Chapter: 6.1.3 Prashanth S. Dhananka v. Nizam Institute of Medical Science & Ors,

In Prashanth S. Dhananka v. Nizam Institute of Medical Science & Ors, I(1999) CPJ 43(NC), while allowing the complaint, Hon'ble National Commission has observed as follows:

1. On inadequate Pre-operative tests: By not conducting these necessary preoperative tests such as MRI Scan, contract CT Scanning etc. O.P No.4 and 2 denied the benefit of advance information about excision of tumour into the inter-vertebral foramen and the area spread of the mass vis-a-vis the vertebral body and the spinal cord, and deprived the complainant of the normal medical care he was expected to get prior to the operation. Consequently, O.P No.2 opened the thorax and proceeded without the collaboration of the neurosurgeon and noticed the erosion of the vertebrae and spread of tumour into inter-vertebral foramen while removing tumour. Thus the negligence on the part of OP No. 4 and 2 led to a deficiency of service contended by the complainant in respect of the inadequacy of the diagnostic procedure in the pre-operative stage gets firmly established.

2. Where deficiency in service in the pre-operative stage is per se established: There was an injury to the spinal cord and it was damaged consequent to the operation and there was reduction/non supply of blood to spinal cord. Opposite Parties have not been able to explain why removal of a benign tumor in the chest Bali resulted in spinal cord injury and paraplegia. There was lack of proper appreciation and assessment of the neurological implications of the pathology and spread of the tumour, due to which the surgery was performed without the complete involvement of the neurosurgeon. This was a serious lapse on the part of O.P No.2 and amounted to negligence and lack of care and, therefore, deficiency in service in the operation per se.

3. Negligence in Tort: A person holds out himself as ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, namely, a duty or care in deciding Werner to undertake the case, duty of care in deciding w hat treatment to give or a duty of care in administration of treatment. A breach of any of those duties gives a right of action of negligence to the patient. In the present case removal of a substantial part of the tumour was preceded by the histopathology investigation report. The complainant actually had a benign tumour Schwannoma. When the distinction betweenneurofibroma and Shwannoma was pointed out, O.P No.2 agreed with the practical significance in transecting the nerves and stated that he removed the tumour along with the intercostal nerves since in a neurofibroma, the entire nerve is involved in the tumour, thereby implying that he was dealing with neurofibroma.

4. Whether parents, brother and uncle of the patient, who is an adult, are covered within Sec. 2(1) (d)(ii) of the Act as Consumers and consequently entitled to claim compensation? Parents who gave support to the patient for a very long period in view of the physical immobilization of the patient and sensory deficiency consequent to the surgery, are consumers and were awarded Rs. 1.5 lace jointly by way of compensation (in addition to Rs.14 lacs awarded to the patient). However the claim TV the Complainant's brother and maternal uncle cannot be sustained as they are not covered by the definition of consumer under the Act.

Further, doctors are also required to keep in mind the requirements of medical ethics. One of the requirements, namely, display of charges/fees for variety of services rendered by Medical Professionals was highly controversial and a sensitive topic amongst the medical fraternity. Medical ethics (as amended) provides that specialists should have necessary qualification and that specialists alone should attend specialty problems when specialists are available. Thus a distinction may be made between emergencies when a specialist in a particular specialty is not available and a planned surgery as in the case of Prashanth S. Dhananka.

Whether Consumer Cases involving complicated issues of law and facts and pending before Consumer Forum for several years are necessarily to be sent to Civil Court?

In a landmark decision of the Full Bench of the Supreme Court in the matter of Dr. J.J.Merchant and Ors. V. Shrinath Chaturvedi, 2002(4) ALL MR 605 (S.C) the Apex Court inter alia dealt with the procedure relating to conduct of matters before the Consumer Fora, delay in disposal clef complaints and whether a complicated matter has to be necessarily dismissed by the Consumer Redressal Agency with liberty to approach the civil court.

In regard to speedy disposal of a complaint and the procedure to be adopted by the Commission, the Supreme Court held as follows:
Consumer Protection Act (1986), Ss.13, 17, 21

From S.13 it is apparent that on receipt of the complaint, the opposite party is required to be given notice directing him to give his version of the case within a period of 30 days or such extended period not exceeding -15 daters as may be granted by the District Forum or the Commission. For having speedily trials this legislative mandate of not giving more than 45 days in submitting, the written statement or the version of the case is required to be a adhered. If this is not adhered, the legislative mandate of disposing of the cases within three or five months would be defeated.

Under S.13(4) of the Act, the Commission or the Forum is empowered to exercise the powers vested in Civil Court for discovery and production of any document, the reception of evidence on affidavit and of issuing of any commission qua examination of any witness. The Commission can always insist on production of all documents relied upon by the parties along with the complaint and the defence version.

It is true that it is the discretion of the Commission to examine the experts if required in an appropriate matter.  It is equally true and in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Fora to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under section 13(4)(iii)]. It also empowers such Forums to issue any commission for examination of any witness [under section 13(4)(v)]. It is also to be stated that Rule 4 in Order XVIII of C.P.C. is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that the Court could examine witnesses or the commissioner appointed by it. The Commission is also empowered to follow the said procedure.

The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if the other side seeks for cross-examination and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and such experts including doctors on affidavits also could reply those questions.

In cases where stakes are very high and still the party intends to cross-examine such doctors or experts, a videoconference could be held or asking questions by arranging a telephone conference and at the initial stage this cost should be borne by the person who claims such a videoconference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time.