Per Hon’ble DR. S.K. Kakade, Presiding Member. 

1. This is a complaint alleging medical negligence filed by the complainant late Smt. Ashwini Shrinivas Pandit from Nagpur, who was a patient herself, against Dr. Shyam K. Babhulkar, a neurosurgeon from Nagpur. The complainant suffered from a brain tumour that was operated upon by the neurosurgeon on 28^th April 2008. Alleging that there was a failure in taking post-operative care on the part of the opponent doctor, the complainant filed a consumer complaint in this commission seeking compensation of Rs.16, 90,000/- towards alleged unfair trade practices by the neurosurgeon, and Rs. 10, 00,000/- towards compensation for permanent disability, with Rs. 2, 00,000/- as litigation expenses.
2. Brief facts of the complaint are as follows:

The complainant Smt. Ashwini Shrinivas Pandit, since deceased, was suffering from pain in left side of her head. She was treated for the said complaint by Dr. Bhave, Dr. Kale, and Dr. Baheti. While in Mumbai in her daughter’s house, she collapsed 6 to 8 times on 6^th of April 2008, she was taken to Lok hospital in Mumbai on 15^thApril 2008. On investigating by MRI of the brain, she was found to have a brain tumour and was diagnosed with a meningioma. After coming back to Nagpur, the complainant consulted Dr. Shyam Babhulkar, neurosurgeon of Central Neurological and Medical Institute, who advised surgery for the removal of the brain tumour. Accordingly, the complainant was admitted to Dr. Babhulkar Hospital and the operation was performed on 28^th of April 2008. The brain tumour was of size 5 inches X 4.5 inches and the neurosurgeon after removing the brain tumour informed that the bone of the skull was very brittle and was not to be reused again, hence even the dura was closed partially and the bone flap was discarded. As per the advice of Dr. Babhulkar, on 12^th May 2008, another operation was performed by which duroplasty (closure of dura) was done and the patient was discharged on 26^th of May 2008. The husband of the patient noticed fluid coming out of the operation site on 7^th August 2008 and immediately informed the neurosurgeon. Dr. Babhulkar visited the home of the complaint-patient and advised to admit the patient immediately. The complainant was suffering from high-grade fever, so the further operation was decided on subsidence of the fever. In another operation, the neurosurgeon performed a VP shunt operation for draining the fluid collected in the brain to the peritoneal cavity. The complaint-patient had to consult the neurosurgeon again on the 22^nd of November 2008 for continuous leaking of fluid from the operation site. Since the VP shunt was blocked, re-operation was performed on the 28^th of November 2008.

3. Meanwhile, as per the advice of the neurosurgeon, physiotherapy of the patient was going on. The complainant was not getting well and on the other hand, her health was continuously deteriorating, hence the family decided to consult another Neurosurgeon, Dr. Pakhmode from Nagpur, who advised a CT scan of the brain. On the 30^th of December 2008, the complainant was admitted in the Getwell Hospital and Research Institute situated at Dhantoli Nagpur. Again the doctor advised and performed a VP shunt operation on the 2^nd of January 2009 since the shunt was again got blocked. Dr.Pakhmode further advised the operation of cranioplasty, which was performed on the 12^th of February 2009. Dr. Pakhmode used Titanium mesh to close the Bony skull defect. The complainant-patient suffered from neuro deficit in the form of left-sided hemiparesis and so gradually she was dependent on others for her daily routine. In due course of time, she was bedridden and was admitted to a Centre for taking care of her daily activities. The complainant further deteriorated and ultimately died on the 10^th of October 2018.
4. Since the complainant-patient suffered after the first operation performed by Dr. Shyam Babhulkar, and gradually her condition deteriorated resulting in her death, a consumer complaint was filed in the year 2016 when the complainant was alive, against the opposite party Dr. Shyam Babhulkar, the neurosurgeon from Nagpur.
5. This complaint was admitted on 25^th April 2016, and notice could not be served duly to the opposite parties, the same was published in the newspaper on 4^th February 2017. This Commission then passed an “ex-parte” order against the opposite parties, on the 22^nd of February 2017, since none appeared for the opposite parties after the notice was published. The application for setting aside the ex-parte order filed by the opposite party was allowed by this Commission on the 20^th of December 2017. Further, the opposite party filed a written statement, and also filed evidence. As per the communication from the commission to the Government Medical College and Hospital, Nagpur, an expert opinion in the form of an inquiry report, dated 17^th March 2018 was filed on record. Based on the findings in the inquiry report that “there is no medical negligence”, this Commission appointed Commissioner on request in an application filed by the complainant. On request and an application filed by the complainant, this Commission passed an order on 11^th October 2018 to appoint advocate Mr. J. Vohra as the Commissioner to record cross-examination of two of the expert committee members Dr. Raj Gajbhiye, Head of Department of Surgery, and Dr. Pramod Giri, the Neurosurgeon. The medical superintendent of the Medical College and Hospital sent a request letter to the commission that, the cross-examination may be conducted at the hospital as, along with the experts, the medical record also would be available. However, on the request of the complainant this Commission issued summons and later on bailable warrant against both the doctors since they failed to attend the cross examination to be conducted in the bar room of the advocate Association. However finally they were available and their cross-examination was recorded. Further the complainant filed a rejoinder. Thereafter the complaint was pending for a long time for the final hearing. We heard the arguments advanced by learned advocates for both sides during the final hearing of this complaint. Perused the record.
6. We heard the rival submissions and arguments advanced by learned advocates of both parties and perused the record.  Considering submissions of advocates for both parties,  record, and scope of the complaint, the following points arise for our determination, and our findings thereon are noted as against them for the reasons herein below:

