IMPORTANT POINTOnce a comprehensive consent has been given empowering the doctor to perform alternative/better surgery, no separate consent is needed for such procedure.
For proving medical negligence evidence of some expert is necessary.

JUDGMENT

Abhay Manohar Sapre, J.

1. This appeal is directed against the final judgment and order dated 01.09.2009 passed by the National Consumer Disputes Redressal Commission (hereinafter referred to as “the National Commission”), at New Delhi in First Appeal No. 93 of 2004 whereby the National Commission allowed the appeal filed by respondent No.1 and set aside the order dated 19.01.2004 of the State Commission, West Bengal, Kolkata in Complaint Case No.698/O/1997.

2. In order to appreciate the issue involved in the appeal, it is necessary to set out the relevant facts hereinbelow.

3. The appellant was the opposite party No.1 whereas the respondent No.1 herein was the complainant and respondent No.2 herein was the opposite party No.2 in the complaint out of which this appeal arises.

4. The appellant is a doctor by profession and is practicing in Calcutta since 1969. He is a qualified Surgeon having expertise, especially in gall bladder surgery. He obtained his MBBS degree from Banaras Hindu University in 1968 and thereafter went to England and obtained FRCS degree in 1976. He then worked for seven years in various hospitals in England as a Surgeon and returned to India in 1978 and settled in Calcutta. He was a visiting consultant to several Hospitals out of which one was-Life Line Diagnostic Center and Nursing Home (respondent No.2 herein) at Calcutta where he used to perform operations on his patients.

5. Respondent No.1(complainant)- a lady, who, at the relevant time, was residing in Calcutta felt pain in her abdomen in June 1996. She, therefore, consulted a local doctor but she did not get any relief. Therefore, she consulted Dr. Lakshmi Basu who, on examination, advised her to get some medical tests done such as X-ray, PA Chest, Ultrasound of upper abdomen Endoscopy, Blood Tests etc. Respondent No.1, as advised, carried out these medical tests. On examination of the reports of respondent No.1, Dr. Basu opined that her Gall Bladder had two calculi in its lumen and the same could be cured only by operation. Dr. Basu accordingly advised respondent No.1 to undergo laparoscopic surgery from any good Surgeon and suggested the name of the appellant.

6. Respondent No.1, as advised, consulted Dr. S.K. Jhunjunwala-the appellant herein who, after her examination and also her medical test reports, agreed with the advise of Dr. Basu and accordingly advised respondent No.1 for undergoing Surgery of her Gall Bladder. The appellant also advised respondent No.1 to get herself admitted in respondent No.2’s Hospital for undergoing Surgery.

7. On 07.08.1996, respondent No.1 got herself admitted in respondent No.2’s Hospital as an indoor patient. On 08.08.1996 the appellant performed the laparoscopy and after that open surgery and removed the Gall Bladder of respondent No.1. Respondent No.1 was in the hospital for about a week or ten days for post-operative care and thereafter she was discharged.

8. In December 1997, respondent No.1 filed a complaint under Section 10 of the Consumer Protection Act, 1986 (for short, “the Act”) against the appellant (opposite party No.1) and respondent No.2 (opposite party No.2) claiming compensation for the loss, mental suffering and pain suffered by her throughout after the surgery on account of negligence of the appellant in performing the surgery of her Gall Bladder on 08.08.1996. Respondent No.1, in substance, complained that firstly, she had never given her consent for performing general Surgery of her Gall Bladder rather she had given consent for performing laparoscopy Surgery only but the appellant performed general surgery of her Gall Bladder which resulted in putting several stitches and scars on her body, Secondly, even the surgery performed was not successful inasmuch as respondent No.1 thereafter suffered for several days with various ailments, such as dysentery, loss of appetite, reduction of weight, jaundice etc., Thirdly, in June 1997, she was, therefore, required to undergo another Surgery in Ganga Ram