Dr. S.K.Jhunjhunwala vs Mrs. Dhanwanti Kaur

2. In order to appreciate the issue involved in the appeal, it is necessary to set out the relevant facts hereinbelow.

3. The appellant was the opposite party No.1 whereas the respondent No.1 herein was the complainant and respondent No.2 herein was the opposite party No.2 in the complaint out of which this appeal arises.

5. Respondent No.1(complainant)­a lady, who, at the relevant time, was residing in Calcutta felt pain in her abdomen in June 1996. She, therefore, consulted a local doctor but she did not get any relief. Therefore, she consulted Dr. Lakshmi Basu who, on examination, advised her to get some medical tests done such as X­ray, PA Chest, Ultrasound of upper abdomen Endoscopy, Blood Tests etc. Respondent No.1, as advised, carried out these medical tests. On examination of the reports of respondent No.1, Dr. Basu opined that her Gall 3 Bladder had two calculi in its lumen and the same could be cured only by operation. Dr. Basu accordingly advised respondent No.1 to undergo laparoscopic surgery from any good Surgeon and suggested the name of the appellant.

6. Respondent No.1, as advised, consulted Dr. S.K. Jhunjunwala­the appellant herein who, after her examination and also her medical test reports, agreed with the advise of Dr. Basu and accordingly advised respondent No.1 for undergoing Surgery of her Gall Bladder. The appellant also advised respondent No.1 to get herself admitted in respondent No.2’s Hospital for undergoing Surgery.

8. In December 1997, respondent No.1 filed a complaint under Section 10 of the Consumer Protection Act, 1986 (for short, “the Act”) against the appellant (opposite party No.1) and respondent No.2 (opposite party No.2) claiming compensation for the loss, mental suffering and pain suffered by her throughout after the surgery on account of negligence of the appellant in performing the surgery of her Gall Bladder on 08.08.1996. Respondent No.1, in substance, complained that firstly, she had never given her consent for performing general Surgery of her Gall Bladder rather she had given consent for performing laparoscopy Surgery only but the appellant performed general surgery of her Gall Bladder which 5 resulted in putting several stitches and scars on her body, Secondly, even the surgery performed was not successful inasmuch as respondent No.1 thereafter suffered for several days with various ailments, such as dysentery, loss of appetite, reduction of weight, jaundice etc., Thirdly, in June 1997, she was, therefore, required to undergo another Surgery in Ganga Ram Hospital, Delhi for removal of stones which had slipped in CBD. It was alleged that all these ailments were incurred due to the negligence of the appellant, who did not perform the surgery properly and rather performed the surgery carelessly leaving behind for respondent No.1 only mental agony, pain, harassment and money loss and hence she filed a complaint to claim the reasonable amount of compensation under various heads as mentioned above.

9. The appellant filed his reply and denied the allegations made by respondent No.1 in her complaint. In substance, the appellant stated in his reply that he, after examining respondent No.1, advised her to go for surgery of Gall Bladder, which may even include removal of Gall Bladder. It was stated that consent of respondent No.1 for performing the laparoscopic cholecystectomy was duly obtained before performing the surgery. The appellant stated that after starting laparoscopic surgery, he noticed swelling, inflammation and adhesion on her Gall Bladder and, therefore, he came out of the Operation Theater and disclosed these facts to respondent No.1's husband and told him that in such a situation it would not be possible to perform laparoscopic surgery and only conventional procedure of surgery is the option to remove the malady. The husband of respondent 7 No.1 agreed for the option suggested by the appellant and the appellant accordingly performed conventional surgery. Respondent No.1 was discharged after spending few days in the Hospital for post­operative care. The appellant, therefore, denied any kind of negligence or carelessness or inefficiency on his part in performing the surgery on respondent No.1 and stated that all kinds of precautions to the best of his ability and capacity, which were necessary to perform the surgery were taken by him and by the team of doctors that worked with him in all such operational cases.

10. Parties adduced affidavit evidence in support of their respective cases set up in their pleadings. The State Commission, by order dated 19.01.2004, dismissed the complaint filed by respondent No.1 finding no merit therein. Respondent No.1 felt 8 aggrieved and filed appeal before the National Commission.

29. The State Commission did not accept the aforementioned submission of respondent No.1 but this submission found favour to the National Commission for holding the appellant guilty of negligence in performance of his duty in performing the surgery. We do not agree with the reasoning of the National Commission on this issue for more than one reason mentioned below.

34. In our opinion, there is no reason to disbelieve this fact stated by the appellant in his evidence. It is, in our opinion, a natural conduct and the behavior of any prudent doctor, who is performing the operation to apprise the attending persons of what he noticed in the patient and then go ahead accordingly to complete the operation. 21

36. In our opinion, a clear case of grant of consent to the appellant to perform the substituted operation of Gall Bladder of respondent No.1 was, therefore, made out to enable the appellant to perform the conventional surgery, which he actually performed.

42. Had it been so, the appellant could be held liable for failure on his part to remove the stones and allowed them to remain in the Gall Bladder for such a long time. There was no medical evidence adduced by respondent No.1 to prove this fact.

50. In the light of what we have held above, we cannot concur with the reasoning and the conclusion arrived at by the National Commission. As a consequence, the appeal succeeds and is accordingly allowed. The impugned order is set aside and that of the order passed by the State Commission is restored.

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