POINTS:

7. We have reviewed the concept and settled principles in deciding the negligence by highly skilled medical professionals. The concept of medical negligence is being dealt with, with settled principles of the law that govern it. A reasonable degree of care and skill means the degree of care and competence that an "ordinary competent member of the profession who professes to have those skills would exercise in the circumstance in question." The burden of proof is correspondingly greater on the person who alleges negligence against a doctor than a charge of negligence against the driver of a motor car.
8. The liability of a doctor arises not when the patient has suffered any injury, when he is treated in good faith but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. Thus, the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence, once the existence of a duty has been established, the complainant must still prove the breach of duty and the causation. In case there is no breach, or the breach did not cause the damage, the doctor will not be liable. To show the breach of duty, the burden on the complainant would be to first show what is considered reasonable under those circumstances and then that the conduct of the doctor was below this degree.
9. There are distinct definitions for negligence. It is the 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. It must be determined in all cases by reference to the situation and knowledge of the parties and all the attendant circumstances. Conduct that is below the standard behaviour established generally for the protection of others against unreasonable risk of harm is negligence. As per Winfield, “Negligence as a tort is the breach of a legal duty to the care which results in damage, undesired by the defendant, to the plaintiff.” Negligence doesn’t arise just because of wrongful conduct by a person; it is essential that misconduct has caused foreseeable harm to the other. If there’s no harm, there’s no negligence. Damage is an important ingredient to bring negligence under tort.
10. The Hon’ble Supreme Court in the landmark case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, has held that with the best skill in the world, things sometimes go wrong in medical treatment or surgical operation. A doctor cannot be blamed to be negligent simply because something goes wrong or someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way. In the landmark judgment of Indian Medical Association vs. V.P.Shantha, 1996 AIR 550, 1995 SCC (6) 651, JT 1995 (8) 119, 1995 SCALE (6)273 ACT; the Apex Court has decided that the skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the Complainant to prove that a doctor was negligent in the line of treatment that resulted in the life of the patient. It is for the Complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubts.
11. Therefore, keeping the law laid down by the Hon’ble Supreme Court and the principles of medical negligence in mind hereby the present facts and the evidence before us in the present complaint were assessed.

REASONS:

The learned advocate for the complainant referred to the fees paid by the complainant to the opposite party doctor for the medical treatment received by her and the receipt of payment filed on record. Page no.32, document No.4of the complaint compilation. In view of this, since the complainant paid the consideration for the medical service, as per the definition of “Consumer” in the Consumer Protection Act 1986, the complainant is a consumer. We answer POINT No.1 as AFFIRMATIVE.

Learned advocate for the complainant, advocate Mrs. Paunikar, narrated the facts of this case. The complainant was a patient of a brain tumour that was diagnosed in 2008 on an MRI done on 18^th April 2008. After the operation performed by the opposite party Dr. Shyam Babhulkar, the neurosurgeon, the complainant suffered from left side hemiparesis- neuro deficit on the left side of the body, leakage of the CSF (cerebrospinal fluid) from the operation site. Though the VP shunt operation was performed on the 20^th of August 2008, the patient continued to have CSF leak, and the shunt operation was revised at least two times since the shunt was blocked and displaced, it was only after the other neurosurgeon Dr.Pakhmode who performed the third operation of cranioplasty on 15^th February 2009, the leak of CSF stopped. Further due to the deterioration of the general health of the patient, she died in 2018.

