Messrs Spring Meadows Hospital v. Harjot Ahluwalia
In 1998 the Supreme Court in Messrs Spring Meadows Hospital v. Harjot Ahluwalia widened the scope of the definition of ‘consumer’ under Section 2(1)(d) of the Act. The hospital was also held liable on the principle of vicarious liability (when the master is held liable due to a negligent act or omission of his servant). In this case, Harjot Ahluwalia was left brain damaged after a wrong injection for treatment of typhoid (instead of chloromycetin, chloroquin was injected) was given to him by a nurse who had in turn been instructed to give the injection by the resident doctor. The Court awarded compensation not only to the child who suffered a grave injury but also to his parents who were considered consumers along with the child.
The Court reasoned that the parents would support the child during their life and also for the mental agony caused to them for the injury of their child. The Court said that the definition of a ‘Consumer’ is wide and includes not only a person who hires or avails services but also the beneficiary of such services. In present this case the child as well as his parents would be a consumer and awarding compensation to both of them for injury each one of them has sustained is proper.
The National Commission had awarded the compensation and Spring Meadows had appealed to the Supreme Court against the judgment of the National Commission. The Court said, “If the parents of the child having hired the services of the hospital are consumers within the meaning of Section 2 (1)(d)(ii) the child is also a consumer being a beneficiary of such services hired by his parents in the inclusive definition.” The Court also commented upon Section 20-A of the Medical Council Act, 1956 which deals with Medical Ethics by saying “It is the function of medical ethics to ensure the superiority of a doctor is not abused in any manner.”
Further the Court observed that the relationship between the doctor and the patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another. And the general distress of one that is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner.
Manju Kumar Choudhary & Anr v S.K Ghosh
1997 (3) CPJ 246 (WBSCDRC)
Complainant’s younger brother , a schizophrenic patient was admitted in the opposite party Nursing Home , and for that they were paying Rs 2000/- pm to meet various charges including lodging , food etc. But , they increased this amount to Rs 3000/- pm at their sweet will , failing which they had asked the complainant to take away his brother.
The District Forum held that this was not a consumer dispute. Allowing this appeal, the State Commission by a majority order set aside the order of the district forum and held that : i) this is a consumer dispute;ii)directed the nursing home not to remove the patient till he is fully cured.;iii)ordered that the complainants shall pay the charges to nursing home of Rs 2500/-p.m from the date of order.
However the president of the state commission in his dissenting order observed that :
” There is no reason to hold that the complainant is a consumer.It is not a case of medical negligence against a Doctor or Nursing Home. Neither it is a case of deficiency of service as there cannot be a hiring of service without payment of consideration. In this case the complainant is not willing to pay the fixed charges of the opposite party. The District Forum has discussed the case with good reasons . In the above order proposed by Prof Kar no reason has been shown why the judgement of the lower court should be set aside. Considering the case in all its aspects I think that the views expressed by the District Forum are correct”
f.A.M Mathew v Director , Karuna Hospital &Ors
1998(1) CPJ 476 : 1998(1) CPR 39 (Kerala SCDRC).
The complainant’s minor son aged 8 1/2 years was taken to Karuna Hospital for fever and tonsillitis . On advice of the doctor the staff nurse gave injection Paracetamol in the left buttocks , following which the boy developed left foot drop .He was referred to a neurologist who diagnosed the condition as left sciatic nerve palsy , and the left leg remained disabled. the condition occured due to the injection needle entering the sciatic nerve due to the negligence of the nurse.
The district forum dismissed the complaint on the ground that injury to the sciatic nerve is possible for several reasons , and the complainant had failed to prove that the disability was caused due to the injection.
On appeal before the State Commission , Dr Lucy Jacob (2nd opposite party) contended that this was an accepted complication and if the injection had caused any injury to the sciatic nerve , it was accidental.
The state commission noted that the staff nurse had left employment soon after the lawyer’s notice and could not be contacted . Also the Diploma in Nursing issued by the Holy Family School of Technology, Ettumannoor was not recognised by the Kerala Nurses and Midwives Council , hence she was not qualified to administer the injection . This amounted to actionable negligence.A recent decision of the National Commission in Ahluwalia (minor ) through his parents v Spring Meadows Hospital and Ors that the hospital was responsible for the action of its employees and is liable for the consequences of their negligence , the state Commission held that the child had suffered on account of negligence of an employee of the hospital , hence the hospital is liable to pay damages. Rs 1 lac was awarded as compensation and Rs 5000/- as compensation for the complainant for mental agony and Rs 1000 as costs.
