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Orthopaedic
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  • Ashok
    Kumar v. Dr. Suresh Sharma


    1 (2001) CPJ 478

       

    Consumer protection Act -, 1986 -
    Section 14(1)(d) – Medical Negligence
    – Compensation claimed – Fractured
    pieces repaired – Plaster changed
    twice – Complainant still to go under
    further treatment – No expert evidence
    produced to prove negligence of
    opposite party – Treatment not against
    prescribed norms under medical
    jurisprudence – Complainant not
    entitled to any compensation.

       

    Held : Admittedly, no expert has been
    produced by the complainant to prove
    negligence of the opposite party.
    After removal of the plaster, it was
    discovered that lower portion of
    patella had not united with the rest
    of the patella. Plaster was changed
    twice on 18.11.1996 and on 18.12.1996
    and the complainant had approached the
    opposite party for follow up action on
    2.3.1997 and 5.12.1997 respectively.
    The complainant was still to undergo
    further treatment by the opposite
    party by way of removal of wire and
    removal of cause pain and problem to
    the complainant, even after removal of
    the wire. He stopped getting further
    treatment from the opposite party
    after removal of the wire, as advised.

       

    Thus, it cannot be said with
    exactitude that treatment of the
    complainant by the opposite party was
    against the norms prescribed under the
    medical jurisprudence or that the
    opposite party in any way was
    negligent or deficient in performance
    of his duties. We, thus, do not find
    any infirmity in the order of the
    District Forum.

       

    RESULT : Appeal dismissed.

      

    ORDER :

    Mr. Justice H.S. Brar, president -
    Brief facts as stated in the
    complainant are that on 9.10.1996
    complainant was going on his scooter
    when he met with an accident, as a
    result of which his left knee joint
    patella got fractured into pieces.
    Complainant had consulted the opposite
    party (hereinafter called O.P.) and
    hired the services for treatment as
    opposite party had assured cent
    percent healing of patella and the
    restoration of normal functioning of
    the leg. During the course of
    treatment, the opposite party operated
    upon the left knee joint patella
    portion on 9.10.1996. The complainant
    remained admitted in his hospital up
    to 18.10.1996. The injured leg of the
    complainant was put under plaster. A
    wire was also inserted to join and
    unite the broken pieces of patella. It
    is then stated in the complaint that
    after removal of plaster, it was
    discovered that the lower portion of
    patella had not united with the rest
    of patella and thus it was causing
    constant pain and movement of the
    complainant was also restricted and
    painful. It is then stated in the
    complainant that after sometime the
    complainant again contacted opposite
    party and complained of pain in the
    knee joint. Opposite party advised him
    to undergo another operation. The
    complainant then consulted another
    Orthopaedic Specialist, Dr. Rajiv
    Saigal, who told him that during the
    operation conducted by the opposite
    party the lower portion of the patella
    was not united with rest of the
    patella and it was causing pain and
    restricted ,movement of the ;eg and
    that is why the normal 
    functioning of the leg had not been
    restored. The complainant had been
    consulting the opposite party
    constantly and making complaint of
    pain and painful movement. The
    opposite part used to prescribe
    painkillers. It is then alleged in the
    complaint that the opposite party was
    negligent in rendering medical service
    to the complainant and failed to
    observe the standards of medical
    proficiency required of him. The
    opposite party had failed to unite the
    lower part of patella with rest of its
    part. The circumferential wire was not
    also properly inserted. The
    complainant was not properly medically
    treated by the opposite party. The
    opposite party was, thus , deficient
    in providing service to the
    complainant . Rs. 15,00/- was claimed
    as spent on the treatment. Further
    compensation of Rs. 35,000/- was
    demanded due to sufferance of business
    etc.

      

    2.  In reply filed by
    opposite party , it is stated that the
    complainant was brought by his family
    members in his hospital on 9.10.1996
    for treatment of his injured left knee
    region. 

      

    3.  Admittedly no expert
    has been produced by the complainant
    to prove negligence of the opposite
    party. After removal of the plaster,
    it was discovered that the lower
    portion of patella had not united with
    the rest of the patella. Plaster was
    changed twice pm 18.11.1996 and on
    18.12.1996 and the complainant had
    approached the opposite party for
    follow up action o 2.3.1997 and
    5.12.1997 respectively. The
    complainant was still to undergo
    further treatment by the opposite
    party by way of removal of wire and
    removal of lower fragment of patella
    in case it continued to cause pain and
    problem to the complainant, even after
    removal of the wire. He stopped
    getting further treatment from the
    opposite party after removal of the
    wire, as advised. 

      

    4.  Thus it cannot be said
    with exactitude that treatment of the
    complainant by the opposite paarty was
    against the norms prescribed under the
    medical jurisprudence or that the
    opposite party in any way was
    negligent or deficient in performance
    of his duties. We, thus, do not find
    any infirmity in the order of the
    District Forum.

    Consequently, this appeal is
    dismissed; however without any order
    as to costs.

    It may be mentioned here that the
    complainant may take recourse to any
    other remedy provided to him under the
    law, if so advised.

       

    Appeal dismissed.

               

  • Amir
    Ali Shakil v. St. John’s Medical
    College Hospital, Bangalore



    1996(1)
    CPJ 169: 1995 (3) CPR 174 (Karnataka
    SCDRC)

      

    The youngest son of the complainant
    met with an accident and was taken to
    St. John’s Medical College Hospital,
    Bangalore at about 6 PM was alleged
    that due to delay in providing
    treatment he died early next morning
    at 4 am. The State Commission held
    that the injured came to St. John’s
    Medical College Hospital by about 6.15
    PM and he was taken into the operation
    theatre for necessary operation by
    about 7.40 PM. During this period of
    an hour and 25 minutes, IV fluid was
    given, blood grouping and cross
    matching was done, X-rays were taken,
    Neuro surgeon was consulted, 19 units
    of blood was arranged and then patient
    was prepared for the operation and the
    operation was performed. Reasonable
    delay in shifting the accident case to
    the operation theatre is not negligent
    delay and the complaint was dismissed.

       

  • Lekhraj
    v. Bharaj Nursing Home & Anr


    1998
    (2) CPJ 335 (Punjab SCDRC)

      

    The complainant suffered injuries
    while going on a scooter at about 5.30
    p.m. on 11.7.1995. He was taken first
    to a Primary Health Centre and from
    there was referred to Civil Hospital.
    The patient reached Bharaj Nursing
    Home of the opposite party at about
    8.30 p.m. on that very day. This would
    show that about three hours’ time
    had already elapsed when the opposite
    party examined the patient. Since the
    patient was in shock, blood pressure
    was unrecordable because of the two
    fractures – one on the arm and other
    on the leg – and there existed a big
    haematoma on account of injury to the
    vessel in the leg, treatment to
    stabilize the patient by administering
    fluids through intravenous route
    coupled with some medicines was
    required and given. Support to the leg
    was also provided. Since the patient
    was in shock it was not considered
    necessary to have X-ray immediately.
    Some time must have been taken for
    clinical examination of the patient
    and for providing aforesaid treatment
    as expressed by experts. It was
    necessary to allow the patient to come
    out of the shock. It is futile to
    argue as suggested by the counsel for
    the complainant that immediately at
    8.30 p.m. doctor of the opposite party
    should have referred the patient to
    C.M.C. as the opposite parties could
    provide no treatment for the vessel
    injuries. There is fallacy in this
    argument. The attempt of every doctor
    initially would be to bring the
    patient out of shock and thereafter to
    decide about the nature of treatment
    to be given. Journey to Ludhiana from
    Hoshiarpur even by road would have
    taken about two hours. By that time
    obviously the maximum period of six
    hours as referred to in the books for
    providing treatment to the vessel
    injuries would have expired and the
    damage ultimately caused to the
    patient of amputation of the leg could
    not have been attributed to any act on
    the part of the opposite parties. In
    the context of negligent act on the
    part of the opposite parties, it was
    further argued that even in the
    morning at the time of referring the
    patient to C.M.C., Ludhiana the
    condition of the patient was still
    under shock. It had been explained
    that blood pressure at that time was
    recorded and before the time
    requisition for blood had already been
    made. It was also the part of the
    treatment. The amputation of leg was
    not on account of negligent act on the
    part of the doctor but in fact was on
    account of injuries suffered. The
    complainant had thus utterly failed to
    prove negligence of the opposite
    parties in the matte of providing
    treatment or in the matter of alleged
    delay in referring the patient to
    C.M.C., Ludhiana.

      

    In view of the fact that the
    complainant had failed to prove
    negligent act on the part of the
    opposite parties it was not considered
    necessary to decide to how much amount
    of compensation the complainant would
    have been entitled to.

         

  • Sachin
    Agarwal alias Vicky (through guardian)
    v. Dr. Ashok Arora


    1993(1)
    CPJ 113 (Haryana SCDRC)

     

    The complainants met with an accident
    and factured his left femur.
    Compression plating was done by the
    opposite party. After three months,
    the bone again broke from the same
    place and it was alleged that this
    occurred due to the negligent
    operation performed. The State
    Commission held that the hospital
    records of the hospital where he was
    taken after he suffered belied the
    version that the plate had broken on
    its own fracture a second time. The
    hospital record clearly mentioned that
    he was admitted after he fell down on
    the floor. No proper evidence was
    adduced to support his allegation that
    compression plating on a child of 13
    years should never be done. Complaint
    was dismissed with costs of RS.
    2000/-.

      

  • Akhil
    Bhartiya Grahak Panchyat and Anr. v.
    Dr. Jog Hospital


    1993(2)
    CPR 252 1993(3) CPJ (Mah. SCDRC)

      

    The complainant, a working woman was
    operated upon for decompression of the
    spinal cord. She had been operated
    upon 10 years ago for the same ailment
    and had been suffering from pain in
    her left leg and waist since her first
    operation. In the complaint it was
    alleged that she continued to suffer
    from pain even after the operation
    because of negligent performance of
    operation.

      

    The State Commission held that the
    complainant had failed to establish
    negligence and also the claim of
    having paid Rs.40000 as fees was not
    established. Complaint was dismissed.

       

  • R.
    Gopinathan v. Eskaycee Medical
    Foundation Pvt. Ltd. owning
    Devaki
    Hospital & Anr.

    1994(1) CPJ 147 (NCDRC)

      

    the complaint, an advocate met with a
    motor accident on 26.10.1989 injuring
    his right ankle. He was taken to
    Devaki Hospital. The duty doctor, Dr.
    M. Jagannath Senior Consultant,
    anaesthesiologist attended on him and
    got e-rays of the injured part and
    gave necessary treatment. The request
    to get an opinion from an
    orthopaedician was refused by the
    patient. Next morning, he was examined
    by Dr. K. Chockalingam and operated by
    him same afternoon without the consent
    of his wife and his advocate friends.
    Hospital staff informed them that they
    had obtained the consent of the
    complainant himself. During this
    interval, the complainant’s wife and
    his advocate colleagues had taken his
    reports and contacted Dr. Ardhanari,
    an orthopaedician on whose advice the
    complainant was admitted to Vijaya
    Hospital for treatment by Dr. P.V.A.
    Mohandas, after obtaining discharge
    against Medical Advice.

