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Orthopaedic
Surgeon


      
          

  • Nadiya
    (Minor) Represented by Guardian v.
    Proprietor Fathima Hospital, Calicut
    & Ors.


    2001 (1) CPR 559

     

    Consumer Protection Act, 1986 -
    Section 2 and 14 – Medical negligence
    – Burden of proof is on complainant -
    Complainant got herself operated by
    opposite party No.2 in the hospital of
    opposite party No.1 for improving her
    height – Ring fixator was fixed on the
    legs – Left leg remained shorter `by
    1-1/2 inch – Defence 
    pleas that said condition was
    because of failure of complainant to
    adhere to instructions and deformity
    occurred due to complication
    adoloscent idiopathic scolosis of the
    dorso lumbar spine’ – Defence
    pleaded 
    was not supported by any
    material – Burden on complainant to
    establish negligence has to be judged
    on facts of each case – Opposite party
    did not file even his affidavit -
    Complainant`s case that there was
    negligence and deficiency of service
    has to be accepted – Complainant had
    spent an amount of Rs.1,94,122/- in
    the opposite party hospital and
    Rs.2,00,000/-in other hospital which
    she consulted subsequently – She was
    17 years old girl and must have
    undergone physical pain and agony as
    becoming afflicted with deformity -
    Compensation of 5 lakhs awarded to be
    paid in three months failing amount to
    carry interest at 14%.         
    (Paras 6 to 12)

     

    Result: 
    Complaint allowed.

     

    Counsel for the parties:

     

    For the Complainant : Mr.K.G.Pavithran,
    Advocate.

     

    For the Opposite Parties : Mr.M.Ramesh
    Chandran, Mr.K.Bhaskaran Nair,
    Advocates.

     

    ORDER

      

    L.Manoharan,
    President

    – Complainant, a minor represented
    by her father seeks for a direction to
    pay compensation on the allegation of
    negligence committed in the surgery
    conducted by the second opposite
    party, doctor who was then working in
    the first opposite party hospital.

     

    2. The
    allegations in brief is that the
    complainant aged 17 years an 
    a student of VIII standard had
    a height of 136 cms. Which for her age
    since was felt to be less, attracted
    by the advertisement Exbt P19
    approached the first opposite party
    hospital in July 1996 where the second
    opposite party assured her increase in
    the height by 10 cms in six months by
    surgery and the charge for the same
    was fixed at Rs.32,000/-. 
    In view of the same, she got
    herself admitted on 24-7-1996 in the
    first opposite party hospital and her
    right leg below the knee was operated
    on 25-7-1996 and the left leg below
    the knee was operated on 1-8-1996.
    A Ring fixator was fixed on the
    legs; the one on the right leg was
    adjusted from 2-8-1996, and one on the
    other was adjusted from 10-8-1996, the
    same had to be adjusted every six
    hours.
    The staff of the hospitals were
    not trained for the said purpose and
    the father of the complainant was
    instructed to attend, the same as per
    the instructions of the doctor, and he
    was attending the same. 
    The fact that the nurse and
    staff were not equipped to attend the
    same itself would amount to
    negligence.
    On 16-9-1996 she was discharged
    with the instruction that every 15
    days X-Ray has to be taken and has to
    be consulted. 
    At the time of discharge the
    length of the two legs were not the
    same and
    hence she could not walk.
    By September 1996, pain
    increased and when she met the second
    opposite party she informed him as to
    the same but he consoled her stating
    that the Ring fixator adjustment must
    be continued. 
    By the same the feet as well as
    the leg below the knees got curved.
    Later when she met him in the
    same month he instructed her to stop
    the adjustment of the Ring fixator on
    the left leg and to continue with
    respect to the right leg.
    Afterwards she was required to
    stop adjustment of the Ring fixator
    for the right leg also and in April
    1997 the Ring fixators were removed 
    and plaster was applied. 
    But the left leg was short by
    1-1/2 inches, the second opposite
    party said that the same was due to
    the curve in the lower part of the
    leg. As
    per the instruction of the second
    opposite party physiotheraphy was
    being continued. 
    On 17-9-1997 operation was
    conducted on the left foot and on
    1-11-1997 skin grafting was
    also conducted.
    Though the difference in the
    length of the leg was brought to the
    notice of the second opposite party he
    got wild and instructed to continue of
    the physiotheraphy. 
    A physiotheraphist was engaged
    to attend the physiotheraphy at her
    home and the same was intimated to the
    second opposite party. 
    Since, the length of the left
    leg is shorter, she leans on the left
    there was also deformity for the foot.
    After the operation on
    25-7-1996 she was bed ridden till
    March 1998. 
    A home nurse had to be
    appointed.
    Every 15 days X-ray had to be
    taken and the second opposite party
    was being consulted.
    The deformity and the
    disability of the complainant is on
    account of the negligence in
    conducting the aforesaid surgery.
    She had to incur an expense of
    Rs.2,43,000/- 
    for the operation and hospital
    expenses.
    Apart from the same, she has to
    incur other expenses for future
    treatment also, therefore the opposite
    parties are liable to compensate the
    complainant for the said injury caused
    to her due to their negligence.

