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Lalan Pandey Vs. Chandeshwar Prasad - (National Consumer Disputes Redressal Commission) (02 May 2019)

Expert opinion is not mandatory while adjudicating a complaint of medical negligence



Challenge in present Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 is to the order passed by the State Commission. By the impugned order, the State Commission has allowed the Appeal preferred by Dr. Chandeshwar Prasad ("the treating Doctor") and set aside the order of the District Forum, thereby dismissing the Complaint.

The District forum based on the evidence adduced allowed the Complaint directing the treating Doctor to pay an amount of 75,000 towards medical expenses and 50,000 towards physical and mental agony and 10,000 towards litigation expenses within 60 days from the date of order, failing which the amount shall attract interest@ 8% p.a.

The Hon'ble Supreme Court in V. Kishan Rao Vs. Nikhil Super Specialty Hospital & Anr., stated that the expert opinion is not mandatory while adjudicating a Complaint of medical negligence. There is no whisper in the Medical Record regarding the reasons for the infection having set in and if this is a known complication what steps have been taken during that period.

Present is a fit case to place reliance on the decision of the Hon'ble Supreme Court in Smt. Savita Garg Vs. Director, National Heart Institute, in which the Supreme Court has laid down that, once a prima facie case is observed, the onus shifts on the Hospital and the treating Doctor to explain as to how a particular condition has occurred and explain the treatment that was rendered to the Patient. The ratio laid down by the Hon'ble Supreme Court in the aforenoted judgement squarely applies to the facts of this case.

The Complainant was admitted in the Nursing Home and was continuously treated by the treating Doctor for almost three months from 28th May, 2003 to 6th August, 2003. Additionally, in the absence of any Medical Record evidencing that the treating Doctor had taken necessary steps during the post-operative period, especially when the X-ray dated 13th July, 2003 depicted infection when the patient was still in the Nursing Home of the treating Doctor, Commission is of view that, there was negligence in the treatment rendered by him, which led to prolonged physical and mental suffering of the Complainant, who underwent several operations and re-plastering.

The order of the District Forum is restored. Present Revision Petition is allowed directing the treating Doctor to pay the amount awarded by the District Forum which is only a meagre amount of 1,35,000.

Relevant : Smt. Savita Garg Vs. Director, National Heart Institute MANU/SC/0882/2004


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