     

    (LAMA) from Devaki Hospital, Dr.
    Mohandas, on the same night
    re-operated upon the patient and found
    formation of haematoma and infection.
    What was necessary was done.

      

    According to the complainant the 1st
    operation was technically defective
    and was without proper reduction of
    the fracture. Inspite of constant and
    continuous physiotherapy he did not
    become normal and was till having pain
    and swelling around his right ankle
    with radiological changes. The
    complainant alleged that Dr. K.
    Chockalingam was guilty of delay in
    making appropriate timely diagnosis
    and in carrying out proper and
    qualified treatment particularly when
    he was not an orthopaedician. The skin
    gangrene could have had serious
    consequences resulting in amputation
    had the second operation not been
    performed. Since he had to suffer
    great mental agony and pain and suffer
    physical infirmity for the rest of his
    life he prayed for compensation to the
    tune of Rs. 6 lacs.

      

    The respondents the doctors and
    Eskaycee Medical Foundation, filed a
    detailed joint counter refuting the
    allegations made by the complainant.

      

    The State Commission after considering
    the evidence led by the opposite
    parties dismissed the complaint and
    held as under:

     

    · That there was no delay in
    performing the surgery on the injured
    leg of the complainant.

     

    · The complainant himself had given
    conscious and voluntary consent for
    the surgery.

     

    · Respondent No.2, Dr. Chockalingam
    was a competent surgeon fully equipped
    to deal with trauma cases involving
    orthopaedic surgery and even Dr. P.V.A.
    Mohandas who is undoubtedly an eminent
    orthopaedic surgeon has not in his
    testimony cast any shadow or doubt on
    the credentials of Dr. K. Chockalingam
    in dealing with orthopaedic cases.

     

    · It is seen from the evidence that
    there are two methods of surgery
    particularly in cases of this type of
    orthopaedic surgery particularly in
    cases of this type of orthopaedic
    surgery and both the methods are well
    recognised. Dr. K. Chockalingam
    followed the technique prevalent in
    United Kingdom while Dr. Mohandas
    followed the technique adopted in
    America. Both these techniques are
    well recognised.

     

    · There was no evidence that the
    complainant suffered severe pain and
    even if it was so it was due to his
    discharge from the Devaki Hospital
    against the medical advice as in
    orthopaedic surgery the limb
    immobilisation of the operated joint
    and the elevated position of the limb
    are necessary in order to prevent
    oedema and venus oozing and consequent
    pain. These precautions were thrown to
    the winds by the adamant attitude of
    the complainant’s wife in insisting
    upon the discharge of her husband
    against medical advice.

     

    · The gangrene on the affected part
    could have developed subsequent to the
    discharge of the complainant from the
    Devaki Hospital and it may be due to
    several other factors such as injury
    sustained by the complainant in
    accident and second respondent cannot
    be held guilty of any negligence in
    the operation performed by him.

     

    · Dr. K. Chockalingam has asserted
    that there was absolutely no necessity
    for second operation and if the
    patient had been left undisturbed he
    would have recovered fully and Dr.
    Mohandas has nowhere stated that the
    operation performed by the second
    respondent suffered from any
    irreversible or irreparable defect so
    as to necessiate second operation.
    There was no evidence that the present
    condition of the complainant is due to
    the operation performed by Dr. K.
    Chockalingam.

     

    On appeal, the National Commission
    upheld the finding of the State
    Commission with further observations:

      

    “The following observations made
    by Mr. Justice Barrie in Moore v.
    Lewisham Group quoted by the State
    Commission applies to the present
    case:

      

    “When there was two genuinely
    responsible schools of thought about
    the management of a clinical
    situation, the Courts could do no
    greater disservice to the community or
    the advancement of medical science
    than to place the hall mark of
    legality upon one form of
    treatment”.

     

    1.HNC (1959)

     

    The National Commission also awarded
    costs of Rs.10000/- against the
    complainant to be paid to the doctor
    and the owners of the hospital.

        

  • Raj
    Kumar Agarwal v. Dr. B. Mukhopadhyaya


    1995(1) CPJ 260: 1994(3) CPR 574
    (Bihar SCDRC)

      

    the complainant alleged that on
    8.4.1993 he sustained a fracture of
    his left elbow for which he approached
    the opposite party doctor who operated
    upon him and said a final operation
    would be performed later. Instead of
    the opposite party, his assistants
    were treating him. On 28.4.1993 the
    opposite party told the complainant
    that the operation was not necessary
    and fee deposited will be refunded and
    just an injection will be injected in
    the affected bone and then
    physiotherapy will be started from the
    date and some medicines were advised
    and the patient was discharged. The
    complainant was advised to visit the
    opposite party after two months. The
    complainant however consulted another
    orthopaedician Dr. R. C. Singh, who
    advised immediate operation. However,
    when he again consulted the opposite
    party he asked him to undergo plastic
    surgery. Again he consulted Dr. R.C.
    Singh, who told him that plastic
    surgery was not needed and that such
    operation may make the elbow
    non-functional. Thereafter the
    complainant started feeling pain in
    his dead bone. The opposite party
    advised him surgical operation to
    remove pus and dead bone. The
    complainant then consulted third
    doctor who again advised him to get
    operation done who carried out the
    operation on complainant’s hand. It
    was alleged that the complainant was
    till undergoing treatment and as there
    was much delay in operation
    improvement in the functioning of the
    hand wa not as expected. The
    complainant, therefore alleged that
    the situation arose from negligence in
    diagnosis and treatment as well as
    deficiency in service on part of the
    opposite party. He claimed by way of
    compensation i.e.Rs.915422/- with
    interest.

      

    The opposite party controverted all
    the allegations. It was stated that
    the complainant had sustained compound
    comminuted fracture. Bone was broken
    into many pieces. The wound was
    communiting with the joint which was
    unfavourable situation and the would
    wa contamnated and infected. The
    complainant was also a diabetic
    patient. Therefore it was decided that
    to avoid further complications the
    limb should be given sufficient rest.
    Therefore the limb was put in plaster
    cast and inelevated position and
    proper drug therapy was given. It was
    found that there was a lot of
    improvement when the patient was
    examined on 12.4.1993. Diabetes was
    also under control and it was decided
    to perform a wound debridgement so to
    remove all the contaminants. The
    procedure was carried out by Dr,. John
    Mukhopadhya who is M.B.B.S., F.R.C.S.,
    M.E.H. (Ortho). As it is minor
    procedure it was done by the above
    mentioned assistant of the opposite
    party. The procedure wa successful and
    the wound was covered by skin grafting
    which was performed on 16.4.1993. That
    procedure was also successful as the
    wound became close. It was decided
    that unless and until a full thickness
    skin graft was provided over a whole
    area over the original wound the
    operation to set right the fracture
    would not be carried out. Therefore,
    the operation fee was returned and the
    patient was referred to a plastic
    surgeon. The complainant, however
    disappeared from the opposite party’s
    care and he consulted some other
    doctor. The patient also did not
    undergo the operations which were
    suggested by the other doctor, but
    again came back to the opposite party
    who advised him to go to the plastic
    surgeon for thickness skin replacement
    but the complainant patient did not
    abide by the advice. Therefore, the
    complainant consulted other doctors
    who advised him that surgical
    interference was not necessary.
    Progress was satisfactory. As the
    complainant had not taken advice given
    by the opposite party, no negligence
    could be attributed to any of the
    things which happened to the
    complainant later on. Also the
    opposite party stated that he had
    followed all the standard procedures
    and chosen the correct treatment in
    the given circumstances.

      

    The State Commission held that the
    complainant obviously changed the
    doctors and had not followed treatment
    suggested by the opposite party. Even
    though the complainant’s version is
    believed that Dr. Raju Ratan had
    expressed the opinion that immediate
    operation ought to have been carried
    out. It is not for the State
    Commission to decide which treatment
    between the two would have been
    correct and proper i.e. immediate
    operation or the treatment given by
    opposite party.

      

    The State Commission held that when
    there are two genuinely responsible
    schools of thought about the method to
    be adopted in fixing fracture the
    court should not place hall-mark of
    legality on any one of the treatments.
    For this reason it came to the
    conclusion that merely because the
    opposite party chose one of the
    treatments available in treating the
    fracture, it could not be held that he
    was negligent. Hence, the case came to
    be dismissed.

       

  • Nurud
    din Kutubuddin Bulati v. Dr. L.N.
    Vohra & Anr.


    1995(1)
    CPJ 455: 1995(2) CPR 424 (Mah. SCDRC)

       

    the complainant was operated upon by
    the 1st opposite party for prolapsed
    intervertebral disc (P.I.D.) , but his
    back pain did not subside, and he had
    to be re-operated by another doctor
    whereafter the pain stopped.

      

    The 1st opposite party stated that the
    complainant had L4-L5 disc prolapse,
    which he had removed, Only the
    prolapsed part of the disc was
    removed. The doctor who operated upon
    the complainant the second time stated
    that during surgery; (i) there was no
    disc protusion at L4-L5 level but
    fibrosis which were released; (ii)
    bulge at L3-L4 level was removed; and
    (iii) L5-S1 no disc prolapse, no
    fibrosis.

      

    A subsequent MRI showed that there was
    prolapse and fibrosis at L5-S1. This
    proved that the complainant was prone
    to bulges and fibrosis.

      

    On consideration of these facts and
    circumstances, the State Commission
    held that the 1st opposite party had
    exercised reasonable skill and due
    diligence. Complaint was dismissed.

         

  • Krishna
    Kant De v. Dr. I. Roy & Ors.


    1996(1)
    CPR 364 (West Bengal SCDRC)

      

    the complainant’s daugher was operated
    by Dr. T. Roy, but it was alleged that
    after surgery her disability
    increased.

     

    The State Commission on basis of
    evidence and facts placed before it
    held that the patient was suffering
    from “myopathy” which is a
    genetic disease of the muscles, and he
    had operated only to give some relief
    and improvement as a palliative
    measure and there was no wrong or
    negligence on his part, and awarded a
    token compensation of Rs. 100/- in
    favour of Dr. T. Roy.

       

  • Tapan
    Kumar Nayak & Ors. V. State of
    Orissa & Ors.


    1997
    (2) DPJ 14: 1997 (2) CPR 104 (NC).

       

    Child of the complainants was an
    administered DPT injection and oral
    polio drop. He developed reaction
    resulting in damage to his brain
    causing muscular deformity and
    deficiency.

      

    The National Commission held that the
    enquiry report submitted by the
    District Immunization Offer, Cuttack
    clearly mentions that none of the
    other children who had also been
    vaccinated out of the same batch of
    the vaccine had suffered any
    complication of the present kind and
    hence it could not be said that there
    was any defect in the vaccine which
    was administered to the infant. It
    also held that the complainants are
    not consumers as there was no hiring
    of service for consideration between
    then and the opposite parties. While
    confirming the order passed by the
    Orissa State Commission, that there
    was no scope for awarding relief to
    the complainant under the C.P. Act, it
    strongly recommended to the State
    Government to render all possible
    assistance in proper rehabilitation of
    the child.