M/s. Avadh Hospital and Heart Centre through the Partner & Ors. v. Mrs.Mugdha Paul
2001 (2) CPR 263
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, UTTAR PRADESH : LUCKNOW
Consumer Protection Act, 1986 – Sections 12 and 17 – Medical negligence – Complainant suffered fracture of humerous right and was treated at hospital of appellant – Negligent deficiency alleged in act to operate when there was no necessity of doing it which complicated the matter – District Forum found that what was originally a simple spiral fracture had been converted into a multiple fracture during treatment ad held it as deficiency in service on part of appellant – Appeal – No material to suggest as to why fracture spiral shaft needed surgical intervention – Documents revealed that condition of patient became bad to worse after two surgical interventions – It supported complainant`s point that operation and treatment was given with a view to procure as much money as could be – Defence plea that opposite party was pressurized by complainant to undertake surgery was contrary to principles of medical ethics – impugned order holding appellant guilty of deficiency in service called for no interference. (Paras 9 to 12)
Result : Appeal dismissed.
When doctor deliberately erred in carrying out surgical intervention when patient`s case was not of that nature, doctor cannot be absolved of causing undue suffering and disability on the complainant.
D. D. Bahuguna, Member – This is an appeal against the judgement and order dated 25-3-2000 passed by Dsitrict Consumer Forum, Lucknow in complaint case No.494 of 1996. Briefly stated the facts of the case are as follows:
2. Smt. Mugdha Paul, wife of Sri Subeir Paul, R/0 D-186/D, LDA Colony is a house-wife. On 3-3-1996 the complainant, Mugdha Paul got injured when she fell down in her house. The complainant was taken to Awadh Hospital and Heart Centre by her hushand. She was admitted in the hospital and Dr.Vineet Kumar Agarwal, opposite party No.2 was intimated. Dr.Agarwal was not sure of the nature of the fracture occurred. The complainant was advised to go for X-ray. The X-ray machince of opposite party No.1, Awadh Hospital, was not functioning. Therefore, the complainant was referred to the chamber of Dr. Vineet Kumar Agarwal located at 1, Patel Nagar, Alambagh, Lucknow where X-ray was got done. It was found that a simple fracture was present. After a period of five days complainant was called for plaster. On 8-3-1996 the fracture was plastered by opposite party No.2, Dr. Agarwal, A third time X-ray was taken and it was found that the bone was not set at the right position. The plaster was got done three times and was repeatedly cut down by opposite party No.2 Dr.Agarwal. Later on, Dr.Agarwal asked the complainant to prepare herself for an operation which was fixed for 11-3-1996. On the advice of the doctor, she was asked to undergo a series of pathological tests. The X-ray report showed that the fracture was a simple one, but after the operation the complainant came to know that the bone was in four pieces and certain screws were inserted to set the bone. She was discharged on 13-3-1996 for removing the stitches. The stitches were removed by an ordinary blade and not by sterilized blade. Later the plaster was again made. Two stitches were left, as they had not dried. 18-4-1996 was fixed for removal of plaster. The matter was complicated b the doctor as the operation was carried out in spite of the fact that the fracture was an ordinary one and was recoverable through an ordinary plaster only and without appropriate reasons the bone was further weakened when certain holes were made in it for purposes of inserting the screws and wire and the stitches were removed without any care. On 25-3-1996 a red spot was seen and the pain was relatively increased. Therefore, the complainant approached the opposite party, Dr.Agarwal who made a window in the plaster and dressing was made. The complainant felt increased pain and the entire arm was swollen. The doctor was again approached on 1-4-1996. After examination it was found that the patient was having high temperature of 102`C. Certain antibiotics were given and tests were carried out which proved that a severe infection was present. The complainant incurred heavy financial and personal loss as extensive and high doses of medicines including injections administered, but all went to vein. The fracture started giving more and more problems. A series of x-rays and culture tests were made. The complainant faced severe pain while the plaster was cut down and re-plaster was done. The second culture report revealed negative report in spite of the fact that there was swelling and pain. This report was given by opposite party No.1. The Complainant visited the doctor twice every day from 3-3-1996 to 15-3-1996 for dressing as per advice of the doctor but there was no improvement and the case went from bad to worse. Later, on the complainant, consulted Dr. Bhargava on 28-6-1996, who is a Consultant Orthopaedic Surgeon and Traumatologist. He studied the entire report including the last summary report issued by the opposite party No.2 on 19.6.1996. Dr. Bhargava, after seeing the entire report was of the opinion that the fracture was simple and was recoverable without operation, but after operation the case became full of orthopaedic complications, infection of high degree was present. Nerve has paralysed and therefore the hand is not moving, and the two operations had weakened the bone.
