ramesh chandra agarwal vs regency hospital ltd sc 2009 expert opinion can not be accepted without...

8/13/2019 Ramesh Chandra Agarwal vs Regency Hospital Ltd Sc 2009 Expert Opinion Can Not Be Accepted Without Examina

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pro3ided the appellant some relie'" but le't him handicapped due to

his legs being rendered useless and loss o' control o3er his -ladder

mo3ement.

*/ COMPLAINT BEFORE THE NATIONAL COMMISSION The appellant" being

impaired by the treatment" 'iled a complaint be'ore the ational

Consumer !isputes Redressal Commission 4hereina'ter re'erred as

8ational Commission;/ alleging medical negligence on the part o'

respondents $ to *.

The claim o' the appellant be'ore the ational Commission was as

under 0

i/ That the correct method o' operating his in'ection was the

Antero-Lateral Decompression (ALD)and notLaminectomy.

ii/ That the complainant1appellant contends that he was 2ept only

'or one wee2 on the Anti6Tubercular drugs be'ore the surgery

which is a much shorter duration than the accepted medical

practice.

iii/ That there was no re>uirement o' immediate surgery.

i3/ That the respondent no.%" who was a eurosurgeon did not

consult the Orthopedic surgeon" e3en though he was not

capable to handle the case o' complainant1appellant without

consulting Orthopedic surgeon.

Hence" it was claimed that there is gross negligence and carelessness

on the part o' the respondents in treating the complainant1appellant"

*


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and there'ore" respondents be directed to pay a sum o' Rs. %%",,",,,16

with interest at the rate o' %9? per annum to the complainant.

!" NATIONALCOMMISSIONJUDGMENT

A'ter considering the case presented by the appellant and the

respondents and loo2ing through the a''ida3its 'iled by the parties" the

ational Commission has come to the conclusion that medical

negligence is not pro3ed against the respondents. The Commission

has concluded0

85edical negligence is when a doctor did something

which he ought not to ha3e done or did not do what he

ought to ha3e done. The doctors were >uali'ied

pro'essionals. They did whate3er was re>uired to be

done o' euro67urgeons.


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contended that pursuant to the order passed by the Commission dated

+.$.%,,," the appellant had submitted all the records relating to his

treatment on 9.%.%,,, and had re>uested the Registry o' the

Commission to 'orward the same to !r. A.B. 7ingh" eurologist" who

had been re>uested to o''er his opinion on the surgery done to the

appellant. Howe3er" the Registry had not sent the documents

'urnished by the appellant to the e@pert and" there'ore" the e@pert

could not o''er his opinion and thereby" the appellant was denied the

bene'it o' ha3ing an opinion which would ha3e pro3ed his case be'ore

the Commission.

/ The respondents in their counter a''ida3it 'iled be'ore this court" ha3e

denied the assertions and allegations made by the appellants and 'urther

usti'ied the udgment o' the ational Commission.

/ De ha3e heard the learned counsel 'or the parties to the lis.

(/ POTT*SDISEASEANDPROTOCOLOFTREATMENT

i) The Disease

#ottEs disease results 'rom an in'ection o' the bone by the

5ycobacterium Tuberculosis bacteria 3ia a combination o'

hematogenous root and lymphatic drainage. The organism may stay

dormant in the s2eletal system 'or an e@tended period o' time be'ore

the disease can be detected.

+


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its location and other characteristics. -ac2 pain associated with the

lumbar spine 3ery o'ten a''ects the patientEs ability to mo3e" and the

muscles o3erlying the a''ected 3ertebrae may 'eel sore or tight. #ain

resulting 'rom hea3y li'ting usually begins within %9 hours o' the

o3ere@ertion. 5ost patients who do not ha3e a history o' chronic pain

in the lower bac2 'eel better a'ter 9 hours o' bed rest with pain

medication and either a heating pad or ice pac2 to rela@ muscle

spasms.