        

  • BASUDEV
    GOSWAMI v. DR. BHASKAR DAS


    III (2001) CPJ 262

     

    Consumer Protection Act, 1986 -
    Section 2(1)(g) – Medical Negligence -
    Deficiency in Service – Operation
    performed for setting right the leg -
    Condition not improved after operation
    – Negligence and carelessness alleged
    – Allegation has to be examined after
    obtaining expert opinion – Elaborate
    evidence required – Dispute cannot be
    decided in summary procedure -
    Complaint dismissed.

     

    Held : According to the Forum this
    dispute cannot be decided in a summary
    procedure. Forum observed that
    elaborate and long evidence would be
    required for proper determination of
    the case. Consequently the Forum
    declined to exercise jurisdiction. The
    Forum placed reliance on a case
    reported in 1991 CPR 52 and another
    case reported in 1994 CCJ 202. On
    consideration of the materials on
    record we fully agree with the views
    taken by the Forum. It may be
    remembered that everybody cannot
    expect that he would derive benefit
    from the treatment. The operation was
    done yielding no result to the
    patient. The patient was advised to
    take physiotherapy regularly but that
    direction was not followed. The
    surgeon referred the patient to
    another doctor in Calcutta. The
    complainant took the patient to
    another doctor. There again no
    improvement could be noticed. There is
    no specific allegation of carelessness
    or negligence on the part of the
    surgeon. As observed earlier everybody
    cannot expect to get benefit from the
    treatment. We agree with the view
    taken by the Forum to the effect that
    evidence of expert would be needed to
    establish negligence on the part of
    the surgeon. It may be observed that
    the adjudication of the dispute in
    hand cannot be done within a time
    frame. So we fully agree with the
    views expressed by the Forum. For the
    reasons aforesaid we think that the
    case was rightly decided by the Forum
    and the direction given by the Forum
    to the effect that the complainant may
    seek remedy before the appropriate
    Forum was quite justified. In that
    view of the mater we find no merit in
    the revision case which is hereby
    dismissed on contest.  (Para 5)

      

    Result : R.P. dismissed.

     

    Mr. Justice S.C. Datta, President -
    This revision petition is directed
    against Order No. 21 dated 27.8.1997
    whereby the Forum dismissed the case
    on the ground that it was not
    maintainable. According to the Forum
    elaborate and long evidence will be
    required for proper adjudication of
    the case and evidence of medico
    surgical experts will also be
    necessary. The Forum observed that it
    was not equipped with any
    infrastructure to undertake such an
    enquiry. In that view of the matter
    the Forum declined to entertain and
    adjudicate the dispute between the
    parties.

     

    2. The case of the complainant is that
    he hired the services of Dr. Bhaskar
    Das (opposite party) for surgical
    treatment of his daughter, Beauty
    Goswami. On 8.4.1994 the doctor
    examined the daughter and opined that
    she required operation for setting
    right her right leg. Doctor asked the
    complainant to do some investigation
    and to obtain an X-ray report. As per
    advice of the doctor the daughter of
    the complainant was admitted in the
    Janakalyan Nursing Home at Bhadreswar
    on 16.8.1994 and on the next day
    operation was performed. The patient
    was discharged from the Nursing Home
    on 20.8.1994. The complainant took the
    patient to the chamber of Dr. Das on
    25.9.1994 who referred the patient to
    Shyamal Banik (opposite party No. 2)
    for Physiotherapy. As the condition of
    the patient did not improve she was
    taken to Dr. D.K. Mishra of Calcutta
    as per advice of Dr. Das. As the
    condition of the patient was
    deteriorating she was taken to another
    doctor whose name was Dr. A. Roy
    Chowdhury and followed his advice.
    Even then the condition of the patient
    did not improve. The patient was
    unable to walk. The complainant again
    approached Dr. Das but in vain.
    Subsequently he has brought the action
    against the opposite parties alleging
    deficiency in service.

      

    3. The opposite party denied that
    there had been any
    negligence/carelessness on his part in
    the matter of surgical operation.
    According to the opposite party the
    patient did not recover on account of
    her failure to follow the advice given
    by Physiotherapist. The patient was
    asked to receive regular physiotherapy
    but this advice was not followed.

      

    4. At the time of opening of the case
    the opposite party raised the question
    of maintainability of the case on the
    ground that dispute between the
    parties cannot be resolved in a
    summary way. Elaborate evidence is
    required to be taken, discussed,
    analysed and evaluated before the
    question of negligence or carelessness
    is decided.

      

    5. It is not disputed that the
    opposite party No. 1 is an Orthopaedic
    Surgeon and he is, therefore,
    competent to perform surgery upon the
    patient. It is also not disputed that
    the operation was done for
    consideration. The condition of the
    leg of the patient having not improved
    the complainant being the father of
    the patient has lodged the complaint
    petition alleging negligence and
    carelessness on the part of the
    surgeon. The case of the opposite
    parties is that the patient did not
    receive the physiotherapy regularly
    but received the same only for two
    days resulting in no improvement in
    the situation. The opposite party No.
    1 has categorically stated in his
    written objection that as a prudent
    doctor he did whatever was required of
    him to be done under medical science.
    The Forum noticed that such a case has
    to be proved by producing oral
    evidence. According to the Forum the
    question whether the surgeon did the
    operation properly and according to
    medical science and whether there had
    been any negligence or carelessness in
    the operation has to be examined after
    obtaining opinion or evidence of some
    medico surgical experts. According to
    the Forum this dispute cannot be
    decided in a summary procedure. Forum
    observed that elaborate and long
    evidence would be required for proper
    determination of the case.
    Consequently the Forum declined to
    exercise jurisdiction. The Forum
    placed reliance on a case reported in
    1991 CPR 52 and another case reported
    in 1994 CCJ 202. On consideration of
    the materials on record we fully agree
    with the views taken by the Forum. It
    may be remembered that everybody
    cannot except that he would derive
    benefit from the treatment. The
    operation was done yielding no result
    to the patient. The patient was
    advised to take physiotherapy
    regularly but that direction was not
    followed. The surgeon referred the
    patient to another doctor in Calcutta.
    The complainant took the patient to
    another doctor. There again no
    improvement could be noticed. There is
    no specific allegation of carelessness
    or negligence on the part of the
    surgeon. As observed earlier everybody
    cannot expect to get benefit from the
    treatment. We agree with the view
    taken by the Forum to the effect that
    evidence of expert would be needed to
    establish negligence on the part of
    the surgeon. It may be observed that
    the adjudication of the dispute in
    hand cannot be done within a time
    frame. So we fully agree with the
    views expressed by the Forum. For the
    reasons aforesaid we think that the
    case was rightly decided by the Forum
    and the direction given by the Forum
    to the effect that the complainant may
    seek remedy before the appropriate
    Forum was quite justified. In that
    view of the mater we find no merit in
    the Forum.

         

  • Sanjeev
    Verma v Janpriya Accident and Fracture
    Hospital through Manager


    2001 (3) CPR 2

      

    STATE CONSUMER DISPUTES 

    REDRESSAL COMMISSION,

    MADHYA PRADESH :BHOPAL

         

    Consumer Protection Act,1986-Sections
    2 and 17(1)(a)-Medical
    negligence-Complainant suffered
    fracture in neck femur head of his leg
    and was operated by the opposite party
    doctor-Pain and fever persisted and
    complainant consulted other private
    hospital where second operation was
    carried out to remove Richard Plate
    fixed by the opposite party during
    first operation and neck of femur bone
    was removed -Leg shortened by
    3.5″-compensation claim for
    negligence on part of the opposite
    party-Difference of opinion among
    doctors may not amount to negligence
    -Opposite party doctor had taken all
    pre operative and post operative care
    but wound had sepsis infection -only
    difference which complainants
    witnesses doctors stated was that some
    strong antibiotics should have been
    given.-Opposite party doctor had tried
    to protect the femur neck to save the
    complainant from shortening his leg
    and had taken all precautions to
    diagnose the patient – Complainant
    could not said to have proved
    negligence during operation or post
    operative care – Complaint was liable
    to be dismissed.

    (Paras 8 to 11 and 15)

      

    Result : Complaint dismissed.

       

    Important Point

       

    If there is difference of opinion
    about the treatment by some docrtors ,
    it cannot be said that Doctor was
    looking after the patient was
    negligent in any way.

       

    ORDER

       

    B.L KHARE, Member- This is a complaint
    under Section 17(1)(a) of the Consumer
    Protection Act , 1986 (for short the
    act) to claim compensation of Rs
    14,92,355/-together along with costs
    for the proceedings for the medical
    negligence against Janpriya Accident
    and Fracture Hospital and Dr Bajpai a
    visiting orthopaedic surgeon of the
    above hospital.

      