Ref. Hydrocephalus: Definition, causes, testing and diagnosis, treatment and prognosis, Article by Dr. Lawrence M. Shuer, MD. FAANS, NREF: Neurosurgery Research & Education Foundation.

15.   According to the learned advocate for the complainant, the patient-complainant suffered from 60% disability after the operation, and the disability certificate dated 9^th February 2010 issued by the authority is placed on record. 
16.  
17. We have carefully gone through these citations. These are as follows,

1. C.Unnen & Anr. vs. C.Sudha & Ors  IV (2010) CPJ 268 (NC)

There is no requirement of expert evidence when report speaks about it. 

2. Dr. Stepheena Fathima Mata Mission Hospital vs. Lilly Josef and Lilly Josef vs. Dr. Stepheena Fathima Mata Mission Hospital   2015 NCJ 46 (NC)

Where the negligence is apparent for more than one count then Doctor cannot take advantage on the basis of “known complications”

3. Masih Hospital & Ors vs Kuldeep & Ors  II (2013) CPJ 340 (NC)

Res ipsa loquitor is one form of circumstantial evidence that permits a reasonable person to surmise that the most probable cause of an accident was the OP’s negligence. Negligence is a breach of duty to take care resulting in damage to one's person or property. However, the Black's law dictionary defines negligence as under,

(iv) Jai Prakash Gupta vs. Dr.Devendra Lal Chandani  2012 (1) CPR 199 (NC)

The state commission to consider the possibility of the continuous cause of action.

4. Subhash Chand vs Jaipur Golden Hospital & Ors  IV (2011) CPJ 536 (NC) 

Continuous cause of action rules out the period of limitation.

5. Kushal Jain & Ors vs Jatinder Gupta (Dr.) & Anr. Revision Petition no. 3219 of 2012 decided on 13th February 2017- NCDRC

Failure of the doctor to assess the condition of the patient properly during the post-operative stage and failure to exercise a reasonable degree of skill and care-Doctor is guilty of negligence.

6. Rashmi Taryon & Anr. vs Noida Medicare Centre Ltd. & Ors.  I (2016) CPJ 228 (NC)

The doctrine of Res ipsa loquitor is applicable when there is gross negligence.

7. Rupak K. Das (Dr.) & Anr. vs Gurnam Kaur & Anr.  I (2018) CPJ 224 (NC)

When a patient has to undergo a series of procedures, the doctor has not taken a reasonable degree of care.

19.  
20. 1. Occurrence and theory of space- occupying cystic lesions after Brain tumor surgery. Korinth MC et al. ZentralbL Neuro Chir. 2001
    2. Shunt Independent Surgical treatment of middle cranial fossa arachnoid cysts in children. Kang JK et al. Child's New Syst. 2000
    3. Shunt independent Surgical treatment of middle cranial fossa arachnoid cysts in children. Joon-Ki Kang et al. Department of Neurosurgery Kanganam St. Mary's Hospital Seoul, 137-040, South Korea
    4. Meningiomas of the Basal Pos Fossa Surgical Experience in 80 cases. Review article- Lobato RD et al. Neuro chirurgia (Astur) 2004
    5. BRAIN SURGERY  Michael L J Apuzzo, MD
    6. Neuro Surgery volume I, 2^nd edition. Robert S. Wilkins, MD. Seti S. Rangachary, MD
    7. Subgaleo-peritoneal shunt: An effective and safer alternative to Lumboperitoneal shunt in the management of persistent or recurrent iatrogenic cranial pseudomeningoceles. Narayan Anantha et al: Neurology India 2013. Volume 61, pages 65- 68

21.     We have gone through the documents on record after hearing the submissions made by the learned advocates of both sides.  Our observations are as follows, 

