efforts to trace the said record in the hospital, but he was informed by the hospital staff that as per the instructions and also as per the practice prevalent in various Nursing Homes including that of non-applicant, the record of the case had been eliminated (destroyed) after a lapse of three years. In this connection we find that the operation by the opposite party was performed on 5.2.1995. The complaint was filed on 17.10.1996 before us and the reply was filed by the opposite party on 8.5.1997. When complaint had been filed on 17.10.1996 and reply was filed by opposite party on 8.5.1997 it was the bounden duty of the opposite party to have retained the history sheet etc. till disposal of this complaint. While filing reply the opposite party must have perused the history sheet of the case to make sure that the reply was correct and to the point. Plea of elimination of record appears to be an attempt to suppress certain facts likely to be relieved from history sheet. We are inclined to feel that an educated person would not eliminate the record of a dispute which is pending in a Court of law, for disposal, of a complaint filed against him.

THE disability certificate issued by Medical Board, Guna indicates that there has been Post Traumatic Anklylosis. What does this medical terminology mean has not been explained to us by any of the parties nor has any of the parties tried to explain to us other contents of the disability certificate. In the absence of any arguments for and against, we feel that Post Traumatic Anklylosis was a necessary consequence of an operation performed which could not be removed or rectified for reasons best known to the surgeons only.

BESIDES this the complete silence of the opposite party on these issues forces us to come to this conclusion that the opposite party has tried to suppress the facts of the operations performed by him of which he alone has the knowledge and burden of proof lay on him to show that he was not in breach of any duty. The complainant has suffered 50% disability. The complainant has been running his own business, he has however not furnished any kind of certificates to indicate as to what was his earnings previously and what was his loss on account of this disability nor has he furnished any documents to establish the expenditure incurred by him in treatment after operation by the opposite party. In the absence of any evidence and material for award of compensation in acts of general and pecuniary damages, on some guess work linked with sympathy, the end of justice would meet if the compensation of Rs. 50,000/- is awarded. Therefore, we direct the opposite party to pay to the complainant a sum of Rs. 50,000/- with interest thereon at the rate of 12% from the date of this order within a period of two months from the date of receipt of certified copy of this order failing which the interest shall be payable at the rate of 15%. Accordingly the complaint is allowed with costs quantified at Rs. 1,000/-. A copy of this order be conveyed to the parties. Complaint allowed with costs.