    2) The facts of the case are that
    complainant Sanjeev VErma is a State
    Government servant and serving as a
    sub engineer in Public Works
    Department (PWD). of Govt Of Madhya
    Pradesh.The complainant met with an
    accident on 28-4-1994 .He approached
    the Janpriya Accident and Fracture
    Hospital where the opposite party no 2
    dr Pramod Bajpai examined him.He
    assured him that this was a hospital
    having well equipped operation theatre
    ,because the complainant had a
    fracture in the neck femur head of his
    left leg , therefore operation was
    necessary Dr Bajpai assured him that
    he will perform the operation and
    within a month he will be able to move
    normally .On this assurance the the
    complainant admitted himself in the
    hospital of the opposite party no 1 on
    30-4-1994 where the opposite party no
    2 Dr Bajpai performed an operation of
    his left leg.Dr Bajpai inserted a
    Richard Plate and tightened with
    screws ,the complainant remained
    admitted in the hospital.On 4-5-1994
    his wound was opened ,washed and
    dressing done but it was alleged by
    the patient that he was continuously
    having pain and then the compalint of
    a fever was developed.On consultation
    with Dr Bajpaithe opposite party no 2
    gave him some analgesic injections and
    to cjheck the infection some
    antibiotic was also prescribed.The
    medicines didnot respond and he was
    continuously having pain and fever.On
    7-5-1994 ,his brother-in- law Dr O.P
    Saxena who is M.D medicine came from
    Gwalior to see his condition then he
    told the patient that after 7 days of
    operation there should be no pain and
    fever .It seems that there has been
    some infection in the bone which has
    developed in Oiestiomolitis.On
    8-5-1994 when complainant was having
    acute pain then Dr O.P Saxena asked Dr
    Pramod Bbajpai to open the wound and
    dress it again.It is alleged that when
    the dressing was opened therte was lot
    ofd pus in the wound which was drained
    out and after cleaning and washing the
    dressing was done.Dr Saxena
    apprehended the infection in the bone
    but Dr Bajpai said it was a
    superfluous wound which will be cured
    in a few days.The pain persisted and
    from time to time the medicines were
    changed.Dr Pramod Bajpai suspected
    malaria and therefore drugs for
    controlling malaria were also added
    but there was no relief .Therefore on
    10-5-1994 on the suggestion of Dr
    Saxena Urine culture was advised by Dr
    Bajpai.On the basis of urine culture
    report some medicines were added on
    13-5-1994 but there was no relief.
    Even then on 17-5-1994 the complainant
    was discharged from the hospital. The
    complainant was not willing to leave
    the hospital becsause he was having
    pain and fever ,but Dr Bajpai
    discharged him.The complaint states
    that when he complained about pain and
    fever , the opposite party no2 Dr
    Bajpai didnot listen to him and had
    not recommended any test of blood
    ,urine , or pus culture. Therefore he
    himself on 29-5-94 resorted to
    pathological test and pus culture was
    done in which sensitivity against some
    drugs was observed . He also went for
    X-ray ,radiologist Dr K.K Agrawal
    suspected infection in the bone
    therefore suggested that the
    complainant should consult Dr
    Taqiraza.HBead of Dept of Orthopaedics
    in medical college Jabalpur.Dr
    Taqiraza after examination observed
    sepsis pus forming and acute infection
    of the bone.He also advised removal of
    Richard Plateand cutting the femur
    head even then Dr Bajpai did not agree
    and stated that this infection is
    superfluous and will be cured after
    sometime.When the pain and fever
    persisted his family members took him
    to bombay and consulted Dr
    Jhunjhunwala of Bombay Hospital Dr
    Jhunjhunwala after examination gave
    opinion that there is bone infection
    and therefore Richard plate will have
    to be removed and the femur head will
    be cut .On this Dr Jhunjhunwala
    performed an operation to remove the
    Richard plate and the neck of the
    femur bone this has shortened his leg
    by 3.5 inch and has created a
    permanent disability.The complainant
    alleges that this has been due to the
    carelessness of opposite party
    particularly Dr Bajpai that septic
    developed in the boneand therefore
    femur head was cut resulting in the
    shortening of his leg and making him
    permanently disabled.

        

    The complainant therefore approached
    the commission for a compensation of
    medicines totalling Rs 92355/- and
    compensation of Rs 14 lacs for
    physical and mental torture and also
    costs of the proccedings amounting to
    Rs 3250/- and advocate fees Rs 2500/-
    thus total Rs 14,98105 /- from the
    opposite parties.

       

    3) The opposite parties resisted the
    claim and submitted that they have
    taken all precaution and have acted
    bonafidely in the interest of the
    patient Dr Bajpai stated that he took
    a decision to implant Richard Plate to
    save the neck of femur which was
    fractured to save the complainant from
    disability.He said that it was simple
    to cut and to remove the neck of the
    femur but it would have resultede in
    shortening of the leg therefore he
    decidede in the interest of the
    patient to operate and fix the Richard
    plate. He has taken all precautions to
    check the infection and feverThe
    complainant was alright on 17-5-94 and
    was therefore discharged from the
    hospital with a direction that he
    should come on monday for dressing of
    the wound but it was the patient who
    neglected the advise and did not care
    to visit the hospital for dressing
    purposes or or for taking some advise
    for further treatment.At the time of
    admission in the hospital he has taken
    all precautions and treatment and
    preoperative tests were conducted and
    when everything was alright the
    patient was operated .After the
    opeartion post operative care was
    taken .On the compalint of fewver and
    pain the patient was adviced for
    culture analysis report on 7-5-94 as
    is evident from the report dated
    10-5-94 of Saket Pathology Jabalpur
    attached with complaint again urine
    culture was done and on the basis of
    report medicines were added in the
    prescription.From the very beginning
    antibiotics and painkiller were
    administered .On 17-5 94 when the
    patient was discharged his wound
    sepsis and infection was controlled
    and he was prescribed medicines and
    was advised to contact as and when
    necessarybut after 17-5-94 complainant
    did not contact him and approached
    other doctors.Therefore for any later
    development party cannot be held
    responsible.The post operative
    treatment was given by him as per
    medical norms and when pus and urine
    culture reports were received more
    effective medicines were added,
    therefore it cannot be alleged that he
    has not taken proper care or even
    acted in a negligent manner.

        

    4) In this case on evidence adduced we
    have to examine whether opposite party
    Dr Bajpai can be held responsible for
    medical negligence?

       

    5) We have gone through the evidence
    .The complainant has produced evidence
    of his relatives who visited him when
    he was admitted to the hospital.Both
    the relatives are medical
    practitioners.One Dr O.P Saxena who is
    a doctor stated that he visited the
    complainant on 7-5-94 at 2 pm in the
    nursing home.On that day patient was
    suffering freom severe pain and
    fever.Dr Saxena states taht generally
    a wound hewals 7 days after the
    operation but when there was pain in
    the place of opeartion it was a case
    of septic therefore he discussed with
    the opposite party Dr Bajpai .On
    8-5-94 he consulted and suggesated to
    DR Bajpai to open the wound and dress
    it again , when he opened the wound
    then a huge amount of pus was drained
    out then the pus sample was collected
    and sent for culture sensitivity test
    On 10-5-94 report was received on the
    basis of the report was received and
    on the basis of the report sensitive
    drugs were started. The drugs for
    malaria and U.T.I infection for which
    he has prescribed medicines . Dr
    Saxena differed with operating surgeon
    Dr Bajpai and states that on 2-6-94
    when he visited again he found that
    though the complainant was relieved on
    17-5-94 he was still having pain at
    the point of operation and pus was
    coming out during dressing .Dr Saxena
    further states that treatment which Dr
    Bajpai was administering was not
    giving desired results to relive pain
    and infection .From the very beginning
    he apprehended that it was a case of
    bone infection.Similarly Dr M.P Khare
    who is another relative of the
    complainant also stated that the bone
    infection was due to negligence of the
    opposite party Dr Bajpai because post
    operative care was not taken by the
    opposite party .He stated that hygenic
    condition of the hospital was
    dissatisfactory, nursing home was not
    neat and cleanwhich might have led to
    infection after operation of femur.

       

    6) During the course of arguements
    Shri Mohan Choksey learned counsel for
    the complainant nstated that when
    there was infection in the place of
    operation then Dr BAjpai should have
    recommended ESR .Toatal LEucocyte
    Count (TLC), Diff Leucocyte count(DLC)
    test to ascertain level of infection
    which Dr BAjpai failed. On the other
    hand , Shri Ajay Mishra learned
    counsel for the opposite party
    submitted that when pus culture and
    tests were already got conducted on
    10-5-1994 and on the basis of this
    report , medicines were changed and
    medicines of malaria and UTI were also
    added, therefore there was no
    necessity to conduct another test.

       

    7) On the basis of the two
    affidavitsof Dr Saxena and Dr Khare
    the complainant alleged medical
    negligence as the doctors differed on
    diagnosis and treatment of the patient
    (complainant) . The book of Tort Law
    Library – Medical negligence ” By
    Michael A Jones , Professor of Law of
    University of Liverpool,Second Edition
    1996 under chapter 3 standard of care
    General Principles in Para 009 has
    dealt with the question wherein it is
    observed thus:-

       

    ” In Hunter V Hanley 1955 S.C
    200,204-5;DUNNE V -NATIONAL MATERNITY
    HOSPITAL (1989) I.R 91,109 (SUPREME
    COURT OF IRELAND); sYMMONS(1990) 6
    p.n.201 LORD President Clyde dealt
    with the question of different
    professional practices in these terms
    :

    In the realm of diagnosis and
    treatment there is ample scope for
    genuine difference of opinion and one
    man is clearly not negligent merely
    because his conclusion differs from
    that of the othernor because he has
    displayed he has displayed less skill
    or knowledge tht others would have
    shown.

        

    The true test for establishing
    negligence in diagnosis or treatment
    on the part of doctor is whether he
    has been proved to be guilty of such
    failure as no doctor of ordinary skill
    would be guilty of if acting with
    ordinary care.”

        

    8) This makes clear that if there is
    difference of opinion about the
    treatrment by some doctors , it cannot
    be said that the doctor who was
    looking after the patient was
    negligent in any way.

        

    9) The Supreme Court in the case of
    Achutrao Hartibahu Khodwa and others v
    State Of Maharashtra and Others has
    observed thus :

    “A medical practitioner has
    various duties towards his patient and
    he must act with a reasonable degree
    of skill and knowledge and must
    exercis a reasonable degree of care.
    This is the least that a patient
    expects from a doctor.The skill of a
    medical practitioner varies from
    doctor to doctor.The very nature of
    the profession is such that there may
    be more than one course of treatment
    which may be advisable to treat a
    patient.Courts would indeed be slow in
    attributing negligence on the part of
    doctor if he has performed his duty to
    the best of his ability and with due
    care and caution.Medical opinion may
    differ with regard to the coures of
    action to be taken by a doctor while
    treating a patient,but , as long as a
    doctor acts in a manner which is
    acceptable to the medical profession
    and the court finds it that he has
    attended the patient with due care
    skill and diligence and if the patient
    till does not survive or suffers
    permanent aliment it would be
    difficult to hold the doctor guilty of
    negligence. But in cases where the
    doctors act carelessly and in a manner
    which is not expected of a medical
    practitioner, then in such a case an
    action in torts would be
    maintainable.”

        

    10) The Supreme court in case of
    Poonam Verma v Ashwin patel &
    others observed that negligence as
    tort is the breach of a duty caused by
    Commission to do something which a
    reasonable man would do or doing
    something which a prudent and
    resonable man would do.The definition
    involved the constituents a legal duty
    to exercise due care, breach of the
    duty and consequential damages. The
    breach of the duty may be occasioned
    either by not doing something which a
    reasonable man, under a given set of
    circumstances would do, orby going
    some act which a reasonable prudent
    man would not do. To determine the
    medical negligence the principles laid
    down in Dr. Laxman Balakrishna Joshi
    v. Dr. Trimbak Bapu Godbole &
    another 3 were reiterated wherein it
    has been laid down that a Doctor when
    consulted by a patient owes him
    certain duties namley (a) a duty of
    care in deciding whether to undertake
    the case; (b) a duty of care in
    deciding what treatment to give; and
    (c) a duty of care in administration
    of that treatment. A breach of any of
    these duties gives a cause of action
    for negligence to the patient.