     

    3. In
    the version by the first opposite
    party it is contended, the hospital is
    a reputed one having several qualified
    doctors in different specialities and
    also has qualified staff.
    The second opposite party is a
    qualified doctor and the deficiency in
    service alleged by the complainant is
    not true or correct, but admits 
    that the complainant was
    treated in the said hospital, the
    treatment given to her is borne out by
    the hospital records and she was given
    the best possible treatment.
    She has no cause of action
    against this opposite party.
    The nurses attached to the
    hospital are well qualified and well
    trained.
    The allegations of negligence
    is denied.

     

    4. In
    the version by the second opposite
    party he contended that he has taken a
    professional indemnity policy for
    doctors and medical practitioners from
    the New India Assurance Company
    Limited having their Head Office at
    M.G.Road, Bombay.
    The policy No. is 46721200
    01833.
    Therefore the said Insurance
    Company also is a necessary party to
    the proceedings.
    The fact that the complainant
    approached the hospital for surgery
    for increasing her height is not
    disputed.
    She has the
    adoloscentidiopathic scolosis of the
    dorso lumber spine.
    The cause of her present
    position is the said condition, the
    same could not be noticed initially
    and the said condition is not caused
    by surgery.
    The present condition
    of the complainant cannot be
    attributed to the surgery performed by
    him, the father and daughter were
    informed as to the complications
    inherent in the said operation.
    They were also informed as to
    the nature of co-operation required
    from the patient for the success of
    the surgery.
    The cortiocotomy surgery with
    external fixator on the complainant`s
    right leg was done on 25-7-1996.
    The method of adjusting Ring
    fixator was explained, the staffs are
    qualified to adjust the Ring fixator.
    There are trained nurses in the
    hospital.
    After due surgery the
    complainant was discharged on
    16-8-1996 with an advice to take X-ray
    and report back once in 15 days.
    In September, 1996 it was found
    that the complainant was not adhering
    to the instruction as to the
    stretching exercise, during that
    period though the bone was lengthening
    the muscles did not adequately stretch
    on account of the failure on the part
    of the complainant to attend the
    exercise as instructed.
    The X-ray showed, there was
    lenthening of both bones of the right
    leg. 
    But there was contractures, of
    the calf muscles, that was only due to
    inadequate stretching of the right
    calf muscles while bones continued to
    be lengthening,
    She and her father were told to
    do vigorous stretching exercise of the
    calf muscles.
    She was told as to the cause
    for her deformities of the feet, and
    if further lengthening of both the
    legs was not stopped, she would need
    corrective surgery.
    But she was adamant and wanted
    the lengthening process to continue
    and was prepared for the soft tissue
    correction surgery later.
    Later it was decided to further
    lengthening of the left leg to achieve
    equality in the length of both legs.
    The length of both the legs of
    the complainant was found equal on
    clinical examination as well as
    radiologically examination.
    It is incorrect to say that her
    left leg was shorter by 1-1/2 inch by
    the end of November 1997 she could
    walk. On
    11-5-1998, the opposite party
    explained to the complainant, that the
    length of her both legs is equal, even
    then she was not convinced.
    On a detailed examination on
    8-1-1998, it was found that she was
    developing a deformity of the
    `spine’ called “ Adoloscent
    Idopathic Scolosis “ of Dorso Lumber
    Spine which caused lifting up of the
    left side of the pelvis and alongwith
    it the whole left lower leg.
    Therefore, while standing, the
    level of the pelvis, instead of being
    horizontal became oblique with the
    left lower limb going up which
    produced an apparent and not true
    shortening of the left lower limb.
    He denied the allegation, there
    was deficiency of service.
    He also disputed the quantum of
    compensation claimed. 
    He wanted dismissal of the
    complaint.