3. Subsequently Dr. Bhargava, used `Meghapulse’ therapy rays for 10 days and Faradt stimulation was also introduced on the paralyte hand. Treatment is still continuing. The act of the respondents to operate when there was no necessity of doing it and further inserting the screws and wire and later on removing the screws and wire during the second operation with the intention of grabbing money from the complainant. The complainant was therefore lodged with the District Consumer Forum, Lucknow claiming a sum of Rs.50,000/- for the expenses incurred during the treatment along with 24% per annum interest and Rs.3,00,000/- as compensation against physical injury done to the complainant and a sum of Rs.1 lacs was also claimed for mental harassment and family disturbance.
4. In the written version before the District Forum, the opposite parties denied the allegations of the complainant and stated that there has been no negligence or deficiency on their part in treating the complainant. The opposite party No.2 is a competent and qualified Orthopaedic Surgeon and an operation was done to set the bone, but there was curvature of 10% on the fractured bone. The opposite party No.2 had to plaster it thrice to set the bone and advised that the bone would become normal in due course of time but the complainant and her other relatives insisted for complete recovery at the earliest. Hence the opposite party No.2, the doctor, was left with no option but to undertake surgical intervention with the written consent of the patient and other attendants. It is normal to insert screws and wire in surgical operation of bone and thereafter the bone does retain. The infection was of moderate nature and the treatment of bone ailments is prolonged as well as costly. The wires and the screws had to be removed during the second operation in order to prevent the spread of infection. In this case it was done with the consent of the complainant, but there was no guarantee to cure. Therefore, the complaint has been filed with malafide intentions.
5. The learned District Forum, after hearing both the parties, came to the conclusion that what was originally a simple spiral fracture of humorous right has been converted into a multiple fracture during the treatment of the complainant by the opposite parties-with the result that the operated parts got infected and the opposite parties failed to cure it. The Forum further held that during the treatment the hand of the complainant had become almost paralysed without any assurance from any medical quarter that the normalcy is likely to be restored. The complaint was therefore allowed and the opposite parties 1 and 2 were ordered jointly and severally to pay to the complainant a sum of Rs.3,00,000/- by way of compensation and damage. A sum of Rs.2,000/- as cost was also awarded to the complainant. It was also ordered that in case the payment thus awarded is not made within the time frame, the opposite party were to pay interest at the rate of 9 % per annum on the two sums upto the date of payment.
6. Aggrieved of this order of the learned District Forum, the opposites party have come in appeal.
7. In the grounds of appeal it has been stated that the amount claimed exceeds Rs. 5 lacs. Therefore, the Forum has no jurisdiction to entertain the complaint. The forum had not taken into consideration the evidence field by the appellant Nos. 1 & 2 . There was no negligence on the part of the appellants in treating the patient. The application for impleadment of Insurance Company has been illegally rejected by the learned District Forum. Similarly the application for appointment of a medical panel and for obtaining expert opinion was not allowed by the District Forum.
8. The respondent filed affidavit alongwith written arguments and other papers containing the sequence of events, treatments paper from various hospitals and other documents. We have also heard the arguments of the learned Counsel for the two parties. The learned Counsel for the appelant has stated that the free-treatment was given to the complainant when the complications arose. It was also argued that learned District Forum rejected the request of the opposite party to constitute a medical panel which could have given the expert opinion on the matter. The forum also did not accede to the request of the opposite party to implead the insurance company as a necessary party in the case. On the other hand, the learned Counsel for the complainant has argued that no free-treatment was given and every bit of money was charged from the complainant right from day one of the treatment. Her case was attended with negligence with the result that she is still suffering and her hand had become disabled.
