Anoop Kumar Mendiratta, Member

Present revision petition has been preferred by complainant / petitioner against Order dated 24.08.2023 passed by the Ld. State Commission whereby appeals preferred on behalf of OP-1 Dr. N.N.Khanna, surgeon and OP-3 Mata Anandmai Hospital were allowed thereby setting aside the award of damages granted by the Ld. District Forum for alleged medical negligence during operation for hernioplasty undertaken by the complainant. Also separate appeal preferred on behalf of the complainant challenging the Order passed by the Ld. District Forum was dismissed.

The petitioner and respondents are hereinafter referred as complainant / opposite parties as appearing in the complaint, for sake of convenience.

2. The facts fall within a narrow compass. Complainant got admitted at Mata Anandmai Hospital (OP-3) on 22.07.2009 for operation of hernia after coming to know that Dr. N.N. Khanna (OP-1), a renowned Surgeon was offering charitable services free of charge. As per case of the complainant, during surgery Dr. Sudhir Srivastava/OP-2 (since deceased), administered anaesthesia in between L4-L5 spine area instead of the spinal cord which resulted in damage to the nerves. Consequently, post-operation, complainant developed complications and foot drop owing to negligence during operative procedure. It is further the case of the complainant that she never suffered any pain in the legs prior to operation but at the time of discharge she was unable to move due to foot drop and experienced severe pain in her legs. Complainant, thereafter, again visited the hospital on 04.08.2009 and 14.08.2009 for getting herself examined by (Dr. N.N.Khanna I OP-1 and remained under his treatment. OP-1 assured the complainant that she would be fine and able to walk in normal position and prescribed neuropathic medicines for relief of pain.

3. It is further the case of complainant that since she did not get any relief from pain, she consulted Dr. S.K. Poddar, Neurologist on 22.08.2009 who confirmed 'foot drop in the right leg.' Complainant also undertook MRI at Arihant Diagnostic Centre for diagnosis. Further she consulted Dr. Avinash Chander Singh, who confirmed that spinal anaesthesia administered during hernioplasty was the cause of her present situation and thereafter consulted Dr. S.K.Mishra (neurologist). Complainant claims to have suffered 45% disability owing to negligence during the operation for hernia.

4. The complaint was allowed by the ld. District Forum Varanasi vide Order dated 11.10.2013 holding the opposite parties namely, Dr. N.K. Khanna, surgeon (respondent no. 1 herein / opposite party no. 1 in the complaint), Dr. Sudhir Srivastava (opposite party no. 2 in complaint) and Mata Anandmai Hospital (respondent no. 2 herein / opposite party no. 3 in the complaint), jointly and severely liable to pay compensation of Rs.5,00,000/- along with cost of Rs.3,000/-. The amount was further apportioned between the respective OPs.

5. Aggrieved against the afore-said Order dated 11.10.2013 passed by the Ld. District Forum separate appeals no. 2405 of 2013 and 2481 of 2013 were preferred before the State Commission by Dr. N.N.Khanna (OP-1) and Mata Anandmai Hospital (OP-3). The Order passed by the Ld. District Forum was also challenged by the complainant before the State Commission vide appeal no. 2519 of 2013.

6. Ld. State Commission vide impugned Order dated 24.08.2023 allowed the appeals preferred by OP-1 and OP-3 and thereby directed the dismissal of complaint as noticed above. Further the appeal preferred by the complainant also stands dismissed.

Aggrieved against the same the present revision petition has been preferred by the complainant.

7. Dr. N.N. Khanna / OP-1 took a stand that hernioplastic surgery was successfully performed without any lapse. The allegations of foot drop by the complainant owing to any negligence in surgery were denied. The complainant is stated to have been discharged after she had fully recovered. It was further pointed out that the allegations primarily were attributed against Dr. Sudhir Srivastava (Anaesthetist) I OP-2 and he had been wrongly framed in the complaint.