         

    11.  In the case in hand, from
    the record we find that before
    operation a through medical check-up
    was done at jabalpur Hospital &
    Research Centre and after operation
    where there was pain and pus was
    coming Dr. Bajpai again got conducted
    medical examination from saket
    pathology. The report is attached as
    C-5, C-6, C-7 and C-8, Treatment
    prescribed also reveals that broad
    spectrum antibiotics were given to the
    patient and when it was found that the
    patient was resistant for Ciplox after
    test and pus culture on 10-5-1994 more
    sensitive medicines were prescribed
    and as per version of Dr. Bajpai has
    taken a reasonable care after
    operation. In the discharge ticket on
    17-5-1994 it has been mentioned that
    “patient had wound sepsis
    infection is controlled” (C-10).
    In this prescription some medicines
    were prescribed which are for pain and
    control of infection. the only
    difference which the complainant’s
    witnesses Dr. O.P.Saxena and Dr.
    M.P.Khare have stated that some strong
    antibiotics should have been given.
    This does not mean that the opposite
    party has acted diagnosis and
    treatment may differ from Doctor to
    Doctor. The opposite party has stated
    that he could have removed the femur
    head on the same date but with good
    intention he tried to operate and fix
    a Richard Plate and tightened with
    screws to save the patient from
    shortening of his leg and have taken
    all precautions to diagnose the
    patient. Dr. Bajpai had further stated
    that inspite of talking all care
    infection remains a formidable
    challenge in orthopedic surgery. Our
    attention was drawn to Para 3 of
    Chapter 26 General principles of
    infections of the book Campbell’s
    Operative Orthopaedics Edited by A.H.
    Crenshaw Volume One Seventh Edition,
    1987, which read thus :

         

      ” Despite the availability
    of a growing number of potent
    antibiotics and the increasing
    sophistication of modern surgical
    techniques, infection remains a
    formidable challenge in orthopedic
    surgery” 

          

    12  In well renowned scientific
    Journal “The Journal of bone and
    Joint Surgery” (April 1996)
    issue, a report has been published on
    the

         
    operative and post-operative
    infections, which clearly confirm that
    despite all care, caution and
    treatment infection is known common
    problem and that can be cured by
    proper medication. In the famous book
    of Campbell’s Operative Orthopaedics
    the General principles of infection
    have been defined in Chapter 26
    wherein this aspect has been accepted
    that despite availability of growing
    number of potent antibiotics and
    increasing sophistication of modern
    surgical techniques, infection remains
    a formidable challenge in the
    Orthopaedics Surgery, therefore, it is
    the submission of the opposite parties
    that they cannot be alleged to have
    committed any medical negligence.

         

    13.  While dealing with the
    case of medical negligence, the Madhya
    Pradesh High Court in case of Sudha
    Gupta and others v. State of M.P. and
    others has observed thus : 

          

      ” Negligence – Burden of
    Proof – Negligence is omission to do
    something which a reasonable man
    guided upon those considerations which
    ordinarily regulate the conduct of
    human affairs will do or doing
    something which a prudent and
    reasonable man would not do – There
    must be direct nexus between the death
    of a person and the negligent act -
    The burden of proving negligence rests
    upon the person who asserts it – In
    medical negligence cases, it is for
    the patient to establish his case
    against the medical man to prove that
    he acted with sufficient care and
    skill. (Paras 30-32). “

         

    14.  The National Commission has
    also taken same view in several other
    judgment that mishap during operations
    cannot be said to be deficiency or
    negligence in medical services
    “Negligence has to be established
    and cannot be presumed.” See, the
    decisions of National Commission in
    case of Kanhiya Kumar Singh v. Park
    Medicare and Research Centre. Similar
    view has been taken by the MRTP
    Commission in case of P.K. Pandey v.
    Suraj Nursing Home.

         

    15.  From the evidence on record
    we find that the complainant has not
    produced any opinion of Medical Expert
    to prove that the opposite party has
    acted in anyway negligently during
    operation or has not taken proper
    post-operative medical care. We,
    therefore, do not find the opposite
    party guilty of any medical negligence
    and we are of the opinion that the
    complainant has not been able to prove
    medical negligence against the
    opposite party. Therefore, the
    compensation from the opposite party. 

         

    16. In the result, complaint fails and
    is dismissed with no order as to
    costs. A copy of this order be
    conveyed to the parties.

         

    Complaint Dismissed.

        


         


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  • Ashok Kumar v. Dr. Suresh Sharma
    1 (2001) CPJ 478
       
    Consumer protection Act -, 1986 - Section 14(1)(d) – Medical Negligence – Compensation claimed – Fractured pieces repaired – Plaster changed twice – Complainant still to go under further treatment – No expert evidence produced to prove negligence of opposite party – Treatment not against prescribed norms under medical jurisprudence – Complainant not entitled to any compensation.
       
    Held : Admittedly, no expert has been produced by the complainant to prove negligence of the opposite party. After removal of the plaster, it was discovered that lower portion of patella had not united with the rest of the patella. Plaster was changed twice on 18.11.1996 and on 18.12.1996 and the complainant had approached the opposite party for follow up action on 2.3.1997 and 5.12.1997 respectively. The complainant was still to undergo further treatment by the opposite party by way of removal of wire and removal of cause pain and problem to the complainant, even after removal of the wire. He stopped getting further treatment from the opposite party after removal of the wire, as advised.
       
    Thus, it cannot be said with exactitude that treatment of the complainant by the opposite party was against the norms prescribed under the medical jurisprudence or that the opposite party in any way was negligent or deficient in performance of his duties. We, thus, do not find any infirmity in the order of the District Forum.
       
    RESULT : Appeal dismissed.
      
    ORDER :
    Mr. Justice H.S. Brar, president - Brief facts as stated in the complainant are that on 9.10.1996 complainant was going on his scooter when he met with an accident, as a result of which his left knee joint patella got fractured into pieces. Complainant had consulted the opposite party (hereinafter called O.P.) and hired the services for treatment as opposite party had assured cent percent healing of patella and the restoration of normal functioning of the leg. During the course of treatment, the opposite party operated upon the left knee joint patella portion on 9.10.1996. The complainant remained admitted in his hospital up to 18.10.1996. The injured leg of the complainant was put under plaster. A wire was also inserted to join and unite the broken pieces of patella. It is then stated in the complaint that after removal of plaster, it was discovered that the lower portion of patella had not united with the rest of patella and thus it was causing constant pain and movement of the complainant was also restricted and painful. It is then stated in the complainant that after sometime the complainant again contacted opposite party and complained of pain in the knee joint. Opposite party advised him to undergo another operation. The complainant then consulted another Orthopaedic Specialist, Dr. Rajiv Saigal, who told him that during the operation conducted by the opposite party the lower portion of the patella was not united with rest of the patella and it was causing pain and restricted ,movement of the ;eg and that is why the normal  functioning of the leg had not been restored. The complainant had been consulting the opposite party constantly and making complaint of pain and painful movement. The opposite part used to prescribe painkillers. It is then alleged in the complaint that the opposite party was negligent in rendering medical service to the complainant and failed to observe the standards of medical proficiency required of him. The opposite party had failed to unite the lower part of patella with rest of its part. The circumferential wire was not also properly inserted. The complainant was not properly medically treated by the opposite party. The opposite party was, thus , deficient in providing service to the complainant . Rs. 15,00/- was claimed as spent on the treatment. Further compensation of Rs. 35,000/- was demanded due to sufferance of business etc.
      
    2.  In reply filed by opposite party , it is stated that the complainant was brought by his family members in his hospital on 9.10.1996 for treatment of his injured left knee region. 
      
    3.  Admittedly no expert has been produced by the complainant to prove negligence of the opposite party. After removal of the plaster, it was discovered that the lower portion of patella had not united with the rest of the patella. Plaster was changed twice pm 18.11.1996 and on 18.12.1996 and the complainant had approached the opposite party for follow up action o 2.3.1997 and 5.12.1997 respectively. The complainant was still to undergo further treatment by the opposite party by way of removal of wire and removal of lower fragment of patella in case it continued to cause pain and problem to the complainant, even after removal of the wire. He stopped getting further treatment from the opposite party after removal of the wire, as advised. 
      
    4.  Thus it cannot be said with exactitude that treatment of the complainant by the opposite paarty was against the norms prescribed under the medical jurisprudence or that the opposite party in any way was negligent or deficient in performance of his duties. We, thus, do not find any infirmity in the order of the District Forum.
    Consequently, this appeal is dismissed; however without any order as to costs.
    It may be mentioned here that the complainant may take recourse to any other remedy provided to him under the law, if so advised.
       
    Appeal dismissed.
               

  • Amir Ali Shakil v. St. John’s Medical College Hospital, Bangalore
    1996(1) CPJ 169: 1995 (3) CPR 174 (Karnataka SCDRC)
      
    The youngest son of the complainant met with an accident and was taken to St. John’s Medical College Hospital, Bangalore at about 6 PM was alleged that due to delay in providing treatment he died early next morning at 4 am. The State Commission held that the injured came to St. John’s Medical College Hospital by about 6.15 PM and he was taken into the operation theatre for necessary operation by about 7.40 PM. During this period of an hour and 25 minutes, IV fluid was given, blood grouping and cross matching was done, X-rays were taken, Neuro surgeon was consulted, 19 units of blood was arranged and then patient was prepared for the operation and the operation was performed. Reasonable delay in shifting the accident case to the operation theatre is not negligent delay and the complaint was dismissed.
       

  • Lekhraj v. Bharaj Nursing Home & Anr
    1998 (2) CPJ 335 (Punjab SCDRC)
      
    The complainant suffered injuries while going on a scooter at about 5.30 p.m. on 11.7.1995. He was taken first to a Primary Health Centre and from there was referred to Civil Hospital. The patient reached Bharaj Nursing Home of the opposite party at about 8.30 p.m. on that very day. This would show that about three hours’ time had already elapsed when the opposite party examined the patient. Since the patient was in shock, blood pressure was unrecordable because of the two fractures – one on the arm and other on the leg – and there existed a big haematoma on account of injury to the vessel in the leg, treatment to stabilize the patient by administering fluids through intravenous route coupled with some medicines was required and given. Support to the leg was also provided. Since the patient was in shock it was not considered necessary to have X-ray immediately. Some time must have been taken for clinical examination of the patient and for providing aforesaid treatment as expressed by experts. It was necessary to allow the patient to come out of the shock. It is futile to argue as suggested by the counsel for the complainant that immediately at 8.30 p.m. doctor of the opposite party should have referred the patient to C.M.C. as the opposite parties could provide no treatment for the vessel injuries. There is fallacy in this argument. The attempt of every doctor initially would be to bring the patient out of shock and thereafter to decide about the nature of treatment to be given. Journey to Ludhiana from Hoshiarpur even by road would have taken about two hours. By that time obviously the maximum period of six hours as referred to in the books for providing treatment to the vessel injuries would have expired and the damage ultimately caused to the patient of amputation of the leg could not have been attributed to any act on the part of the opposite parties. In the context of negligent act on the part of the opposite parties, it was further argued that even in the morning at the time of referring the patient to C.M.C., Ludhiana the condition of the patient was still under shock. It had been explained that blood pressure at that time was recorded and before the time requisition for blood had already been made. It was also the part of the treatment. The amputation of leg was not on account of negligent act on the part of the doctor but in fact was on account of injuries suffered. The complainant had thus utterly failed to prove negligence of the opposite parties in the matte of providing treatment or in the matter of alleged delay in referring the patient to C.M.C., Ludhiana.
      
