When botched surgery amounts to medical negligence

Consumer activist Jehangir B Gai looks at a recent judgment.

Binu, who was 17 years old, sustained a cut injury on the Achilles tendon of his right leg on July 14, 1997.

He was immediately rushed to the George Varghese Hospital and was operated upon by Dr Ganesh Babu, along with his son, a medical student.

Subsequently, he was discharged on July 19, 1997, but continued treatment as an outpatient.

On August 4, 1997, when Dr Ganesh attempted to make Binu walk, the latter collapsed, and his condition became critical.

The next day, Binu was shifted to the Government Hospital at Pathanamthitta.

Even after being treated, Binu became lame, and his right leg developed a permanent disability.

Binu and his father Soman alleged that the disability was due to Dr Ganesh's negligence, and filed a complaint before the district consumer forum seeking Rs 3 lakh as compensation from the George Varghese Hospital and Ganesh.

The forum got Binu examined by the medical board, which reported that he had 4% permanent disability.

Since the report was silent about whether the disability was due to the injury or due to negligence, the board was asked to clarify.

The board said proper treatment had not been given by Dr Ganesh, but concluded that the disability was due to injury and not due to negligence.

So the forum dismissed the complaint.

Binu appealed to the Kerala state commission, which noted that the board had not given any reason to support its conclusion.

It set aside the forum's order and directed the hospital to pay Rs 1 lakh as compensation and Rs 10,000 towards litigation cost.

The hospital questioned this order in a revision petition.

The commission noted that Binu had subsequently been shifted to the Government General Hospital whose doctor had examined him and given him a certificate in which it was stated that the previous surgery had not been performed adequately.

On the other hand, the medical board comprising of three expert doctors had concluded that the disability was not due to negligence.

The dilemma was, which should be believed -- the certificate of the treating doctor, or the medical board's report.

The commission noted that since the board had been constituted on a request made by the forum, its report would prevail over the certificate of the treating doctor.

Accordingly, by its order of October 21, 2019, delivered by Prem Narain, the national commission accepted the medical board's report.

The commission concluded that Dr Ganesh had been negligent while treating Binu at the George Varghese Hospital.

It observed that this negligence had necessitated a second surgery, but there was no evidence to show that it was the cause of the disability.

So compensation was reduced to Rs 50,000, with 9% interest from September 27, 2011 (the date of the decision of the State Commission), till payment.

The order for payment of costs of Rs 10,000 was maintained.

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