9. We have gone through the entire papers field in the form of paper book by the complainant. Admission of the complainant in Avadh Hospital & Heart Centre, opposite party No. 1 is admitted. Spiral fracture shaft (R) humerous has also been admitted by the opposite party No. 2, the doctor. Two time operation and plastering several times have also been admitted by both the parties. The point of dispute is that what was originally a spiral fracture which should have been recovered by normal process and plastering turned into a complicated fracture during the course of treatment, especially after two surgical operations resulting into disability of the hand of the complainant. The case of the opposite party Nos. 1 and 2 in this connection is that the complainant underwent surgery because of the fact that bone could not have been set absolutely alright and on the insistance of the complainant and her relatives, surgical intervention had to be made and later on another operation had to be carried out to remove the screws and the wires. In this process no negligence was committed by the opposite parties and the treatment was done as per normal medical practice and norms. Examination of medical papers reveal that the patient was brought to the doctor on 3-3-1996 who found active finger movement. The doctor on 8-3-1996 diagnosed the fracture as `Spinal Fracture Shaft ( R ) humerous’ (pages 25, & 26 of papers filed). On 8-3-96 the doctor advised admission for operation on 11-3-1996. Accordingly, on 11-3-1996 the doctor carried out the operation and noted on page 27 of the papers “O.R. and I.F. done on 11-3-1996 and the patient was called for review on 8-4-1996. Before that date complications had occurred and the patient visited the hospital on 17-3-1996 and 20-3-1996. Page No.28 of the back-up papers reveal that the doctor had observed “10% Lat. angulation of all the per reduction skiagrams at the fracture site” and advised O.R. and I.M. again. Page 30 of the papers filed is a clear finding of the doctor that the fracture was spiral shaft ( R ) humerous. Therefore, it is not understood as to why surgical intervention was necessary in the case. The argument of the opposite party No.2 is that the complainant and her relatives put pressure on him for carrying out surgical operation as the hand had not been set properly by mere plastering. Doctors are required to observe the norms of medical ethics rather than succumb to wishes and pressures of the patients and their relatives. Examination of the other papers will reveal that the condition of the patient had become from bad to worse after two surgical interventions and in the normal course of medical practice, the doctor ought to have been known the repercussions. Therefore, there appears to be force in the contention of the complainant that the operation and the treatment in the opposite party hospital was with a view to procure as much money as he could have extracted from the complainant. Not only this, both the operations worsened the condition of the patient and she had to consult other doctors who found infection (page 32 of the paper book). On pages 33 and 34 is the case history of the complainant prepared by opposite party No.2, Dr. Vineet Kumar Agarwal which clearly indicates that fragments were fixed by intra-fragmentary compression with screws and wiring and on 22-3-96 two days after removal of stitches, soakage was seen on the POP. The report further says that there was in duration around the surgical site and on dressing, pyogenic discharge was seen regular dressings for a period of two months could not save the infection. Radiologically and clinically when the union was found and confirmed, re-exploration was done on 5-6-1996. All the screws and wires were extracted, post-operatively radical M. palsy was detected little abnormal mobility was found and at present the patient is on regular dressing, but when the condition of the patient was deteriorating, she got herself examined from Brahmesh Orthopaedic & Trauma Centre which did not confirm the report of the Opposite party No.2. The opposite party No.2 had confirmed the union but the said Brahmesh Hospital confirmed `un-united fracture of the shaft of the humerous (R )’ of four months duration associated with the discharging sinus and post operative radial nerve, palsy resulting in Drop Wrist. The report further indicates that the elbow joint movements were grossly restricted hardly 10 to 15 range due to long immobilization. She was therefore advised Megapulse therapy and Faradic Electrical stimulation as well as physio-therapy. Nerve condition study was also performed by the Sanjay Gandhi Post Graduate Institute of Medical Sciences, Department of Neurology and the report of the Institute shows profuse spontaneous activity from surface recording, suggesting denervation. The inference drawn by the Institute was complete functional disintegrity of radial nerve at upper arm. (page 37 of the paper book). The patient had to go to Balrampur Hospital, which is the State Hospital where she was admitted for treatment of the complications which arose as a result of the treatment given by the opposite party Nos.1 and 2. The papers from the hospital also prove pus discharge being old case of Chronic O.M. humerous (page 38 to 40 of the paper book) Alarming is the report of the Park Diagnostic Centre (page 41) which reads as “Old fracture of lower third of shaft of humerous with several necrotic bone pieces and no evidence of bony union seen.” This report is dated 21st January 1997. When we compare these reports of various hospitals with the case history of the patient written by opposite party No.2 in his own handwriting, we find that there have been deliberate omissions and the report has been prepared to cover up the deliberate negligence on the part of the opposite party Nos. 1 & 2. We find no doubt in the allegation that Dr. Vineet Agarwal complicated the case of a simple fracture by undertaking a series of operations on the patient who was a case of spiral fracture shaft ( R ) humerous and fingers were found in active movement operation was not advisable. In this case, we find that necessary skills, care and judgement were not exercised by the doctor. Twenty first Edition of Mody`s Medical Jurisprudence & Textology lays down that “To use the necessary skill, care, judgement and attention in the treatment of his patients. He has full liberty to adopt any of the accepted theories of medicine or surgery in which he honestly believes. Also there is considerable scope for him in exercising his judgement and discretion as medical science in not an exact science, he must remember that he owes a duty in tort towards his patients, whether there is any contract with the patient or not.”