    In view of the fact that the complainant had failed to prove negligent act on the part of the opposite parties it was not considered necessary to decide to how much amount of compensation the complainant would have been entitled to.
         

  • Sachin Agarwal alias Vicky (through guardian) v. Dr. Ashok Arora
    1993(1) CPJ 113 (Haryana SCDRC)
     
    The complainants met with an accident and factured his left femur. Compression plating was done by the opposite party. After three months, the bone again broke from the same place and it was alleged that this occurred due to the negligent operation performed. The State Commission held that the hospital records of the hospital where he was taken after he suffered belied the version that the plate had broken on its own fracture a second time. The hospital record clearly mentioned that he was admitted after he fell down on the floor. No proper evidence was adduced to support his allegation that compression plating on a child of 13 years should never be done. Complaint was dismissed with costs of RS. 2000/-.
      

  • Akhil Bhartiya Grahak Panchyat and Anr. v. Dr. Jog Hospital
    1993(2) CPR 252 1993(3) CPJ (Mah. SCDRC)
      
    The complainant, a working woman was operated upon for decompression of the spinal cord. She had been operated upon 10 years ago for the same ailment and had been suffering from pain in her left leg and waist since her first operation. In the complaint it was alleged that she continued to suffer from pain even after the operation because of negligent performance of operation.
      
    The State Commission held that the complainant had failed to establish negligence and also the claim of having paid Rs.40000 as fees was not established. Complaint was dismissed.
       

  • R. Gopinathan v. Eskaycee Medical Foundation Pvt. Ltd. owning Devaki Hospital & Anr.
    1994(1) CPJ 147 (NCDRC)
      
    the complaint, an advocate met with a motor accident on 26.10.1989 injuring his right ankle. He was taken to Devaki Hospital. The duty doctor, Dr. M. Jagannath Senior Consultant, anaesthesiologist attended on him and got e-rays of the injured part and gave necessary treatment. The request to get an opinion from an orthopaedician was refused by the patient. Next morning, he was examined by Dr. K. Chockalingam and operated by him same afternoon without the consent of his wife and his advocate friends. Hospital staff informed them that they had obtained the consent of the complainant himself. During this interval, the complainant’s wife and his advocate colleagues had taken his reports and contacted Dr. Ardhanari, an orthopaedician on whose advice the complainant was admitted to Vijaya Hospital for treatment by Dr. P.V.A. Mohandas, after obtaining discharge against Medical Advice.
     
    (LAMA) from Devaki Hospital, Dr. Mohandas, on the same night re-operated upon the patient and found formation of haematoma and infection. What was necessary was done.
      
    According to the complainant the 1st operation was technically defective and was without proper reduction of the fracture. Inspite of constant and continuous physiotherapy he did not become normal and was till having pain and swelling around his right ankle with radiological changes. The complainant alleged that Dr. K. Chockalingam was guilty of delay in making appropriate timely diagnosis and in carrying out proper and qualified treatment particularly when he was not an orthopaedician. The skin gangrene could have had serious consequences resulting in amputation had the second operation not been performed. Since he had to suffer great mental agony and pain and suffer physical infirmity for the rest of his life he prayed for compensation to the tune of Rs. 6 lacs.
      
    The respondents the doctors and Eskaycee Medical Foundation, filed a detailed joint counter refuting the allegations made by the complainant.
      
    The State Commission after considering the evidence led by the opposite parties dismissed the complaint and held as under:
     
    · That there was no delay in performing the surgery on the injured leg of the complainant.
     
    · The complainant himself had given conscious and voluntary consent for the surgery.
     
    · Respondent No.2, Dr. Chockalingam was a competent surgeon fully equipped to deal with trauma cases involving orthopaedic surgery and even Dr. P.V.A. Mohandas who is undoubtedly an eminent orthopaedic surgeon has not in his testimony cast any shadow or doubt on the credentials of Dr. K. Chockalingam in dealing with orthopaedic cases.
     
    · It is seen from the evidence that there are two methods of surgery particularly in cases of this type of orthopaedic surgery particularly in cases of this type of orthopaedic surgery and both the methods are well recognised. Dr. K. Chockalingam followed the technique prevalent in United Kingdom while Dr. Mohandas followed the technique adopted in America. Both these techniques are well recognised.
     
    · There was no evidence that the complainant suffered severe pain and even if it was so it was due to his discharge from the Devaki Hospital against the medical advice as in orthopaedic surgery the limb immobilisation of the operated joint and the elevated position of the limb are necessary in order to prevent oedema and venus oozing and consequent pain. These precautions were thrown to the winds by the adamant attitude of the complainant’s wife in insisting upon the discharge of her husband against medical advice.
     
    · The gangrene on the affected part could have developed subsequent to the discharge of the complainant from the Devaki Hospital and it may be due to several other factors such as injury sustained by the complainant in accident and second respondent cannot be held guilty of any negligence in the operation performed by him.
     
    · Dr. K. Chockalingam has asserted that there was absolutely no necessity for second operation and if the patient had been left undisturbed he would have recovered fully and Dr. Mohandas has nowhere stated that the operation performed by the second respondent suffered from any irreversible or irreparable defect so as to necessiate second operation. There was no evidence that the present condition of the complainant is due to the operation performed by Dr. K. Chockalingam.
     
    On appeal, the National Commission upheld the finding of the State Commission with further observations:
      
    “The following observations made by Mr. Justice Barrie in Moore v. Lewisham Group quoted by the State Commission applies to the present case:
      
    “When there was two genuinely responsible schools of thought about the management of a clinical situation, the Courts could do no greater disservice to the community or the advancement of medical science than to place the hall mark of legality upon one form of treatment”.
     
    1.HNC (1959)
     
    The National Commission also awarded costs of Rs.10000/- against the complainant to be paid to the doctor and the owners of the hospital.
        

  • Raj Kumar Agarwal v. Dr. B. Mukhopadhyaya
    1995(1) CPJ 260: 1994(3) CPR 574 (Bihar SCDRC)
      
    the complainant alleged that on 8.4.1993 he sustained a fracture of his left elbow for which he approached the opposite party doctor who operated upon him and said a final operation would be performed later. Instead of the opposite party, his assistants were treating him. On 28.4.1993 the opposite party told the complainant that the operation was not necessary and fee deposited will be refunded and just an injection will be injected in the affected bone and then physiotherapy will be started from the date and some medicines were advised and the patient was discharged. The complainant was advised to visit the opposite party after two months. The complainant however consulted another orthopaedician Dr. R. C. Singh, who advised immediate operation. However, when he again consulted the opposite party he asked him to undergo plastic surgery. Again he consulted Dr. R.C. Singh, who told him that plastic surgery was not needed and that such operation may make the elbow non-functional. Thereafter the complainant started feeling pain in his dead bone. The opposite party advised him surgical operation to remove pus and dead bone. The complainant then consulted third doctor who again advised him to get operation done who carried out the operation on complainant’s hand. It was alleged that the complainant was till undergoing treatment and as there was much delay in operation improvement in the functioning of the hand wa not as expected. The complainant, therefore alleged that the situation arose from negligence in diagnosis and treatment as well as deficiency in service on part of the opposite party. He claimed by way of compensation i.e.Rs.915422/- with interest.
      
    The opposite party controverted all the allegations. It was stated that the complainant had sustained compound comminuted fracture. Bone was broken into many pieces. The wound was communiting with the joint which was unfavourable situation and the would wa contamnated and infected. The complainant was also a diabetic patient. Therefore it was decided that to avoid further complications the limb should be given sufficient rest. Therefore the limb was put in plaster cast and inelevated position and proper drug therapy was given. It was found that there was a lot of improvement when the patient was examined on 12.4.1993. Diabetes was also under control and it was decided to perform a wound debridgement so to remove all the contaminants. The procedure was carried out by Dr,. John Mukhopadhya who is M.B.B.S., F.R.C.S., M.E.H. (Ortho). As it is minor procedure it was done by the above mentioned assistant of the opposite party. The procedure wa successful and the wound was covered by skin grafting which was performed on 16.4.1993. That procedure was also successful as the wound became close. It was decided that unless and until a full thickness skin graft was provided over a whole area over the original wound the operation to set right the fracture would not be carried out. Therefore, the operation fee was returned and the patient was referred to a plastic surgeon. The complainant, however disappeared from the opposite party’s care and he consulted some other doctor. The patient also did not undergo the operations which were suggested by the other doctor, but again came back to the opposite party who advised him to go to the plastic surgeon for thickness skin replacement but the complainant patient did not abide by the advice. Therefore, the complainant consulted other doctors who advised him that surgical interference was not necessary. Progress was satisfactory. As the complainant had not taken advice given by the opposite party, no negligence could be attributed to any of the things which happened to the complainant later on. Also the opposite party stated that he had followed all the standard procedures and chosen the correct treatment in the given circumstances.
      
    The State Commission held that the complainant obviously changed the doctors and had not followed treatment suggested by the opposite party. Even though the complainant’s version is believed that Dr. Raju Ratan had expressed the opinion that immediate operation ought to have been carried out. It is not for the State Commission to decide which treatment between the two would have been correct and proper i.e. immediate operation or the treatment given by opposite party.
      
    The State Commission held that when there are two genuinely responsible schools of thought about the method to be adopted in fixing fracture the court should not place hall-mark of legality on any one of the treatments. For this reason it came to the conclusion that merely because the opposite party chose one of the treatments available in treating the fracture, it could not be held that he was negligent. Hence, the case came to be dismissed.
       

  • Nurud din Kutubuddin Bulati v. Dr. L.N. Vohra & Anr.
    1995(1) CPJ 455: 1995(2) CPR 424 (Mah. SCDRC)
       
    the complainant was operated upon by the 1st opposite party for prolapsed intervertebral disc (P.I.D.) , but his back pain did not subside, and he had to be re-operated by another doctor whereafter the pain stopped.
      
    The 1st opposite party stated that the complainant had L4-L5 disc prolapse, which he had removed, Only the prolapsed part of the disc was removed. The doctor who operated upon the complainant the second time stated that during surgery; (i) there was no disc protusion at L4-L5 level but fibrosis which were released; (ii) bulge at L3-L4 level was removed; and (iii) L5-S1 no disc prolapse, no fibrosis.
      
    A subsequent MRI showed that there was prolapse and fibrosis at L5-S1. This proved that the complainant was prone to bulges and fibrosis.
      
    On consideration of these facts and circumstances, the State Commission held that the 1st opposite party had exercised reasonable skill and due diligence. Complaint was dismissed.
         

  • Krishna Kant De v. Dr. I. Roy & Ors.
    1996(1) CPR 364 (West Bengal SCDRC)
      
    the complainant’s daugher was operated by Dr. T. Roy, but it was alleged that after surgery her disability increased.
     
    The State Commission on basis of evidence and facts placed before it held that the patient was suffering from “myopathy” which is a genetic disease of the muscles, and he had operated only to give some relief and improvement as a palliative measure and there was no wrong or negligence on his part, and awarded a token compensation of Rs. 100/- in favour of Dr. T. Roy.
       

