- (1.) THIS order will govern disposal of appeal Nos. 396/04 as well as appeal Nos. 397/04, which have been preferred respectively by Dr. Arun Madharia, who was OP No. l before District Consumer Disputes Redressal Forum, Durg (hereinafter called "District Forum" for short) and the Oriental Insurance Company Ltd. which was OP No. 2 before District Forum. The District Forum vide order dated 3.8.2004, passed in complaint case No. 171/2000, directed both the appellants to pay either jointly or severally to complainant / respondent Rs. 1,50,000 by way of medical expenses and Rs. 50,000 by way of compensation for mental agony, in all Rs. 2,00,000, within a period of two months from the date of passing of the impugned order along with interest @ 6% p.a. from the date of filing of the complaint and cost of litigation, quantified as Rs. 2,000.
(2.) THE respondent Nos. l and 2 of both the aforesaid appeals Smt. Ratna Soni and Mohendra Kumar Soni, had filed complaint before the District Forum alleging medical negligence against Dr. Arun Madharia, who was OP No. l before the District Forum with the aversion that the OP No. 2 provided insurance cover to OP No. l and, therefore, both of them are liable to pay compensation on account of medical negligence committed by OP No. l, during surgical operation of complainant No. 1. As both appeals have been preferred against the same order, therefore, they have been heard together and are being decided by this common order.
(3.) IT was not in disputed before the District Forum that respondent No. l / complainant No. l was having complaint of severe pain on her back and left leg. OP No. l advised for X -ray and CT scan of her back and after seeing the report of CT scan and X -ray plate, operation of L4, L5 of the spine was suggested. The complainant contacted another orthopaedic surgeon Dr. Shankar Dubey and to him also the report of CT scan and X -ray was shown and he also suggested operation of L4, L5 of spine. On the basis of the suggestions given by both doctors, she got herself admitted in the hospital of OP No. l, on 31.1.1998. She was diagnosed as a case of Prolapse intervertebral Disc L4 and L5 and was operated on 1.11.1998. She remained in the hospital for few more days till 15.11.1998 and was discharged thereafter and some treatment was advised, with direction of review after 15 days or as and when required. Direction of dressing with Batadin ointment, daily, was also given and some tablets etc. were prescribed. As per the case of the complainant before District Forum, even after operation performed by OP No. l, she was not relieved from the problem of pain. She was called on 22.11.1998, for removing the stitches, in the hospital. On that day also, there were some pain at the place, where operation was performed. On 28.11.1998 again she suffered pain on the portion which was operated, she contacted Dr. Madharia who prescribed certain pills and had also admitted her in the hospital. When she was not relieved from the pain, then she was discharged from the hospital with a direction to take treatment in Sector -9 hospital of Bhilai. She remained in that hospital Sector -9, Bhilai from 25.12.1998 to 6.1.1999 and took treatment for malaria, gastric trouble and pain. She was discharged from thereafter that period. But, even then the pain, on the back was continuing. She contacted one Dr. Vinayak Mahurkar and took treatment from him from 29.1.1999 to 3.2.1999 as an indoor patient in his hospital. Then, she was suggested to contact some good Neurosurgeon. On his advice, complainant No. l went to Dr. Shailesh Kelkar, Neurosurgeon, CIMS Hospital, Nagpur On 15.2.1999, he suggested for MRI and after seeing the report, informed that there is infection in the operated site. She remained in the hospital for more than two months and then was discharged. During that period she was operated also. When again she suffered pain and contacted Dr. Kelkar, then he referred her to Dr. P.S. Ramani of Bombay. Dr. Ramani treated her from 21.6.1999 to 7.7.1999 as an indoor patient. It has been alleged by complainants that OP No. l, Dr. Arun Madharia was negligent in diagnosing and in giving treatment, which resulted in continuous pain at the operated site as well as infection on the Lumbar region at the level from L2 to L4. She was required to spent Rs. 1,96,441 on treatment on account of negligence of Dr. Arun Madharia and so filed complaint for a claim of Rs. 3,96,441 including compensation for mental agony Rs. 2,00,000 before District Forum. Dr. Arun Madharia, who was OP No. l before District Forum and appellant before this Commission, has refuted the allegations levelled by complainants, in his written version, filed before District Forum and averred that in the report of CT scan of Lumbosacral Spine and vertebral joints, it was found that there was generalized disc bulge L4 -5 and L5 -S1 level, resulting in bilateral, lateral neural canal stenosis and thecal sac compression (Severe at L4 -5 level). There were some defects in disc L4 -5 level and was pressing the nerve towards backside. It was the cause of pain and after seeing this report, operation was suggested. It was informed to the complainant that there would be certain complications after operation and she would suffer some pain. It has also been averred that the operation conducted by OP No. l was successful and when she came to the doctor on 21.11.98, then she was quite alright, healthy, cheerful and fully satisfied. Later on, on 12.12.1998, she came to Dr. Madharia with complaint of pain in abdomen and fever and gastric trouble for which blood test was suggested and in blood test, if was found that she was suffering from malaria. Her relatives were interested in getting treatment for that disease in Sector -9 hospital, so she was discharged and was referred for that hospital. It has also been averred by Dr. Madharia that the operation which was conducted by him was quite successful and after that operation there was no infection at the level L4 -L5. Subsequent MRI report shows that she was suffering from tuberculosis at the level L2 -4 and was having pus at that level, which was the root cause of her other subsequent troubles, for which the OP No. l Dr. Arun Madharia cannot be held liable. It has also been averred that infection at the level L2 -L4 had not been caused on account of operation at L4 -L5, but it is a separate event. It has been averred that while treating the lady he had not committed any deficiency or any negligence in treatment and so he is not liable to pay any compensation.;