The need for expert evidence and the inability to resolve medical negligence disputes in a summary procedure.

Mr. Justice S.C. Datta, President—This revision petition is directed against order No. 21 dated 27.8.1997 whereby the Forum dismissed the case on the ground that it was not maintainable. According to the Forum elaborate and long evidence will be required for proper adjudication of the case and evidence of medico surgical experts will also be necessary. The Forum observed that it was not equipped with any infrastructure to undertake such an enquiry. In that view of the matter the Forum declined to entertain and adjudicate the dispute between the parties.

2. The case of the complainant is that he hired the services of Dr. Bhaskar Das (O.P.) for surgical treatment of his daughter, Beauty Goswami. On 8.4.1990 the doctor examined the daughter and opined that she required operation for setting right her right leg. Doctor asked the complainant to do some investigation and to obtain an X-ray report. As per advice of the Doctor the daughter of the complainant was admitted in the Janakalyan Nursing Home at Bhadreswar on 16.8.1994 and on the next day operation was performed. The patient was discharged from the Nursing Home on 20.8.1994. The complainant took the patient to the chamber of Dr. Das on 25.9.1994 who referred the patient to Shyamal Basik (O.P. No. 2) for Physiotherapy. As the condition of the patient did not improve she was taken to Dr. D.K. Mishra of Calcutta as per advice of Dr. Das. As the condition of the patient was deteriorating she was taken to another doctor whose name was Dr. A Roy Chowdhury and followed his advice. Even then the condition of the patient did not improve. The patient was unable to walk. The complainant again approached Dr. Das but in vain. Subsequently, he has brought the action against the opposite parties alleging deficiency in service.

3. The opposite party denied that there had been any negligence or carelessness on his part in the matter of surgical operation. According to the O.P. the patient did not recover on account of her failure to follow the advice given by Physiotherapist. The patient was asked to receive regular physiotherapy but this advice was not followed.

4. At the time of opening of the case the opposite party raised the question of maintainability of the case on the ground that the dispute between the parties cannot be resolved in a summary way. Elaborate evidence is required to be taken, discussed, analysed and evaluated before the question of negligence or carelessness is decided.

5. It is not disputed that the O.P. No. 1 is an Orthopaedic Surgeon and he is, therefore, competent to perform surgery upon the patient. It is also not disputed that the operation was done for consideration. The condition of the leg of the patient having not improved the complainant being the father of the patient has lodged the complaint petition alleging negligence and carelessness on the part of the surgeon. The case of the opposite parties is that the patient did not receive the physiotherapy regularly but received the same only for two days resulting in no improvement in the situation. The O.P. No. 1 has categorically stated in his written objection that as a prudent doctor he did whatever was required of him to be done under medical science. The Forum noticed that such a case has to be proved by producing oral evidence. According to the Forum the question whether the surgeon did the operation properly and according to medical science and whether there had been any negligence or carelessness in the operation has to be examined after obtaining opinion or evidence of some medico surgical experts. According to the Forum this dispute cannot be decided in a summary procedure. Forum observed that elaborate and long evidence would be required for proper determination of the case. Consequently, the Forum declined to exercise jurisdiction. The Forum placed reliance on a case reported in 1991 (CPR) 52 and another case reported in 1994 CCJ 202. On consideration of the materials on record we fully agree with t