IMPORTANT POINT
Medical negligence has to be seen in terms of what should have been done as per medical literature or any expert opinion.

B.K. Taimni, Member— Petitioner was the opposite party No.1 before the District Forum, where the respondent No.1/complainant had filed a complaint alleging medical negligence on the part of the petitioner and respondent No. 2.

2. Briefly stated the facts leading to filing the complaint were that the complainant’s wife was admitted with the petitioner on 21.9.01 with severe pain in abdomen, upon which the petitioner and his wife were advised to come on 22.9.01 for surgery. Petitioner’s wife was brought to the hospital of the petitioner on 22.9.01 at 3 p.m. It was expected to be a small surgery but when the surgery was not completed even after three hours, he went in the operation theatre to know the status of the patient and the surgery, wherein the complainant was told by the petitioner, that treatment shall continue and he was asked to wait outside. At about 7.30 p.m. petitioner was told that his wife required some more treatment, hence she is required to be shifted to Sardar Patel Hospital, Ahmedabad, where she was taken in an Ambulance in an unconscious position, where she died on 24.9.01 at about 9.00 a.m. Opposite party No. 2 was an anaesthetist, who administered the dose of anaesthesia in the Hospital. Suspecting negligence on the part of the opposite parties, a Police report was filed. The post-mortem was done and report was obtained. As, according to the complainant, the death was caused by way of negligence on the part of the opposite parties, he filed a complaint before the District Forum, who after hearing the parties, allowed the complaint holding the petitioner and the respondent No. 2 guilty of medical negligence, and directed the opposite parties to pay Rs. 2,00,000 jointly and severally, to the complainant, along with interest @ 9% p.a. from the date of filing of complaint till realization along with compensation of Rs. 2,000 for mental agony and cost of Rs. 2,000. Aggrieved by this order only the petitioner filed an appeal before the State Commission, who after hearing the parties, dismissed the appeal, hence this revision petition before us.

3. We heard the learned counsel for the parties at some length and perused the material on record.

4. We had repeatedly and specifically directed the petitioner to file the surgical notes and also to complete the record. Despite this, what has been filed before us are the affidavits and cross-examination of Dr. Jayendra Modi and Dr. Vinayak Rao Patel, who had carried out the post-mortem. This report is on the record.

5. Despite repeated adjournments including imposition of costs, yet the petitioner has not filed the surgical notes.

6. What has been filed, is the notes recorded by the anaesthetist as well as the follow up action of Dr. S.J. Maitalia, who was brought in as an expert, to advise the petitioner, keeping in view the deteriorating condition/development of Pulmonary oedema resulting in stoppage of supply of oxygen to the brain of the deceased. It is also equally important to note that despite repeated directions the affidavits by way of evidence filed by the parties has not been brought on record. We see from the para 5 of the order passed by the District Forum that the complainant had been examined, but no such affidavit or examination has been brought on record. In fact, we see the petitioner has completely failed to bring on record any material in support of his contention that there was no medical negligence. His best defence would have been to file his affidavit by way of evidence in support of his contention which has not been done/which is not on record. Both the lower Fora have upheld the plea of the complainant duly supported by his affidavit/examination which remains unrebutted, that this was a case of medical negligence on the part of the petitioner and the second respondent. What has been brought on record are the examination in chief and the cross-examination of the two doctors, namely, Dr. Jayendra Modi and Dr. Vinayak Rao Patel, who had carried