IMPORTANT POINT
Medical negligence has to be proved by expert opinion.

Dr. S.M. Kantikar, Presiding Member—This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 27.11.2013 passed in Appeal No.855 of 2012 by Delhi State Consumer Disputes Redressal Commission (for short, ‘the State Commission’) whereby the State Commission has dismissed the appeal of the complainant.

2. The brief facts relevant for the disposal of the case are that the complainant, Mr. Bhushan Kumar Batra (herein after referred as ‘patient’) suffered a fracture of right leg during accident on 16.1.2004, evening. Immediately, he was taken to Dr. Khosla’s clinic where Dr. Khosla, the orthopaedic surgeon, after his examination and X-ray, put a plaster on leg and called him after three months. Dr.Khosla opened the plaster after three months and found that the complainant’s leg bone was bent, therefore, Dr. Khosla advised bed rest and physiotherapy. Five months later, Dr. Khosla advised surgery for the bent leg but the facility was not available with him. Hence, the complainant approached Sir Ganga Ram Hospital at Delhi (the OP-2), consulted Dr. S.P. Mandal (the OP-1), an Orthopaedic Surgeon. OP-1 also advised for the operation and assured the complainant about completer cure. Accordingly, the patient got admitted on 6.6.2004 and he was operated by OP-1 for High Tibial Osteotomy on 8.6.2004. The complainant alleged that during surgery, OP-1 had negligently cut the Right Superficial Peroneal Nerve. It was intentionally not revealed by OP-1 to the complainant and plastered his leg for two months. After removal of plaster, the complainant had right foot drop. It made the complainant unable to walk on barefoot or with chappal. He approached OP-1, again, who prescribed some medicines and advised exercise but there was no relief. Hence, the complainant approached Mata Channan Devi Hospital, wherein Nerve Conduction Test (NCT) and other tests confirmed about Right Peroneal Nerve cut. Alongwith those reports, complainant approached OP-1, who, after perusing the reports, told the complainant not to reveal the said fact to anyone and he will cure it by another surgery without any charges. OP 1 also had offered a cheque of Rs.10,000/- to the complainant to keep mum in this matter. Even though, after second surgery OP-1 raised the bill for Rs.40,000/-. Thus, it clearly shows that OP-1 was negligent during first operation. Even the complainant had no relief after second surgery and he became physically handicapped but the OP-1 assured the patient that he will be cured 100% within 2 to 5 years.

3. Aggrieved by the alleged wrong treatment of the OPs, the complainant filed a complaint before the District Consumer Disputes Redressal Forum, Delhi (for short, ‘the District Forum’) for a compensation of Rs. 20 lakhs.

4. The OPs contested the complaint and filed the written version. Dr. Mandal/OP-1 submitted that as per complainant’s own admission, in his complaint, the complainant was wrongly treated by Dr. Khodwa, when he met with accident in January, 2004, which resulted in mal-union of bone. Therefore, he had approached OP 2/Sir Ganga Ram Hospital for further treatment. The complainant was admitted in Sir Ganga Ram Hospital on 6.6.2004, the pre operative examination and possible complications were explained to him. After the informed consent, the surgery was done on 8.6.2004. He was operated by OP 1, assisted by qualified team of doctors. The surgery was uneventful. There was no nerve damage or cut during the said surgery. As a routine procedure, the operated limb was protected in a plaster cast and the patient was discharged from the hospital on 11.6.2004. Regular dressing was done and there was no evidence of nerve palsy during the early post operative period. On removal of plaster, it was noticed that the patient was unable to move his ankle and toes upwards and, therefore, possibility of Peroneal Nerve Palsy was suspected, therefore, the patient was advised to wear a spl