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Consumer Protection Act and Medical Profession

Interesting Cases

The ‘Bolam’ test electro convulsive therapy

Mr. Bolam was advised electro convulsive therapy for mental illness. He was however, not warned of the risks of fractures involved in the treatment. There were two bodies of opinion. One preferred the use of relaxant drugs. Using relaxants, the patient sustained dislocation of both hip joints with fracture of pelvis. The doctor was not held negligent because he acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that art.

The ‘Bolam’ principle implies that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice, has been accepted by House of Lords as applicable not only to diagnosis and treatment but also to advice and warning. A doctor is not liable for taking one choice out of two for favouring one school rather than another. He is only liable when he falls below the standard of a reasonable component practitioner in this field, so much so that his conduct may deserve censure.

Alleged removal of testes

In the case of Tarun Kumar Pramanik v. Dr. Kunal Chakraborty & Ors the complainant alleged that during operation for left inguinal hernia his left testis was removed negligently and without consent. On account of this suffered and has become handicapped.

The State Commission on the basis of evidence placed on record, and opinion of expert witness held that the removal of testis was done of expert witness held that the removal of testis was done to avoid gangrenous infection, operation was done with reasonable care and skill and had not resulted in any handicap.

Complainant was held to be vexatious and complainant liable to pay cost of 1st opposite party.

Stricture urethra

In the case of Jayantilal Govindlal Parmar v. Managing Trustee & Ors, the complainant was operated for gall stones, but subsequently he developed stricture near the bulbous urethra due to which he could not enjoy sex and could not pass urine easily. He ultimately had to be operated at a Urological Hospital for relief and heavy amount had to be spent due to negligent performance of his first operation. The State Commission observed as under and the complaint was dismissed.

“There is absolutely no evidence to establish that there was any negligence on the part of the opponent in performing the operation o July 30, 1992 and that it was a result of such negligence that second operation became necessary on account of negligence in performance of first operation… There is no certificate of the doctor of Urological hospital at Nadiad wherein it is alleged to have been stated that second operation became necessary on account of first operation on record. In absence of nay expert evidence, we cannot hold the opponent guilty of negligence in performance of the first operation. We also do not see any reason to disbelieve the statement made on oath by he opponent who has not been cross-examined. The opponent has stated that he had performed the operation on the complainant carefully and that the complainant had not complained of pain when he was discharge from the hospital and thereafter. There is also some force in the opponent’s submissions that if the complainant was suffering from intense pain as alleged by him, he would not have waited for seven months to consult Dr. Rajaguru.

There is nothing in the documentary evidence place on record which should support the allegations made by the complainant”.

Removal of testes

In the case of Harjivanbhai Khoda Bhai Gohil v. Dr. Yogendra D Shah the complainant was operated for hernia and fistula by the opposite party. It was alleged that during surgery the opposite party removed his left testis along with its blood vessel without consent.

The State Commission held that the case papers of the complainant reflected that the wound had healed well. Also, the consent very clearly mentioned the permission for removal of testis. The operation conducted subsequently by Dr. Parikh was for some other problem and not for nay defect in the surgery conducted by the opposite party. The complainant had also not cared to get expert witness of Dr. Parikh or any other expert witness, through he had enough time and opportunities.

Cost of Rs.5000/- awarded to Dr. Shah (opposite party) for ill-conceived complaint.

Prostate biopsy

In the case of Pyare Lal Verma v. Dr. A.K. Gupta & Ors. The complainant, aged 72 years was advised surgery enlarged prostate by the opposite party. He was referred to Dr. Neeraj Nagpal, MD to opine about fitness to undergo surgery, who however, after necessary tests opined that there was no active contraindication for TUR surgery. After surgery, the prostate gland pieces removed were sent for biopsy report to Dr. Mrs. B.K. Aikat, who stated that there was benign hyperplasia of the prostate and no malignancy was seen. Subsequently, the complainant developed complications and after 6 months during review of the biopsy slides at the PGI it was discovered that the prostate was cancerous.

The Commission held that there is nothing whatsoever to indicate Dr. Nagpal’s pre-operative opinion was palpably wrong or patently negligent. It was also conceded before the Commission that there inevitably would be chemical changes in the slides by the mere passage of time and dependent on the manner and method by which they were preserved, if at all. The Commission also held that a variation of exert medical opinion cannot be labeled as negligence.

Amputation of penis

In the case of C. Sivakumat v. Dr. Jalin Arthur & Anr the complainant, a 23 years old boy approached Dr. John for blockage in passage or urine (phimotic penis) who took him another clinic for operation. After the operation there was over-bleeding from the penis and ultimately he had to admitted to Jipmer Hospital. The hospital authorities reported the matter to the police. Here he came to know that his penis had been cut off (amputated) and only a small stump had been left, and he was passing urine only through an artificial hole made at Jipmer Hospital. He, in the process, had become permanently impotent.

Compensation of Rs.8lakhs was awarded to be paid by the first opposite party.

Torsion Testis

Negligence in diagnosis and treatment of a case of torsion testis as ‘orchitis leading to gangrene of the testis. The commission held that mistaking torsion for orchitis in itself does not constitute negligence because the symptoms of the two mimic each other. There was also evidence that the patient was suffering from the disease for 4 to 5 days prior to admission and as such performing surgery would still not have save the testis. The complaint was dismissed.

Chronic Renal Failure

Alleged negligence in a case of chronic renal failure requiring kidney transplantation who has infection in thigh at the site of veinflon insertion through which dialysis was repeatedly being performed. There was an arteriovenous fistula formation and gangrene leading to amputation of the leg and later death. The opposite did not appear in court. Allegations made by the complainant were duly supported by the sworn affidavit of the expert witness Dr. Prakash Tathed who has an extensive experience in this field. A compensation of Rupees two lakhs was allowed.

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