PUSHPA NAMDEO AND OTHERS Vs. VIMAL GOLCHA

JUDGEMENT

(1.) THE appellants are the unsuccessful complainants who had filed a complaint against the respondent -doctor, alleging deficiency in service arising out of medical negligence committed by the respondent -doctor in treat -ingtheir predecessor -in -interest Rameshwar Namdeo and claiming compensation of Rs,15,70,000/ -. By the impugned order dated 7.6.2003, State Commission has dismissed the complaint holding that the respondent -doctor responsible fo'r committing any medical negligence in the said treatment.

(2.) BRIEFLY stated, the relevant facts leading to the filing of the complaint are that Rameshwar Namdeo, suspecting deposit of calculus in his kidney, approached the respondent doctor on 28.10.2000 for removal of the said calculus. He was admitted and after conducting necessary investigations, including radiological tests, and confirming that he had left ureteric calculus with non -visualized left kidney and right inguinal hernia, was operated on 29.10.2000 for removal of stone from his ureter. However, during the operation, the respondent -doctor informed the relatives of Namdeo that the whole kidney was infected and 500 -700 ml puss had to be drained out and, therefore, it was necessary to remove the said kidney; else it could affect the other kidney leading to complete renal failure. After obtaining consent of the wife and brother of Namdeo, respondent conducted 'nephrectomy', and the kidney so removed was sent for pathological examination and culture to Ranbaxy Specialty Laboratories Limited, Mumbai. Report dated 4.11.2000 received from there disclosed "chronic pyelonephritis", Namdeo was kept in the nursing home for post -operative treatment and management and was discharged on 8.11.2000. He, however, again reported to the respondent on 10.11.2000 with the complaint of pain and discharge from the site of the operation. He was treated for that and discharged on 14.11.2000 with directions to follow up. On 04.12.2000, he was again (third time) admitted for discharge of puss from the operation site and ultra sonography revealed that there was collection of fluid at the operation site. He was again admitted to the hospital on 25.12.2000 with the complaint of discharge and, therefore, exploration of the infected area with puss collection was done by the respondent. However, the discharge did not stop. On 1.1.2001, respondent - doctor again examined Namdeo and advised him anti -tuberculosis treatment. The report dated 12.1.2001 of the biopsy of the tissues excised during the abovementioned exploration revealed that the patient had 'Squamous Cell Carcinoma'. He was, thereafter, admitted to Jabalpur Medical College and advised radio -therapy and chemotherapy and despite the treatment taken, he expired on 17.04.2001. It was alleged that first the infection and then the carcinoma had developed due to the negligence and carelessness of the respondent -surgeon and so different amounts of compensation were claimed under various heads.

(3.) THE complaint was resisted by. the respondent thereby not disputing the factual position about he having performed surgery for removal of ureteric calculus but having removed the kidney itself during the process. Respondent, however, sought to explain that it was on account of the said kidney being badly affected /diseased and nonfunctional that it was considered necessary to remove it. It is also not disputed that there was severe infection at the site of operation and there was accumulation of fluids which was drained out on several occasions. The factum of biopsy reports and its findings are also not disputed. It is however, specifically denied that there was any negligence or carelessness on the part of the respondent either in conducting the surgery or in the post -surgery management of the patient or carcinoma had developed due to infection at the site of the operation. Liability to pay the compensation, much less to the extent claimed by the complainant, was specifically denied. The State Commission, on consideration of the respective pleas, framed following points for consideration;