10. Therefore the allegation of the opposite party that he was pressurised by the complainant and her relations to undertake surgery goes contrary to the principles of medical ethics. The Hon`ble Supreme Court in the case of Dr. Laxaman Lal Krishan Joshi v. Dr. Godbole and Another, AIR (SIC) 128 has held as under:
” The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.’ Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care of competence judged in the light of the particular circumstances of each case is what the law requires. The doctor, no doubt, has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.”
The doctor opposite party No.2 therefore, deliberately erred in carrying out the surgical intervention when patient`s case was, not of that nature and he cannot be absolved of causing undue suffering and disability on the complainant.
11. A perusal of papers on record goes to show that both the opposite parties charged heavy amounts on various dates from the patient. Even for emergency night visits a sum of Rs.300/- was charged in addition to the fees paid to opposite party No.1, the hospital on various dates (page Nos.64, 66, 69, 70, 72, 76 & 78 of the paper book). This further strengthens the case of the complainant that the opposite party Nos.1 & 2 were more interested in their material benefit rather than in the well being of the patient. We, therefore, find that the opposite parties have been grossly deficient in rendering service in spite of a heavy consideration paid by the complainant. Under the circumstances, the conclusion arrived at by the District Forum is perfectly alright and the opposite parties are gully of deficiency in providing service to the complainant.
12. The learned Counsel for the appellants has argued that the District Forum ought to have accepted the application of the opposite parties, for constituting a medical panel in order to prove expert opinion the learned District Consumer Forum rightly rejected the application as we find that this is not a complicated case where the evidence of experts is found necessary. This is a reasonable case where a simple fracture was made complicated by two surgical interventions which not only did not recover the patient but also deteriorated her condition and the deterioration also resulted in, party disability which is still persisting. The argument of the learned Counsel for the appellants that the Insurance Company should have been impleaded as a necessary party in the case also is of no relevance in this case. The Insurance Company has nothing to do as far as the complainant is concerned.
13. In view of what has been discussed above, we find that the finding arrived at by the learned District Consumer Forum is perfectly alright and does not need any interference. The judgement and order of the learned District Forum has to be upheld and the appeal is liable to be dismissed.
14. The appeal is dismissed with a cost of Rs.3,000/-. The judgement and order of the learned District Consumer Forum are confirmed.
15. Let compliance of the order of the learned District Forum be made within six weeks of the date of this order.
Let copy as per rules be made available to the parties.
KIDNEY STONE CENTRE v. KHEM SINGH @ KHEM CHAND
II (2001) CPJ 436
UNION TERRITORY CONSUMER
DISPUTES REDRESSAL COMMISSION
Consumer Protection Act, 1986 – Section 14(1)(c) – Refund – Medical Service – Advertisement, stones removed without surgery – Kidney Stone Centre failed by remove the stone from complainant prostatic urethra – District Forum order for refund of fee charged along with interest – Hence appeal – Order of Forum upheld appeal.