8. Dr. Sudhir Srivastava (Anaesthetist) / OP-2 submitted in written version that anaesthesia had been correctly administered and the operation had been successfully performed. The procedure is stated to have been followed as per medical norms.

9. Mata Anandmai Hospital I OP-3 submitted that medical services were rendered free of charge and specialists were engaged for afore-said purpose. Allegations of negligence or any deficiency in service on part of Hospital were vehemently denied.

10. Ld. counsel for complainant submits that medical negligence is apparent on face of record since the complainant suffered footdrop and consequent disability post hernioplasty, due to negligence in administering anaesthesia by Dr. Sudhir Srivastava/OP-2. He submits that prior to operation, complainant had never suffered any pain or disability and prescription of neuropathic medicines by Dr. N.N. Khanna / OP-1 for relieving of pain reflects his complicity and knowledge of negligence during operation. He emphasizes that complainant was unable to move the foot immediately after operation and footdrop was confirmed on consulting Dr. S.K. Poddar, Dr. Avinash Chander Singh and Dr. Surinder Mishra, neurologists. The Order passed by the Ld. State Commission is assailed on the ground that material points and written submissions were ignored discharging the concerned doctors. He further contends that disability suffered by complainant is apparent and in the facts and circumstances, no expert opinion is required. Reliance is further placed upon V. Kishan Rao Vs. Nikhil Super Speciality Hospital, (2010) 5 SCC 513. Relying upon Maharaja Agrasen Hospital & Ors. Vs. Master Rishabh Sharma, (2020) 6 SCC 501, he further submits that Mata Anandmai Hospital / OP-3 is vicariously liable for the acts of negligence committed by the doctors engaged by the hospital.

11. On the other hand, Ld. counsel for OP-1 supported the Order passed by the Ld. State Commission. He pointed out that allegations in the complaint are primarily attributed against Dr. Sudhir Srivastava (Anaesthetist)/OP-2 for having administered the injection in L4-L5 spine, and no negligence is attributed on part of Dr. N.N. Khanna (surgeon) / OP-1. He further submitted that expert opinion had not been led on behalf of the complainant to prove, if the alleged foot drop, had been on account of any negligence in administrating anaesthesia by Dr. Sudhir Srivastava. He emphasized that evidence of none of the doctors who had been consulted by the complainant has been led on record to prove that the foot drop was consequent to any negligence in the operative procedure. Ld. counsel submits that complainant was discharged in a normal condition after the surgery and the prescription of medicines for neuropathic pains is in routine for relief of pain. It is pointed out that the complainant was diabetic as per the reports placed on record and neuropathic pains is a normal process depending upon age and ailments, if any, suffered by patient.

12. The issue for consideration is whether OP-1 and OP-2 exercised reasonable skill in operating the complainant as per accepted medical standards or were negligent in providing the requisite standard of medical care, thereby amounting to medical negligence and warranting interference by this Commission.

13. We have given considered thought to the contentions raised and perused the record carefully.

It may be beneficially observed that Bolam v. Friern Hospital Management Committee (Queen's Bench Division), English Law (1957) 1 WLR 582, as approved by the Hon'ble Apex Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, authoritatively settles the proposition that a doctor is not negligent, if he is acting in accordance with acceptable norms of practice unless there is evidence of medical body of skilled persons in the concerned specialty opining that the accepted principles/procedures were not followed. Accordingly, medical professional can be held liable for negligence, if he fails to exercise reasonable skill which he possesses in giving the treatment or in case he does not possess the requisite qualification or skill.

14. Following Jacob Mathew v. State of Punjab (supra), Hon'ble Apex Court in Kusum Sharma v. Batra Hospital, (2010) 3 SCC 480 laid down the principles to be considered while determining the charge of medical negligence, which stand reiterated in M.A. Biviji v. Sunita, (2024) 2 SCC 242 -

                          '89. ... (I) Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

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                          (III) The Medical Professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

                          (IV) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

                          (V) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of another professional doctor.