  • Tapan Kumar Nayak & Ors. V. State of Orissa & Ors.
    1997 (2) DPJ 14: 1997 (2) CPR 104 (NC).
       
    Child of the complainants was an administered DPT injection and oral polio drop. He developed reaction resulting in damage to his brain causing muscular deformity and deficiency.
      
    The National Commission held that the enquiry report submitted by the District Immunization Offer, Cuttack clearly mentions that none of the other children who had also been vaccinated out of the same batch of the vaccine had suffered any complication of the present kind and hence it could not be said that there was any defect in the vaccine which was administered to the infant. It also held that the complainants are not consumers as there was no hiring of service for consideration between then and the opposite parties. While confirming the order passed by the Orissa State Commission, that there was no scope for awarding relief to the complainant under the C.P. Act, it strongly recommended to the State Government to render all possible assistance in proper rehabilitation of the child.
        

  • BASUDEV GOSWAMI v. DR. BHASKAR DAS
    III (2001) CPJ 262
     
    Consumer Protection Act, 1986 - Section 2(1)(g) – Medical Negligence - Deficiency in Service – Operation performed for setting right the leg - Condition not improved after operation – Negligence and carelessness alleged – Allegation has to be examined after obtaining expert opinion – Elaborate evidence required – Dispute cannot be decided in summary procedure - Complaint dismissed.
     
    Held : According to the Forum this dispute cannot be decided in a summary procedure. Forum observed that elaborate and long evidence would be required for proper determination of the case. Consequently the Forum declined to exercise jurisdiction. The Forum placed reliance on a case reported in 1991 CPR 52 and another case reported in 1994 CCJ 202. On consideration of the materials on record we fully agree with the views taken by the Forum. It may be remembered that everybody cannot expect that he would derive benefit from the treatment. The operation was done yielding no result to the patient. The patient was advised to take physiotherapy regularly but that direction was not followed. The surgeon referred the patient to another doctor in Calcutta. The complainant took the patient to another doctor. There again no improvement could be noticed. There is no specific allegation of carelessness or negligence on the part of the surgeon. As observed earlier everybody cannot expect to get benefit from the treatment. We agree with the view taken by the Forum to the effect that evidence of expert would be needed to establish negligence on the part of the surgeon. It may be observed that the adjudication of the dispute in hand cannot be done within a time frame. So we fully agree with the views expressed by the Forum. For the reasons aforesaid we think that the case was rightly decided by the Forum and the direction given by the Forum to the effect that the complainant may seek remedy before the appropriate Forum was quite justified. In that view of the mater we find no merit in the revision case which is hereby dismissed on contest.  (Para 5)
      
    Result : R.P. dismissed.
     
    Mr. Justice S.C. Datta, President - This revision petition is directed against Order No. 21 dated 27.8.1997 whereby the Forum dismissed the case on the ground that it was not maintainable. According to the Forum elaborate and long evidence will be required for proper adjudication of the case and evidence of medico surgical experts will also be necessary. The Forum observed that it was not equipped with any infrastructure to undertake such an enquiry. In that view of the matter the Forum declined to entertain and adjudicate the dispute between the parties.
     
    2. The case of the complainant is that he hired the services of Dr. Bhaskar Das (opposite party) for surgical treatment of his daughter, Beauty Goswami. On 8.4.1994 the doctor examined the daughter and opined that she required operation for setting right her right leg. Doctor asked the complainant to do some investigation and to obtain an X-ray report. As per advice of the doctor the daughter of the complainant was admitted in the Janakalyan Nursing Home at Bhadreswar on 16.8.1994 and on the next day operation was performed. The patient was discharged from the Nursing Home on 20.8.1994. The complainant took the patient to the chamber of Dr. Das on 25.9.1994 who referred the patient to Shyamal Banik (opposite party No. 2) for Physiotherapy. As the condition of the patient did not improve she was taken to Dr. D.K. Mishra of Calcutta as per advice of Dr. Das. As the condition of the patient was deteriorating she was taken to another doctor whose name was Dr. A. Roy Chowdhury and followed his advice. Even then the condition of the patient did not improve. The patient was unable to walk. The complainant again approached Dr. Das but in vain. Subsequently he has brought the action against the opposite parties alleging deficiency in service.
      
    3. The opposite party denied that there had been any negligence/carelessness on his part in the matter of surgical operation. According to the opposite party the patient did not recover on account of her failure to follow the advice given by Physiotherapist. The patient was asked to receive regular physiotherapy but this advice was not followed.
      
    4. At the time of opening of the case the opposite party raised the question of maintainability of the case on the ground that dispute between the parties cannot be resolved in a summary way. Elaborate evidence is required to be taken, discussed, analysed and evaluated before the question of negligence or carelessness is decided.
      
    5. It is not disputed that the opposite party No. 1 is an Orthopaedic Surgeon and he is, therefore, competent to perform surgery upon the patient. It is also not disputed that the operation was done for consideration. The condition of the leg of the patient having not improved the complainant being the father of the patient has lodged the complaint petition alleging negligence and carelessness on the part of the surgeon. The case of the opposite parties is that the patient did not receive the physiotherapy regularly but received the same only for two days resulting in no improvement in the situation. The opposite party No. 1 has categorically stated in his written objection that as a prudent doctor he did whatever was required of him to be done under medical science. The Forum noticed that such a case has to be proved by producing oral evidence. According to the Forum the question whether the surgeon did the operation properly and according to medical science and whether there had been any negligence or carelessness in the operation has to be examined after obtaining opinion or evidence of some medico surgical experts. According to the Forum this dispute cannot be decided in a summary procedure. Forum observed that elaborate and long evidence would be required for proper determination of the case. Consequently the Forum declined to exercise jurisdiction. The Forum placed reliance on a case reported in 1991 CPR 52 and another case reported in 1994 CCJ 202. On consideration of the materials on record we fully agree with the views taken by the Forum. It may be remembered that everybody cannot except that he would derive benefit from the treatment. The operation was done yielding no result to the patient. The patient was advised to take physiotherapy regularly but that direction was not followed. The surgeon referred the patient to another doctor in Calcutta. The complainant took the patient to another doctor. There again no improvement could be noticed. There is no specific allegation of carelessness or negligence on the part of the surgeon. As observed earlier everybody cannot expect to get benefit from the treatment. We agree with the view taken by the Forum to the effect that evidence of expert would be needed to establish negligence on the part of the surgeon. It may be observed that the adjudication of the dispute in hand cannot be done within a time frame. So we fully agree with the views expressed by the Forum. For the reasons aforesaid we think that the case was rightly decided by the Forum and the direction given by the Forum to the effect that the complainant may seek remedy before the appropriate Forum was quite justified. In that view of the mater we find no merit in the Forum.
         

  • Sanjeev Verma v Janpriya Accident and Fracture Hospital through Manager
    2001 (3) CPR 2
      
    STATE CONSUMER DISPUTES 
    REDRESSAL COMMISSION,
    MADHYA PRADESH :BHOPAL
         
    Consumer Protection Act,1986-Sections 2 and 17(1)(a)-Medical negligence-Complainant suffered fracture in neck femur head of his leg and was operated by the opposite party doctor-Pain and fever persisted and complainant consulted other private hospital where second operation was carried out to remove Richard Plate fixed by the opposite party during first operation and neck of femur bone was removed -Leg shortened by 3.5″-compensation claim for negligence on part of the opposite party-Difference of opinion among doctors may not amount to negligence -Opposite party doctor had taken all pre operative and post operative care but wound had sepsis infection -only difference which complainants witnesses doctors stated was that some strong antibiotics should have been given.-Opposite party doctor had tried to protect the femur neck to save the complainant from shortening his leg and had taken all precautions to diagnose the patient – Complainant could not said to have proved negligence during operation or post operative care – Complaint was liable to be dismissed.
    (Paras 8 to 11 and 15)
      
    Result : Complaint dismissed.
       
    Important Point
       
    If there is difference of opinion about the treatment by some docrtors , it cannot be said that Doctor was looking after the patient was negligent in any way.
       
    ORDER
       
    B.L KHARE, Member- This is a complaint under Section 17(1)(a) of the Consumer Protection Act , 1986 (for short the act) to claim compensation of Rs 14,92,355/-together along with costs for the proceedings for the medical negligence against Janpriya Accident and Fracture Hospital and Dr Bajpai a visiting orthopaedic surgeon of the above hospital.
      
    2) The facts of the case are that complainant Sanjeev VErma is a State Government servant and serving as a sub engineer in Public Works Department (PWD). of Govt Of Madhya Pradesh.The complainant met with an accident on 28-4-1994 .He approached the Janpriya Accident and Fracture Hospital where the opposite party no 2 dr Pramod Bajpai examined him.He assured him that this was a hospital having well equipped operation theatre ,because the complainant had a fracture in the neck femur head of his left leg , therefore operation was necessary Dr Bajpai assured him that he will perform the operation and within a month he will be able to move normally .On this assurance the the complainant admitted himself in the hospital of the opposite party no 1 on 30-4-1994 where the opposite party no 2 Dr Bajpai performed an operation of his left leg.Dr Bajpai inserted a Richard Plate and tightened with screws ,the complainant remained admitted in the hospital.On 4-5-1994 his wound was opened ,washed and dressing done but it was alleged by the patient that he was continuously having pain and then the compalint of a fever was developed.On consultation with Dr Bajpaithe opposite party no 2 gave him some analgesic injections and to cjheck the infection some antibiotic was also prescribed.The medicines didnot respond and he was continuously having pain and fever.On 7-5-1994 ,his brother-in- law Dr O.P Saxena who is M.D medicine came from Gwalior to see his condition then he told the patient that after 7 days of operation there should be no pain and fever .It seems that there has been some infection in the bone which has developed in Oiestiomolitis.On 8-5-1994 when complainant was having acute pain then Dr O.P Saxena asked Dr Pramod Bbajpai to open the wound and dress it again.It is alleged that when the dressing was opened therte was lot ofd pus in the wound which was drained out and after cleaning and washing the dressing was done.Dr Saxena apprehended the infection in the bone but Dr Bajpai said it was a superfluous wound which will be cured in a few days.The pain persisted and from time to time the medicines were changed.Dr Pramod Bajpai suspected malaria and therefore drugs for controlling malaria were also added but there was no relief .Therefore on 10-5-1994 on the suggestion of Dr Saxena Urine culture was advised by Dr Bajpai.On the basis of urine culture report some medicines were added on 13-5-1994 but there was no relief. Even then on 17-5-1994 the complainant was discharged from the hospital. The complainant was not willing to leave the hospital becsause he was having pain and fever ,but Dr Bajpai discharged him.The complaint states that when he complained about pain and fever , the opposite party no2 Dr Bajpai didnot listen to him and had not recommended any test of blood ,urine , or pus culture. Therefore he himself on 29-5-94 resorted to pathological test and pus culture was done in which sensitivity against some drugs was observed . He also went for X-ray ,radiologist Dr K.K Agrawal suspected infection in the bone therefore suggested that the complainant should consult Dr Taqiraza.HBead of Dept of Orthopaedics in medical college Jabalpur.Dr Taqiraza after examination observed sepsis pus forming and acute infection of the bone.He also advised removal of Richard Plateand cutting the femur head even then Dr Bajpai did not agree and stated that this infection is superfluous and will be cured after sometime.When the pain and fever persisted his family members took him to bombay and consulted Dr Jhunjhunwala of Bombay Hospital Dr Jhunjhunwala after examination gave opinion that there is bone infection and therefore Richard plate will have to be removed and the femur head will be cut .On this Dr Jhunjhunwala performed an operation to remove the Richard plate and the neck of the femur bone this has shortened his leg by 3.5 inch and has created a permanent disability.The complainant alleges that this has been due to the carelessness of opposite party particularly Dr Bajpai that septic developed in the boneand therefore femur head was cut resulting in the shortening of his leg and making him permanently disabled.
        