Mrs. Devinderjit Dhatt, Member – The complainant Shri Khem Singh @ Khem Chand resident of Ropar was suffering from a stone the initial part of the prostatic urethra and was advised to undergo surgery by the doctors of General Hospital, Sector16, Chandigarh. The complainant was not in favour of surgery and hence approached the Kidney Stone Centre, Chandigarh based on 12.2.1996 on the advertisement in the newspaper that the stone are removed without surgery. However, the Kidney Stone Centre failed to remove the stone from his prostatic urethra which resulted filing of a complaint against the centre in District Forum-II, U.T., Chandigarh on 10.7.1998. The District Forum , U.T., Chandigarh in its judgment dated 11.2.2000 ordered that the opposite part should refund a fee of Rs. 10,000/- charged by interest @ 12% w.e.f. 14.2.1996 till payment and costs Rs. 2,500/- for unfair trade practices.
2. Aggrieved against the order passed by the District Forum, the present appeal has been preferred. Briefly the respondent-complainant was diagnosed to have stone in the initial part of prostatic urethra by General Hospital, Sector 16, Chandigarh, where he was advised to undergo surgery. The complainant/appelant was not in favour of undergoing surgery, therefore, on the opinion given by Dr. A.K. Gupta, a private medical practitioner, of Village Maloya, and also baseed on the advertisement in the newspaper that stones are removed without surgery, he went to the clinic of Kidney Stone Centre, Chandigarh on 12.2.1996. He paid fee of Rs. 100/- and was assured that the stone will be removed. by modern technique, i.e. E.S.W.L. - Electric Shock Wave Lithotripsy. It was stated to be a painless process without anaesthesia and sedations. It was also explained to him that the whole process will take 1/2 to 1 hour. He was explained that the cost of the E.S.W.L. will be Rs. 10,000/-. The complainant believed the said assurance and paid Rs. 10,000/- on 14.2.1996 for E.S.W.L. process for about 5 hours on that day by Dr. Rajinder Kumar and Dr. D.P. Singh in the premises of the respondent. But all was in vain. He visited the clinic again on 15.2.1996 and remained there till 5.0 p.m. but the stone remained where it was, i.e. prostatic urethra. The doctors used metallic catheters to push the stone to urinary bladder. It was a painful process that caused bleeding per-penis during the night. The complainant was shifted to a private clinic by the family members. He was told there that he was not physically fit to undergo more shock waves for removal of stone. The respondent-complainant informed the appellant that they have failed to remove the stone through painless process, hence his money be refunded to him. But the appellant refused to do so. On a subsequent day, i.e. on 26.2.1996, X-Ray film showed that the stone was still present in the initial part of the prostatic urethra measuring 15 mm. in size. The respondent-complainant averred that he has been unduly put through mental tension, harassment and suffered acute pain due to insertion of metallic catheter in the urethra to push through the stone in the bladder.
The appellant has admitted introductory facts but informed that the stone had to be pushed back into the bladder for which he has to be administered local anaesthesia/sedations and that would be followed by E.S.W.L. In case of a failure of this treatment, the facilities of open surgery were available in the clinic. Efforts were made to push the stone from the prostatic urethra to the bladder by following E.S.W.L. 1000 shocks. The appellant was scared to undergo further shocks and was not prepared for open surgery. It is relevant to mention that at appellant Centre the diagnosis was as under ” Bladder Stone “
3. The advertisement (Annexure P-8) also undertakes that the surgery is carried out through E.S.W.L. Lithotripsy which is a painless surgery for removing stones. The learned Counsel for the appellant during the course of arguments stated that the order of the Forum be dismissed, because this clinic only removes stones from kidney and not from any other part of the body like prostatic urethra in this case.
4. It is pertinent to refer to the affidavit of Dr. D.P. Singh who had been working at appellant’s clinic during the period of occurrence under reference. He has deposed in para 2 line 5 of his affidavit as under :
” It was not possible to focus this stone for ESWL as assessed by Dr. Rajendra Kumar and the team. So in order to relieve his pain retention urine, the stone was pushed back into bladder with urethral dilators under local anaesthesia and sedation a standard procedure. “
The factum of wrong assessment by hte appellant hospital is corroborated by the abovementioned statement of Dr. D.P.Singh, who is none else but the treating doctor of the appellant.