      

    5.
    Complainant filed affidavit and
    offered for cross examination, she was
    examined as PWI, Complainant produced
    Exbts P1 to P20. 
    On 
    behalf of the opposite parties
    no affidavit was filed and none was
    examined.
    The points that would arise for
    consideration are:

     

    1. Is
    the complaint maintainable? 
    And whether the negligence and
    deficiency of service alleged is true?

    2. What,
    if any, is the compensation of which
    the complainant is entitled to?

    3. Relief
    and costs?

     

    Point No.1

     

    6. It
    is settled position that in a
    complaint which alleges negligence on
    the part of a Medical Practitioner the
    burden of proof is on the complainant.
    The fact that the complainant
    got herself admitted on 24-7-1996 for
    improving her height is not in
    dispute, surgery was conducted by the
    second opposite party on 25-7-1996 on
    the lower part of 
    the left leg and conducted
    surgery on 1-8-1996 on the lower part
    of the right leg also is not in
    dispute.
    Ring fixator was fixed on the
    legs, was adjusted from 10—1996
    every six hours is also not in
    dispute.
    Whereas the complainant would
    allege that at her discharge on
    16-8-1996 with the instruction that
    X-ray should be taken and must report
    back after 15 days, both legs were not
    of the same length, the second
    opposite party would not admit the
    same. The
    affidavit and the evidence of PWI
    would show that she was required to
    continue to the adjustment of the ring
    fixator, later at stages she was asked
    to stop the adjustment. 
    What she would swear is,
    because of the defect in the operation
    and treatment, her left leg remained
    shorter by 1-1/2 inch that the right
    leg and hence she leans on the left.
    But the second opposite party
    would contend that the said condition
    was because of the failure of the
    complainant to adhere to the
    instructions, and also would maintain
    that the same was due to the
    complication. `Adoloscent Idiopathic
    Scolosis of the Dorso Lumbar Spine.

     

    7. Now
    the question for consideration is
    whether the materials placed by the
    complainant alongwith her evidence
    would discharge her burden as to the
    alleged negligence.
    The probative value of the
    evidence tendered by the complainant
    by affidavit, as PWI and the documents
    produced, Exbt P1 to Exbt P20 has to
    be considered in the context of the
    attending circumstances and the nature
    of the contentions raised. 
    One important aspect to be kept
    in view is, complainant was 17 years
    at the time when she got admitted in
    first opposite party hospital. 
    Her height was 136 cms.
    Admittedly she consulted not
    for treatment of any illness or
    ailment. According to the complainant
    she did not suffer from any ailment
    and she approached the opposite
    parties for improving her height
    attracted by Exbt P19 advertisement. 
    Exbt P19 advertisement in the
    newspaper declares that a dwarf could
    become Amitabh Bachan of tomorrow.
    `It states that by the
    Illizorove method the height can be
    increased by one inch with in a period
    of 25 days and it mentions the second
    opposite party as the surgeon.
    This advertisement is not
    denied.
    The second opposite party would
    plead ignorance of such an
    advertisement; the first opposite
    party does not deny it. 
    What is important is, the
    occasion for the complainant to
    solicit the services of the opposite
    parties was the said advertisement.
    She underwent the said cosmetic
    surgery. 
    One of the aspects to be seen
    in this connection is whether there
    was informed consent for the said
    operation.
    The second aspect would be
    whether there was actual negligence in
    conducting the surgery resulting in
    injury to the complainant.
    As regards the question whether
    there was informed consent, the very
    allegation in para 3 of the complaint
    would support a conclusion that the
    second opposite party informed the
    complainant and her father as to the
    benefits of such surgery and that the
    achievements. PWI admitted in the cross
    examination that on 24-7-1998 she
    signed a paper giving consent to the
    operation.
    When the said testimony of the
    complainant is understood in the
    context of para 3 of the complaint it
    is probable that necessary consent was
    given.