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Ors./ FCriminal Appeal os. $$($6$$(9 o' %,,+ alongwith Ci3il

Appeal o. $% o' %,," decided on ..%,,(G.

uestion in3ol3ed is

assumed to be not within the court:s 2nowledge. Thus cases where the

science in3ol3ed" is highly specialiIed and perhaps e3en esoteric" the

central role o' e@pert cannot be disputed. The other re>uirements 'or

the admissibility o' e@pert e3idence are0

i/ that the e@pert must be within a recogniIed 'ield o' e@pertise

ii/ that the e3idence must be based on reliable principles" and


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iii/ that the e@pert must be >uali'ied in that discipline.

F7ee =rrors" 5edicine and the Law" Alan 5erry and Ale@ander

5cCall 7mith" %,,$ ed." Cambridge Jni3ersity #ress" p.$G

$%/ 7ection 9+ o' the


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7ection 9+ o' the =3idence Act which ma2es opinion o' e@perts

admissible lays down" that" when the court has to 'orm an opinion

upon a point o' 'oreign law" or o' science" or art" or as to identity o'

handwriting or 'inger impressions" the opinions upon that point o'

persons specially s2illed in such 'oreign law" science or art" or in

>uestions as to identity o' handwriting" or 'inger impressions are

rele3ant 'acts. There'ore" in order to bring the e3idence o' a witness

as that o' an e@pert it has to be shown that he has made a special

study o' the subect or ac>uired a special e@perience therein or in

other words that he is s2illed and has ade>uate 2nowledge o' the

subect.

$9/


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the conclusions so as to enable the Kudge to 'orm his independent

udgment by the application o' these criteria to the 'acts pro3ed by

the e3idence o' the case. The scienti'ic opinion e3idence" i'

intelligible" con3incing and tested becomes a 'actor and o'ten an

important 'actor 'or consideration along with other e3idence o' the

case. The credibility o' such a witness depends on the reasons stated

in support o' his conclusions and the data and material 'urnished

which 'orm the basis o' his conclusions. 47ee 5alay Bumar anguly

3s. !r. 7u2umar 5u2heree and Others/ FCriminal Appeal os.

$$($6$$(9 o' %,,+ alongwith Ci3il Appeal o. $% o' %,,"

decided on ..%,,(G.

$)/ uestion put to him.;

$$


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$/


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$(/ The Commission by its order dated ).*.%,,, had re>uested !r. A. B.

7ingh" eurologist" to gi3e his opinion on the surgery done in this

case.


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%*/ The Commission in course o' its udgment has obser3ed 8that in

spite o' opportunity being gi3en" the complainant and his wi'e did

not o''er themsel3es 'or the cross e@amination and they ha3e 'ailed

to supply material to !r. A. B. 7ingh as mentioned in his report

dated $(.,.%,,," which could ha3e enabled him to gi3e a more

complete report. Also no e3idence o' any e@pert was led by the

appellant. or that matter none o' the parties 'iled any literature on

the subect to support their contentions in spite o' gi3ing them an

opportunity.;

%9/


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$.(.%,,$" bringing to the notice o' the Commission the lac2 o' care

shown by the Assistant Registrar" who had 'ailed to 'orward the

records o' the treatment to the e@pert" and had re>uested to send the

records 'or reconsideration. This application was reected by the

Commission holding that the reconsideration o' the e@pert opinion at

this stage is not necessary.

%+/ The Commission while rendering its udgment has 'ailed to

appreciate that in such cases e@pert would not be in a position to

'orm a true opinion i' all the documents pertaining to the matter" on

which the opinion is desired" are made a3ailable to him. The

Commission on the application made by the appellant should ha3e

again directed 'or the e@pert opinion a'ter ma2ing all the records o'

the treatment a3ailable to the e@pert. The appellant should not su''er

'or the negligence o' the Assistant Registrar and also when the

Commission has itsel' stated in its udgment that supply o' material

to !r. A. B. 7ingh could ha3e enabled him to gi3e a more complete

report.

%)/


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the e@pert" by 'iling an application be'ore the Commission dated

$.(.%,,$. This application was reected by the Commission holding

that the reconsideration o' the e@pert opinion at this stage is not

necessary. uested to pass 'resh order in accordance with law. o order as

to costs.

$


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J.

G.S. SINGHVI 3

J.

H.L. DATTU 3

N%4 D%)'&,

S%(t%/%6 11, 2009.

$

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