5. On thorough perusal of the entire record and evidence adduced by both the parties and hearing the learned Counsel of both the sides, we are of the considered view that this appeal lacks merit and the same is dismissed.
KU.LAXMI v. DR. S.K. GOVIL
II (2001) CPJ 325
MADHYA PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL
Consumer Protection Act, 1986 – Section 14(1)(D) – Medical Negligence – Failure of Advise and Communication - Compensation – Hand fractured – Plastered – Union of the two pieces of bones not according to proper alignment – Opposite parties aware of the fact that X-ray essentially required after two to three days – Failed to ensure that instructions given in writing and patients relatives have been made to understand the importance of repeated X-ray – Liable to pay compensation.
Held : In the instant case there may not have been deliberate or willful negligence but there has been a failure of advise for reported X-ray two to three days latter and we have no reason to feel that any childs parent would not follow the advise of repeated X-ray. Of course we feel that the opposite party also had no interest in not advising X-ray and they would not have lost or gained anything by not advising for the same. But we feel that as stated by Dr. Jagdish Singh, the opposite party failed to ensure that the instructions are given in writing and patients relatives have been made to understand the importance of repeated X-ray. (Para 7)
Result : Complaint allowed.
Mr. N.K. Vaidya, Member – This is an original complaint filed by a female child aged 1&1/2 years through her guardian, wherein it has been stated that, having suffered with a fracture in her left hand, she was taken to the Nursing Home of opposite party No. 1 where, first, X-ray of the hand was taken and thereafter her hand was plastered upon and she was discharged from the Nursing Home with directions to come to the Nursing Home of opposite party No. 3 on 30th June, 1996 for re-setting the plaster. That on 30.6.1996 Dr. Bansal and Dr. Shrivastava opposite party Nos. 2 and 3 re-set the plaster and advised the complainants guardian to come for a check up after 21 days.
2. That when the child was taken to the Nursing Home of non-applicant No.2, after 29 days, for cutting the plaster it was found that the union of the two pieces of bones was not according to proper alignment and was bent slightly and the complainant was directed to get X-ray of the joint taken again and for re-setting the joint thereafter which would cost about Rs. 25,000/-. The complainant has alleged that because of negligence by the opposite parties, the left elbow joint of the complainant child Ku. Laxmi was mal-united. The complainant furnished a certificate Ex. C-9 dated 6.2.1999 of one Dr. S.K. Arora, Orthopaedic Surgeon wherein he has stated that the elbow joint is mal-united and that the child is suffering with such a disability which cannot be corrected without an operation and the expenses of this operation will be Rs. 25,000/-.
3. In reply, the opposite parties have stated that when the child was brought to the hospital of non-applicant No. 1, i.e. Dr. S.K. Govil, the family members of the complainant were advised that this fracture was of unstable nature and required fixation by an operation for which the complainant did not agree. On his insistance, after X-ray the fracture was set under anaesthesia and the elbow was plastered. That when second X-ray was taken it was found that the bone was not properly set and the complainant was advised that further setting required use of Image Intensifier Machine which was not available at the Nursing Home of non-applicant No. 1 and was available at the Nursing Home of the non-applicant No.3. The bone was again set under Image Intensifier. Machine and the complainant was fully satisfied after having seen himself the setting of the bone on the machine. Still the family members were advised that since the fracture was of unstable nature, though bone was set, still required great after care and the bone could again be dis-located and, therefore, the family members were advised to come to the Nursing Home again after two to three days for another check up and X-ray. But the complainant came only after 21 days and when the plaster was removed and it was found that the elbow was slightly bent which was on account of the carelessness and negligence of the family members only who did not follow the advise of the non-applicant for a check up after two to three days. The non-applicants thus argued that they are not responsible for any kind of negligence or deficiency on their part and they took necessary precautionary steps and set the bone under Image Intensifier Monitor with full knowledge and satisfaction of the complainant. The opposite party Dr. Bansal has stated in his affidavit dated 17.5.1999 that the resultant deformity is a usual affair in such type of cases as has been stated in medical literature quoted by him as under :
“(As per the Orthopaedic Clinics of North America Page No. 295. The true structure of the deformity however does not become apparent until the stiffness from the injury has subsided and the child has achieved full extension. Thus the gradual appearance of the deformity is simply the result of gradual recognition that the deformity exists. It further quotes on the same page that this deformity is primarily cosmetic and mostly the functional effects are minimal and the major reason patients seek surgical correction is to change the appearance of elbow).”