       

    8. Then the question for
    consideration whether there was
    negligence in conducting the said
    operation.
    In appreciating the case of the
    complainant in this regard certain
    factors have to be kept in view;
    particularly her condition when she
    consulted the opposite parties and her
    condition after the surgery.
    As she was a healthy girl of 17
    having no complication and there being
    no dispute that she came walking and
    it was only a cosmetic surgery just to
    improve her height, at that stage
    there is no case that she had any
    ailment.
    Exbt P1 discharge summary from
    24-7-1996 to 16-8-1996 does not
    mention any particular ailment.
    Thus, from the evidence the
    complainant was an young girl of 17,
    healthy had no complaint when she
    approached the first opposite party
    surgeon except that she felt her
    height has to be improved.
    She underwent cosmetic surgery
    with Rings fixator.

     

    9. Having
    regard to the said details it would be
    necessary to see her present condition
    in the matter of judging as to whether
    she has discharged the burden of
    proof.
    As has noticed, she was healthy
    and the surgery which she underwent
    was not for any complaint or on
    account of her suffering from any
    illness or malfunctioning of system.
    But at trial she required to be
    helped to reach the witness box and
    she had to be permitted to sit while
    giving evidence.
    In the affidavit filed by the
    complainant it is averred that for
    correcting the deformity after the
    surgery she had to consult
    Dr.Gopalkrishnan of Appolo Hospital Madras in
    December 1998 and she was admitted 
    on 12-2-1998 in Appolo Hospital
    and had to undergo surgery on
    3-12-1998.
    The said fact is averred in
    para 36 of the affidavit. Exbt P9 is the discharge
    summary of the Appolo Hospital which
    is proved by the affidavit of the
    complainant, the diagnosis mentioned
    therein, left tibial varus, intorsion
    deformity and left foot equino varus
    deformity.
    On the date of discharge her
    condition is stated to be “NWS left
    side with walker’.
    Exbt P9 shows that she has to
    have a walker on the left side, in the
    affidavit also she says, the deformity
    of the left leg reduced and movement
    was restored.
    Though she was cross examined
    by first and second opposite parties
    there is no effective cross
    examination by first and second
    opposite parties there is no effective
    cross examination on the aforesaid
    aspects, averred in the affidavit.
    Thus, what is to be noted is a
    healthy girl after the surgery needs
    the aid of a walker as she had to lean
    on the left.

     

    10. Another
    aspect to be noted in this connection
    is, the nature of the defence taken by
    the opposite party particularly the
    second opposite party particularly the
    second opposite party.
    As has noted where as the
    complainant would maintain that she
    followed the instructions and
    performed the exercise as was
    instructed and ultimatley
    physiotherapist too was engaged till
    said deformity on the performance of
    the surgery persists.
    One defence of the opposite
    party is, she did not comply with the
    instructions; at the same time he
    seeks to maintain that it is due to adoloscent idiopathic scolosis of
    the dorso lumber spine. Exbt P9 does not mention such a
    complication in Exbt p# the outpatient
    record has an entry on 8-1-1998 DL
    Spine scross of lumber region to the
    left. 
    Now it is necessary to note,
    whereas the complainant maintained her
    left leg is short by 1-1/2 
    inches, the second opposite
    party would deny the same and seeks to
    maintain that both the legs have same
    length.
    Incidently, Exbt P8 photograph
    with the negative proved by affidavit
    shows the features of the leg, it
    shows the deformity.
    In paragraph 15 of the second
    opposite party`s version it is
    contended, on 11-5-1998, the opposite
    party showed the complainant that on
    Rongerograms both legs were of equal
    length.
    But she was not convinced, the
    second opposite party contends on
    detailed examination, the opposite
    party found on 8-1-1998 that she was
    developing a deformity of the spine
    called `Adoloscent Idopathic Scolosis’
    of Dorso Lumber Spine which in
    ordinary words is a curvature of the
    spine caused lifting up of the left
    side of the pelvis and alongwith it
    the whole left lower leg. 
    So, while standing, the level
    of Pelvis, instead of being normal
    horizontal became oblique with the
    left lower limb also went up.
    This produced, an apparent and
    not true shortening of the left lower
    limb. This
    pleading would go against his case
    that the deformity came into existence
    because of the negligence of the
    complainant in not adhering to the
    instructions.
    The effect of the same is also
    described in Para 3 of the version he
    says as regards the said condition
    “Cause of this is not known ad
    occurs between 10 years and skeletial
    maturity.”
    If that is the position, as has
    noticed 
    his case that the complication
    arose because of failure to adhere to
    the instructions cannot be supported.
    Thus in the very case of the
    opposite party there is inconsistency.
    It is significant, the second opposite
    party admits when the complainant
    stands the left limb would not touch
    the ground because it would be lifted.
    The cause he says is, a
    complication which as noticed to not
    disclosed till 8-1-1998.
    The complainant as PWI denied
    the said suggestion saying that she
    has no such disease or complication.

