GOPAL DASS Vs. S.P. MANDAL

JUDGEMENT

(1.) BEING aggrieved by the order of the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) in Complaint No. C -80/2003, two cross appeals have been filed. First Appeal No. 201 of 2008 has been filed by Gopal Dass, Original Complainant and First Appeal No. 284 of 2008 has been filed by Dr. S.P. Mandal, Opposite Party No.1. Since the facts and the parties in both appeals are common/similar arising out of the same consumer complaint, it is proposed to dispose of these appeals by a common order by taking the facts from First Appeal No. 284 of 2008. The parties will be referred to in the manner in which they were referred to in the complaint i.e. Shri Gopal Dass as Complainant, Dr. S.P. Mandal as Opposite Party No.1 and Sir Ganga Ram Hospital as Opposite Party No.2.

(2.) IN his complaint before the State Commission, Complainant contended that in 1998 he suddenly developed pain in his right foot while walking and there was also appearance of some black spots. He, therefore, visited OP -2/Hospital, where he consulted OP -1 who is an Orthopedic Surgeon. After medical examination, he was advised surgery since his right toe was enlarged. He was given medicines by OP -1 for one week and was asked to make up his mind whether to undergo the surgery. Since Complainant got no relief from his pain despite taking the prescribed medicines, he again went to OP -2/Hospital, wherein he was informed by OP -1 that the surgery would cost Rs.20,000/ - but if he got it operated from a private clinic being run under the name of Ram Lal Kundan Lal Orthopedics Hospital, he would have to pay half the amount. Complainant, therefore, accepted the advice for the surgery in the private nursing home and got admitted there on 05.07.1998. The surgery was performed on 06.07.1998 during which OP -1 wrongly cut a part of the enlarged bone. As per the certificate given by the Ram Lal Kundan Lal Orthopedic Hospital, during the course of this surgery, OP -1 also fixed a pointed wire joining the great toe and 3 fingers of Complainant 's right foot but the said pointed wire kept touching the 4th small toe of the right foot causing a wound in the small toe of that foot. Complainant informed OP -1, who noticing the fault asked his staff to remove the same after 10 days while in fact it was to be removed after 21 days. When the said wire was removed, it was noted that there was a hole that had developed in the toe of the right foot. However, no dressing or treatment was given for the same, as a result of which the big toe of the right foot became septic. After some time it became numb (dead). It was stated that negligence was there at every stage of the treatment and surgery so much so that even in the discharge certificate it was stated in the column 'diagnosis ' that the Complainant was operated on the left foot whereas in fact the surgery was performed on the right foot. It was further stated that for the Buerger 's disease with the Complainant which had been later diagnosed by OP -1, no surgery was required and treatment for this disease following the Doppler test is an Angiography (i.e. Ballooning) whereby the obstruction in the artery/vein is removed. Thus, OP -1 committed gross medical negligence and blunder in performing a non -required surgery as there was no enlarged bone of the toe and in fact there was only obstruction in the vein of the right foot which required angiography. Complainant had to be later taken to the emergency in OP -2/Hospital where he remained admitted from 16.09.1998 to 26.09.1998, during which period gangrene developed in the right foot and he had to undergo two surgeries which required amputation of the foot and thereafter the leg upto the knee. As a result of this, Complainant suffered disability of 80% as confirmed by the certificate issued by Safdarjung Hospital. Being aggrieved because of the utter neglect and deficiency in conducting a surgery based on the wrong diagnosis which led to amputation of his leg below the knee and 80% disability, Complainant filed a complaint before the State Commission seeking total compensation of Rs.30,00,000/ - for the mental agony, torture and business loss suffered by him on account of the actions of the OPs.

(3.) THE State Commission after hearing the parties and on the basis of evidence produced before it, partly allowed the complaint by observing as follows :