4. In the book quoted by Dr. Bansal himself in subsequent paragraph it is further mentioned that this concept is important and needs to be emphasized to the patients, pre-operatively especially because the rate of complications after surgery arises from 20 to 33 percent. In the book “Fractures and Joints Injury” by Watson Johns, it is clearly mentioned that X-ray must be repeated after a few days. In Champbells Operative Orthopaedics photocopy filed by complainant on page 679, in para on Fracture of distal humerus in children, it is mentioned that cubitus baruo deformalities following supracondylar fractures, more frequently result from mal-union. On further page No. 680 it is mentioned that “over half of the fractures of the elbow in children were supracondylar”. They are most common in children between the age of five to eight. The book further mentions that “severe late complications may result from minimally displaced fractures. Non-union and mal-unions with impairment in growth, deformity, loss of motion, late traumatic arthritis, and tardy ulnar nerve palsy are frequent complications”.
5. As has been stated by the opposite parties in their report, the opposite parties were aware of this fact that the fracture was of unstable nature though bone was set and, therefore, the family members were advised by them to come to the Nursing Home again after two to three days for check up and X-ray was essentially required after two to three days. Still there is no evidence on record to show that the family members of the opposite parties were so advised. The only remark in the discharge slip record is “review SOS and after three weeks”. This does not mean that the patients relatives were advised for X-ray after two or three days. In the book, Medical Negligence and Compensation written by Dr. Jagdish Singh Vishwa Bhushan, Associate Professor, Second Edition, 1999 on the Chapter on Categories of Negligence. “Failure of advise and communication” has been considered as a negligence and on page 74 it is written as under :
“Failure to give proper instructions : it is obligatory to give warning about risk and it must be ensured that instructions are given in comprehensive terms making sure that the patient understands both the instructions and the importance of strictly adhering to them.”
6. It is further emphasized on page 185 that pathological tests and radiological tests as specified must be advised in writing. In the same Chapter it is reported as under :
“Give instructions to the patient in comprehensible terms, making sure that the patient understands both the instructions and the importance of strictly adhering to them”.
7. In the instant case there may not have been deliberate or willful negligence but there has been a failure of advise for reported X-ray two to three days latter and we have no reason to feel that any childs parent would not follow the advise of repeated X-ray. Of course we feel that the opposite party also had no interest in not advising X-ray and they would not have lost or gained anything by not advising for the same. But we feel that as stated by Dr. Jagdish Singh, the opposite party failed to ensure that the instructions are given in writing and patients relatives have been made to understand the importance of repeated X-ray.
8. There are two alternatives before us either we may direct the opposite party to re-set the bone of the child or to pay some compensation so that the child may get treatment elsewhere at a place where he lives.
9. We, therefore, feel that an award of compensation of Rs. 5,000/- to be paid by the opposite parties would meet the ends of justice and, therefore, we order accordingly. The opposite party shall pay this amount within a period of two months from the date of receipt of the certified copy of the order failing which this amount will carry 15 percent interest till payment.
Shibu v. St. Joseph Hospital & Ors.
1995(3) CPR 177 (Kerala SCDRC)
the complainant, a minor boy about 8 to 9 years old filed a complaint through his father, sustained a fracture of hisleft elbow and was shown to an orthopaedic surgeon attached to Agadi Nursing Home. Reduction and setting of the fracture was done, and left elbow put in plaster. As even after one month there was no relief from elbow pain, he again consulted the orthopaedician who suggested a second setting. The complainant did not agree and consulted another orthopaedician who told him that the diagnosis and treatment given earlier was wrong due to which the child had not been able to get improvement in the pain and suffering and there was deformity in the left elbow.
The complaint was dismissed on the following grounds.
· The evidence of the second orthopaedician who appeared as a witness on behalf of the complainant showed that the diagnosis and the treatment rendered by thefirst orthopaedician was correct.
· It was also stated by the second orthopaedician that the negligence of the patient himself in getting the plaster loosened may be one of the reasons for the deformity. Thus the negligence of the monor boy (contributory negligence) in tampering with the paster and giving movement to the fractured elbow without waiting for the full period for the removal of the paster, was the cause of deformity.