1. There was an initial delay in seeking medical consultation for the Complaints that the patient was having.  It is only after the serious giddiness resulted in fall, the complainant was taken to a doctor. On investigating, the MRI of the brain showed Brain Tumour and then the complainant consulted a neurosurgeon after coming to Nagpur.
2. Operation for brain tumor was performed by the opposite party neurosurgeon on 28^th of April 2008 and the leak of CSF was observed after around 4 months on 7^th August 2008 for which the neurosurgeon opted for VP shunt operation that was performed on 20^th of August 2008.
3. Further another Neurosurgeon, Dr. Pakhmode was consulted and he performed a cranioplasty operation on 15^th February 2009, after which the CSF leak stopped. We find that the same operation was also advised by the earlier neurosurgeon Dr. Babhulkar.
4. Afterward, the complainant had various complications, including a Neuro deficit in the form of left-sided hemiparesis, and that it was difficult to manage this patient at home. The relatives of the complainant preferred to keep her in Jeevan Suraksha, a hospice and palliative care Centre, where such patients are taken care of.  The complainant-patient was alive for almost the next 10 years and died in the year 2018.
5. After going through the expert Committee report given by Government Medical College at Nagpur, report dated 17^th March 2018, in which the expert committee opined that there was no medical negligence in the treatment provided to the patient by the Neurosurgeon, Dr. Babhulkar.
6. We have carefully gone through the cross-examination conducted by the court Commissioner, of the experts from the expert committee.  The answers given by both the experts reveal that the opposite party neurosurgeon has treated the complainant, according to accepted principles and protocols in the field of Neurosurgery. 
7. The visits by neurosurgeon Dr. Babhulkar, to the complainant’s home, only show that the doctor was careful and he was aware that such a complicated patient with a brain tumor needs constant support and help. 
8. Two of the experts were cross-examined by the learned advocate for the complainant herself, and Court Commissioner was appointed in this case, Adv. Jayesh Vora. The experts appointed to the Government Expert Committee were chased by the advocates and this Commission sent bailable warrants for the experts to attend the cross-examination.  This only discourages any of the experts to come forward and give an expert opinion even if they are willing to do so.  As such consumer case proceedings are always summary proceedings.  And the other side can send questionnaires to the experts for getting answers, for the questions framed by competent advocates representing the party.  In summary proceedings, the procedures like cross-examination are to be discouraged. However, in the present case, the outcome of cross examination was that, the experts came out with the details of accepted principles and practices of treating such patients and that there was no medical negligence in the treatment given by Dr. Babhulkar.  The same outcome is possible after providing a questionnaire to the experts.
9. We find that the complainant was diagnosed to have a brain tumor and the operation for the same involved the removal of the tumour from the brain.  According to the literature provided by the parties, the tumour was a malignant one, equal to cancer in the brain.  The primary disease itself affects very important organs such as the brain controls the movement of the whole body.  According to the Natural History of the brain tumour, the patient suffers from complications even if treated successfully by operation. In the present case, the brain tumour effects on the complainant’s health are significant rather than the effect of the operation. The complainant’s survival in a debilitated condition was due to the brain tumor.  Hence, according to us, it would not be proper to blame the neurosurgeon for operating on the brain tumor of the complainant.

22.       In view of the above discussion, after careful perusal of documents placed on record, the report of the expert committee, the report of the cross-examination conducted, and medical literature placed on record; we come to the conclusion that there was no medical negligence while the complainant- patient of brain tumor was treated by the opposite party neurosurgeon.  The complainant suffered because of the complications of the original disease, i.e.  Brain tumor.  Even the disability that the complainant had, was due to the Brain Tumor and its impact on the body as well as on the musculoskeletal system of the patient.  Thus, we don't find the reason why the opposite party neurosurgeon can be labeled as guilty of deficiency in service for unfair trade practice. We answer POINT no.2 as NEGATIVE.

23. .         AS TO POINT NO. 3:  RELIEFS

In view of the discussions above, we don't find that the complainant, rather the legal heir of the complainant are entitled to any relief in the form of compensation.  On perusal of the record, it can be known that the complainant’s daughter and son-in-law, are surgeons themselves and well settled in foreign countries like the USA.  Despite being from the medical field and understanding the serious nature of the disease called “brain tumor”,  or “meningioma” specifically,  without getting involved in the treatment and the management of the patient,  who was their own relative,   with only interest in getting compensation from their own colleagues /  from the medical field, from India,  needs to be discouraged.  We are of the opinion that the litigation cost for the present complaint needs to be borne by the legal heir of the complainant.  We answer POINT no.3 as NEGATIVE.

24. In view of the discussion above, after examining all the relevant documents, we pass the following order.

ORDER

1. Consumer Complaint is dismissed with a cost quantified to Rs. 50,000/- to be paid by the complainant to the opposite party doctor within a period of two months from the date of receipt of a copy of this order.
2. Copy of this order is to be given to all the parties free of cost.