    The complainant therefore approached the commission for a compensation of medicines totalling Rs 92355/- and compensation of Rs 14 lacs for physical and mental torture and also costs of the proccedings amounting to Rs 3250/- and advocate fees Rs 2500/- thus total Rs 14,98105 /- from the opposite parties.
       
    3) The opposite parties resisted the claim and submitted that they have taken all precaution and have acted bonafidely in the interest of the patient Dr Bajpai stated that he took a decision to implant Richard Plate to save the neck of femur which was fractured to save the complainant from disability.He said that it was simple to cut and to remove the neck of the femur but it would have resultede in shortening of the leg therefore he decidede in the interest of the patient to operate and fix the Richard plate. He has taken all precautions to check the infection and feverThe complainant was alright on 17-5-94 and was therefore discharged from the hospital with a direction that he should come on monday for dressing of the wound but it was the patient who neglected the advise and did not care to visit the hospital for dressing purposes or or for taking some advise for further treatment.At the time of admission in the hospital he has taken all precautions and treatment and preoperative tests were conducted and when everything was alright the patient was operated .After the opeartion post operative care was taken .On the compalint of fewver and pain the patient was adviced for culture analysis report on 7-5-94 as is evident from the report dated 10-5-94 of Saket Pathology Jabalpur attached with complaint again urine culture was done and on the basis of report medicines were added in the prescription.From the very beginning antibiotics and painkiller were administered .On 17-5 94 when the patient was discharged his wound sepsis and infection was controlled and he was prescribed medicines and was advised to contact as and when necessarybut after 17-5-94 complainant did not contact him and approached other doctors.Therefore for any later development party cannot be held responsible.The post operative treatment was given by him as per medical norms and when pus and urine culture reports were received more effective medicines were added, therefore it cannot be alleged that he has not taken proper care or even acted in a negligent manner.
        
    4) In this case on evidence adduced we have to examine whether opposite party Dr Bajpai can be held responsible for medical negligence?
       
    5) We have gone through the evidence .The complainant has produced evidence of his relatives who visited him when he was admitted to the hospital.Both the relatives are medical practitioners.One Dr O.P Saxena who is a doctor stated that he visited the complainant on 7-5-94 at 2 pm in the nursing home.On that day patient was suffering freom severe pain and fever.Dr Saxena states taht generally a wound hewals 7 days after the operation but when there was pain in the place of opeartion it was a case of septic therefore he discussed with the opposite party Dr Bajpai .On 8-5-94 he consulted and suggesated to DR Bajpai to open the wound and dress it again , when he opened the wound then a huge amount of pus was drained out then the pus sample was collected and sent for culture sensitivity test On 10-5-94 report was received on the basis of the report was received and on the basis of the report sensitive drugs were started. The drugs for malaria and U.T.I infection for which he has prescribed medicines . Dr Saxena differed with operating surgeon Dr Bajpai and states that on 2-6-94 when he visited again he found that though the complainant was relieved on 17-5-94 he was still having pain at the point of operation and pus was coming out during dressing .Dr Saxena further states that treatment which Dr Bajpai was administering was not giving desired results to relive pain and infection .From the very beginning he apprehended that it was a case of bone infection.Similarly Dr M.P Khare who is another relative of the complainant also stated that the bone infection was due to negligence of the opposite party Dr Bajpai because post operative care was not taken by the opposite party .He stated that hygenic condition of the hospital was dissatisfactory, nursing home was not neat and cleanwhich might have led to infection after operation of femur.
       
    6) During the course of arguements Shri Mohan Choksey learned counsel for the complainant nstated that when there was infection in the place of operation then Dr BAjpai should have recommended ESR .Toatal LEucocyte Count (TLC), Diff Leucocyte count(DLC) test to ascertain level of infection which Dr BAjpai failed. On the other hand , Shri Ajay Mishra learned counsel for the opposite party submitted that when pus culture and tests were already got conducted on 10-5-1994 and on the basis of this report , medicines were changed and medicines of malaria and UTI were also added, therefore there was no necessity to conduct another test.
       
    7) On the basis of the two affidavitsof Dr Saxena and Dr Khare the complainant alleged medical negligence as the doctors differed on diagnosis and treatment of the patient (complainant) . The book of Tort Law Library – Medical negligence ” By Michael A Jones , Professor of Law of University of Liverpool,Second Edition 1996 under chapter 3 standard of care General Principles in Para 009 has dealt with the question wherein it is observed thus:-
       
    ” In Hunter V Hanley 1955 S.C 200,204-5;DUNNE V -NATIONAL MATERNITY HOSPITAL (1989) I.R 91,109 (SUPREME COURT OF IRELAND); sYMMONS(1990) 6 p.n.201 LORD President Clyde dealt with the question of different professional practices in these terms :
    In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man is clearly not negligent merely because his conclusion differs from that of the othernor because he has displayed he has displayed less skill or knowledge tht others would have shown.
        
    The true test for establishing negligence in diagnosis or treatment on the part of doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.”
        
    8) This makes clear that if there is difference of opinion about the treatrment by some doctors , it cannot be said that the doctor who was looking after the patient was negligent in any way.
        
    9) The Supreme Court in the case of Achutrao Hartibahu Khodwa and others v State Of Maharashtra and Others has observed thus :
    “A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercis a reasonable degree of care. This is the least that a patient expects from a doctor.The skill of a medical practitioner varies from doctor to doctor.The very nature of the profession is such that there may be more than one course of treatment which may be advisable to treat a patient.Courts would indeed be slow in attributing negligence on the part of doctor if he has performed his duty to the best of his ability and with due care and caution.Medical opinion may differ with regard to the coures of action to be taken by a doctor while treating a patient,but , as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds it that he has attended the patient with due care skill and diligence and if the patient till does not survive or suffers permanent aliment it would be difficult to hold the doctor guilty of negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable.”
        
    10) The Supreme court in case of Poonam Verma v Ashwin patel & others observed that negligence as tort is the breach of a duty caused by Commission to do something which a reasonable man would do or doing something which a prudent and resonable man would do.The definition involved the constituents a legal duty to exercise due care, breach of the duty and consequential damages. The breach of the duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances would do, orby going some act which a reasonable prudent man would not do. To determine the medical negligence the principles laid down in Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbole & another 3 were reiterated wherein it has been laid down that a Doctor when consulted by a patient owes him certain duties namley (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.
         
    11.  In the case in hand, from the record we find that before operation a through medical check-up was done at jabalpur Hospital & Research Centre and after operation where there was pain and pus was coming Dr. Bajpai again got conducted medical examination from saket pathology. The report is attached as C-5, C-6, C-7 and C-8, Treatment prescribed also reveals that broad spectrum antibiotics were given to the patient and when it was found that the patient was resistant for Ciplox after test and pus culture on 10-5-1994 more sensitive medicines were prescribed and as per version of Dr. Bajpai has taken a reasonable care after operation. In the discharge ticket on 17-5-1994 it has been mentioned that “patient had wound sepsis infection is controlled” (C-10). In this prescription some medicines were prescribed which are for pain and control of infection. the only difference which the complainant’s witnesses Dr. O.P.Saxena and Dr. M.P.Khare have stated that some strong antibiotics should have been given. This does not mean that the opposite party has acted diagnosis and treatment may differ from Doctor to Doctor. The opposite party has stated that he could have removed the femur head on the same date but with good intention he tried to operate and fix a Richard Plate and tightened with screws to save the patient from shortening of his leg and have taken all precautions to diagnose the patient. Dr. Bajpai had further stated that inspite of talking all care infection remains a formidable challenge in orthopedic surgery. Our attention was drawn to Para 3 of Chapter 26 General principles of infections of the book Campbell’s Operative Orthopaedics Edited by A.H. Crenshaw Volume One Seventh Edition, 1987, which read thus :
         
      ” Despite the availability of a growing number of potent antibiotics and the increasing sophistication of modern surgical techniques, infection remains a formidable challenge in orthopedic surgery” 
          
    12  In well renowned scientific Journal “The Journal of bone and Joint Surgery” (April 1996) issue, a report has been published on the
          operative and post-operative infections, which clearly confirm that despite all care, caution and treatment infection is known common problem and that can be cured by proper medication. In the famous book of Campbell’s Operative Orthopaedics the General principles of infection have been defined in Chapter 26 wherein this aspect has been accepted that despite availability of growing number of potent antibiotics and increasing sophistication of modern surgical techniques, infection remains a formidable challenge in the Orthopaedics Surgery, therefore, it is the submission of the opposite parties that they cannot be alleged to have committed any medical negligence.
         
    13.  While dealing with the case of medical negligence, the Madhya Pradesh High Court in case of Sudha Gupta and others v. State of M.P. and others has observed thus : 
          
      ” Negligence – Burden of Proof – Negligence is omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs will do or doing something which a prudent and reasonable man would not do – There must be direct nexus between the death of a person and the negligent act - The burden of proving negligence rests upon the person who asserts it – In medical negligence cases, it is for the patient to establish his case against the medical man to prove that he acted with sufficient care and skill. (Paras 30-32). “
         
    14.  The National Commission has also taken same view in several other judgment that mishap during operations cannot be said to be deficiency or negligence in medical services “Negligence has to be established and cannot be presumed.” See, the decisions of National Commission in case of Kanhiya Kumar Singh v. Park Medicare and Research Centre. Similar view has been taken by the MRTP Commission in case of P.K. Pandey v. Suraj Nursing Home.
         
    15.  From the evidence on record we find that the complainant has not produced any opinion of Medical Expert to prove that the opposite party has acted in anyway negligently during operation or has not taken proper post-operative medical care. We, therefore, do not find the opposite party guilty of any medical negligence and we are of the opinion that the complainant has not been able to prove medical negligence against the opposite party. Therefore, the compensation from the opposite party. 
         
    16. In the result, complaint fails and is dismissed with no order as to costs. A copy of this order be conveyed to the parties.
         
    Complaint Dismissed.
        

         

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By |2022-07-20T16:42:35+00:00July 20, 2022|Uncategorized|Comments Off on Doctor’s Favour / Orthopaedic Surgeon

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