                          (VI) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

                          (VII) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

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                          (IX) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.'

15. Before we proceed to analyse the case on merits, it is pertinent to note that the Hon'ble Apex Court in M.A. Biviji v. Sunita & Ors. (supra) cautions, that to hold a medical practitioner liable for negligence, a higher threshold limit must be met. This is to ensure that doctors are focused on deciding the best course of treatment as per their assessment rather than being concerned about possible prosecution or harassment that they may be subjected to, in high-risk medical situations. Therefore, to safeguard medical practitioners and to ensure that they are able to freely discharge their medical duty, a higher proof of burden must be fulfilled by the complainant. The complainant should be able to prove a breach of duty and the subsequent injury being attributable to the aforesaid breach. On the other hand, doctors need to establish that they had followed reasonable standards of medical practice.

16. Further, in Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCO 221 Hon'ble Apex Court observed that charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error of judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis.

17. Reverting back to the facts of the case, the burden lies on the complainant to prove that OP-1 & OP-2 failed to exercise reasonable skill in the surgical process which resulted in consequential damage to the nerves and foot drop. A mere error of judgment or an accident may not, by itself, be sufficient to prove negligence on the part of the medical professional so long as the doctor followed the acceptable practice in discharge of his duties in rendering the treatment to the patient.

18. It may be observed that foot drop, is a general term used for difficulty in lifting the front part of foot and indicates sign of underlying neurological, muscular or anatomical problem. The most common cause of foot drop is compression of a nerve in the leg (i.e. peroneal nerve) that controls the muscles involved in lifting the foot. A nerve root injury may also cause foot drop and patients with diabetes are more susceptible to nerve disorders. The same may also be caused due to various forms of muscular dystrophy or the disorder that affect spinal cord or brain.

19. Apparently, complainant in the present case has failed to adduce opinion of any medical expert or cogent evidence to prove that foot drop, as alleged, was due to negligence in administration of anaesthesia in L4-L5 area of spine. Merely on the basis of consultation/treatment undertaken by the complainant with Dr. S.K. Poddar, Dr. Avinash Chander and Dr. Surendra Mishra, it cannot be assumed that the foot drop was consequent to negligence in operative procedure. There is no finding in this regard in the prescriptions relied by the complainant, nor any of the said specialists was examined by the complainant. The prescriptions and treatment undertaken by the complainant merely demonstrate that the complainant suffered from some complications, which she claims to have occasioned post-hernioplasty. It cannot be ignored! that both the doctors, Dr. N.N. Khanna, stated to be now above 90 years as well as Dr. Sudhir Srivastava, anesthetist (since deceased) had the requisite professional qualifications, expertise and experience for undertaking the surgical operation for hernioplasty.

20. In order to prove that Dr. Sudhir Srivastava did not follow accepted mode of practice in administering anaesthesia or in performing surgery, the opinion of medical expert is imperative. Merely prescription of drugs for neuropathic pains to the complainant, does not, reflect that the concerned Surgeon (OP-1) was aware of the negligence, as attributed by the complainant. The unfortunate aggravation of foot drop after the operative procedure cannot by itself be a ground to impute negligence and the same could be for other reasons. Drugs for neuropathic pain may be prescribed for relieving pain in post-operative cases or for other medical reasons when condition cannot be resolved by treating underlying cause which includes first line options like anticonvulsants (e.g. gabapentin). The prescription of such drugs does not in any manner lead to an inference that OP-1 & OP-2 were negligent in operative procedure or failed in duty to take care of the complainant, as attributed by the complainant.

21. For afore-said reasons we do not find any grounds to interfere in the impugned order passed by the Ld. State Commission.

Revision Petition is accordingly dismissed. Pending applications, if any, also stand disposed of. No order as to costs.

A Copy of this Order be provided to both the parties, by the Registry.