Back
BIHAR STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, PATNA
Hon’ble Mr. Justice D.P.S. Choudhary, President &
Dr. Asma Ahmad, Member
DR. UDAY SHANKAR BHAGAT—Appellant
versus
SANTOSH KUMAR SAH—Respondent
Appeal No. 24 of 2003—Decided on 2.7.2003
Counsels for the Parties :
For the Appellant :Mr. Satendra Kumar Dubey, Advocate.
For the Respondent:Mr. Vijaylaxmi Singh, Advocate.
In cases of medical negligence, the burden of proof is on the complainant to establish that the doctor fell below the standard of a reasonably competent practitioner and to produce expert medical evidence to prove negligence and inefficiency.
Headnote:
Medical Negligence - Operation - [Consumer Protection Act, 1986, Section 2(1)(g), Section 2(1)(o), Section 2(1)(r), Section 2(1)(u), Section 2(1)(d), Section 2(1)(g), Section 2(1)(o), Section 2(1)(r), Section 2(1)(u), Section 2(1)(d), Section 2(1)(g), Section 2(1)(o), Section 2(1)(r), Section 2(1)(u), Section 2(1)(d), Section 2(1)(g), Section 2(1)(o), Section 2(1)(r), Section 2(1)(u), Section 2(1)(d), Section 2(1)(g), Section 2(1)(o), Section 2(1)(r), Section 2(1)(u), Section 2(1)(d), Section 2(1)(g), Section 2(1)(o), Section 2(1)(r), Section 2(1)(u), Section 2(1)(d)] - The court discussed the provisions of the Consumer Protection Act, 1986, particularly Section 2(1)(g) defining 'complaint', Section 2(1)(o) defining 'deficiency', Section 2(1)(r) defining 'service', Section 2(1)(u) defining 'unfair trade practice', and Section 2(1)(d) defining 'consumer'. The court emphasized the need for expert medical evidence to prove negligence and inefficiency of a doctor in medical negligence cases. It highlighted the burden of proof on the complainant to establish that the doctor fell below the standard of a reasonably competent practitioner and the necessity of proving that the doctor was not competent to perform the operation.
Fact of the Case:
The complainant alleged that the appellant, a doctor, negligently operated on his right thigh, causing physical, mental, and economic loss. The appellant contended that he had performed the operation efficiently and advised the complainant for a follow-up operation to remove the remaining screws and plates.
Finding of the Court:
The court found that the appellant was negligent in his duty and had not performed the operation efficiently, causing physical and mental suffering to the complainant.
Issues: The main issue was whether the operation conducted by the appellant was negligent and inefficient.
Ratio Decidendi: The court held that in cases of medical negligence, the complainant must produce expert medical evidence to prove negligence and inefficiency of the doctor. It emphasized the burden of proof on the complainant to establish that the doctor fell below the standard of a reasonably competent practitioner.
Final Decision: The appeal was allowed, and the impugned order directing the appellant to pay compensation was set aside.
Mr. Justice D.P.S. Choudhary, President—Appellant is O.P. who has preferred this appeal against the order dated 18.12.2002 passed by District Forum, Banka in Complaint Case No. 42/2001 directing the appellant to pay a sum of Rs. 1,16,000/- by way of compensation within two months from the date of order besides the interest @ 12% per annum.
2. The brief fact of the case is that complainant filed the case before the District Forum alleging therein that he had a fracture on the right thigh in the year 1993. He was treated at Bhagalpur by Dr. Pradeep Kumar who fixed plate on his broken thigh. After four months he was in a position to move. He was advised to get the plate removed by an expert doctor. The complainant alongwith his father approached the appellant-O.P. on 7.2.2001. The appellant got his right thigh X-rayed and advised the complainant that his bone have been completely joined and it will be safe to remove the plate and screw from his right thigh. The complainant consented for the same and on 9.2.2001 the appellant got him admitted in his clinic at Banka and operated upon his right thigh. Thereafter his right thigh was plastered and the appellant advised him to come to his clinic after 45 days. Thereafter, the complainant went to the clinic of the appellant after 45 days and his right thigh was again X-rayed. The complainant was shocked to know that his right thigh bone which has earlier joined have again been broken and five screws were still fixed in the bone. The complainant contention is that appellant has performed his operation defectively to extract money from him. The appellant asked him that another operation shall be performed and he should arrange money for the same. The complainant’s and his father left the clinic of the appellant and rushed to Bhagalpur and got himself examined by Dr. Pradeep Kumar. He opined that the problem of the broken bones still persisted and advised him that he was to be operated again. On 21.4.2001 the complainant was again operated by Dr. Pradeep Kumar at Bhagalpur. A fresh plate with screw were fitted on his bones.
3. On the basis of the above fact the allegation of the complainant is that appellant-O.P. was not competent to perform such operation but inspite of that he operated his right thigh defectively which caused him physical, mental and economic loss and agony. The complainant is a student and also helps in the business of his father who runs a readymade shop. The complainant served a legal notice to the appellant and claimed Rs. two lacs. The appellant did not reply and thereafter he filed the case before the Forum.
4. The complainant in support of his case filed before the Forum Exhibit-1, which is the prescription of the appellant dated 7.2.2001, 14.3.2001, 22.3.2001 and 23.3.2001. The prescription mentions that complainant was advised to get his right thigh X-rayed. Thereafter, he was advised for operation and also to consult a physician. Some medicines were also prescribed by the appellant. Exhibit-2/A is another prescription of the appellant dated 9.5.1997 which shows that complainant has approached him for removing the plate and screw from his right thigh. Exhibit-1/A is the prescription of Dr. Pradeep Kumar who has performed second operation of the complainant which mentions that X-ray plate shows that earlier screw fitted on the bones of the complainant were found broken and a wrong attempt was made by the doctor to remove the plate and screw. Exhibit -1/B and Exhibit-2 are the prescriptions of doctor which shows that after second operation fresh plates were fitted to the right thigh of the complainant and after some time he had improved and he was in a position to move with the help of caliper. Some affidavits on behalf of the local person have been filed to show that complainant has approached the appellant in their knowledge for removing the plate and screws from his right thigh but the operation was not successful. They had advised the complainant to approach
