In a medical negligence case, the complainant must prove deficiency in service on the part of the opposite parties. A consent form signed by the complainant acknowledging the risks and complications associated with the procedure is a relevant factor in determining whether there was deficiency in service.

Thiru Justice E.J. Bellie, President—The complainant as diagnosed by the St. Marthas Hospital, Bangalore suffered from an illness known as Congenital heart disease Large P.D.A. He came to the 1st opposite party-Madras Medical Mission Hospital for treatment. There he was operated upon on 22.6.1992 by a team of Doctors headed by Dr. V.V. Bashi, the 2nd opposite party. Now, according to the complainant the operation has resulted in the permanent loss of voice due to paralysis of the left vocal cord and this has happened due to the negligence on the part of the opposite parties. He would state that immediately after the surgery when he was in the I.C.U. he lost his voice but he was told by the Doctors and the Nurses that it would have happened due to the insertion of tubes during the surgery and it would be normal after 15 or 20 days. But even after the discharge on 30.6.1992 the hoarseness of voice continued. The 2nd opposite party-Doctor opined that at the time of the operation there would have been a slight injury to the nerve and he advised an E.N.T. check up and when accordingly E.N.T. check up was done the vocal cord paralysis was detected. Even thereafter it was told to the complainant that the voice would be normal in 6 months time. It was not at any time explained to him that there were chances of injury to the nerve or the risk of losing voice.

The complainant is a Senior Clerk in the Head Office of the Vijaya Bank in Bangalore. He was also a former State Level and National Level Chess Player and was coaching others for chess matches. Hoping that he would be a normal person he had incurred the expenditure of Rs. 50,000/- for the surgery and other treatment. Above all he is not able to communicate freely with others and his social life is shattered. On account of the loss of voice he is undergoing untold sufferings in many ways. On these allegations the complainant claimed for an award for Rs. 50,000/- for medical expenses, Rs. 7,00,000/- for further medical expenses that he would have to incur for medical treatment abroad and Rs. 8,50,000/- for compensation for mental agony and disrepute, all aggregating to Rs. 16,00,000/-.

2. The 1st opposite party-hospital would contend that it takes special care to ensure that the Doctors employed by it possess the necessary qualifications and competence for the job, and the 2nd opposite party was employed as full time Senior Counsultant who holds Post Graduate qualifications in Cardio-Thorasic Surgery and is also a Fellow of the Indian Association of Cardiac Surgeons. Special care is taken to explain to the patients about the details of the surgery and possible complications through the Doctors and nurses and only after this the consent of the patient for the surgery is obtained. This opposite party denies the alleged negligence on the part of the opposite parties.

3. The 2nd opposite party would contend that surgery for old patients with P.D.A. is extremely complicated as it involves division and suturing and all such facts had been explained to the complainant prior to the surgery and then his consent was obtained for surgery. During the surgery for closing the P.D.A. the focus is on avoiding injury to the ductal tissue which is friable as a tear may result in uncontrollable haemorrhage and the patient could bleed to death on the operation table itself. In spite of the best care of the surgeons during the surgery there could be some inadvertant pressure or injury on the laryngeal nerve which is closely associated with the ductus. In case such thing is not noted in the course of the surgery the definite manifestations would be there in the post operative period, and then the patient would be given immediate attention by an E.N.T. Specialists. In some cases due to fibrosis (formation of scar tissue in the healing process) the laryngeal nerve gets involved and the voice is affected. Injury to laryngeal nerve and paralysis of the vocal cord is a well-known documented complication ari