     

    11. The
    burden on a complainant to establish
    negligence has to be judged on the
    facts of each case. 
    In this case the complainant
    filed an affidavit detailing her case
    as well as offered for cross
    examinations, that she had to go to
    Appolo hospital is not challenged in
    the cross examination.
    None of the opposite parties
    has tendered any evidence either oral
    or documentary except producing the
    case file. 
    It is true that the complainant
    moved I.A. 779/2000 for the issue of a
    commission for examining
    Dr.Gopalkrishnan, the said application
    was allowed, but the complainant filed
    another application later saying that
    for the reasons averred in the
    affidavit the order appointing the
    commissioner has to be recalled.
    The reason averred in the
    affidavit is when the doctor was
    requested to give evidence he said due
    to certain subsequent events he is not
    in a position to give evidence in a
    case against a doctor.
    Of course the averment by the
    petitioner by itself need not render
    the examination impossible as in such
    circumstance he could have taken steps
    for the issue of summons to the doctor
    for his examination before this
    Commission as a witness.
    The question is whether the
    failure to examine the said doctor, in
    the facts and circumstances of this
    case would adversely affect the case
    of the complainant has to be judged 
    in the context of the nature of
    the case pleaded by the opposite
    party, the affidavit and evidence of
    PWI along with the materials already
    produced.
    As has already noted, the
    condition of the complainant when she
    consulted the 2nd opposite
    party, she was healthy without any
    complainant, her position after the
    surgery at discharge from first
    opposite party hospital alongwith the
    said evidence would show the burden is
    shifted to the opposite parties to
    substantiate their case that the
    lifting of the left limb was due to a
    complication which developed later.
    At least the second opposite
    party could have filed an affidavit
    and offered for cross examination.
    No reason whatever is assigned
    as to why any one of them did not file
    affidavit. 
    In such circumstances, with due
    regard to the nature of the case
    pleaded by the second opposite party,
    and the evidence tendered by the
    complainant, unless the opposite
    parties substantiates, that deformity
    is the result of the condition pleaded
    by them, the case of the complainant
    in this regard has to be accepted. 
    In this connection, it has to
    be noted, though it was contended that
    when the second opposite party wanted
    to stop the process at a particular
    stage the complainant insisted to
    continue the process for getting the
    desired height. This is not even put
    to PWI when she was examined.
    These are matters what could
    have been proved by filing affidavit
    and offering for cross examination,
    that is not done. Since the exhibits
    are proved by affidavit and there
    being no challenge as regard the same
    as complainant is entitled to rely on
    them. Exbt
    P1 series discharge summaries, P2
    series P4 series, P5 series bills and
    Exbt P6 series prescriptions alongwith
    Exbt P3 series.
    Case records of the complainant
    1st opposite party hospital
    support and corroborate the evidence
    of PWI and her affidavit as to her
    treatment and details of 1st
    opposite party hospital. 
    Exbt9 discharge summary
    alongwith P10 series, P11 series, P12
    series, P13 series and P16 series
    bills of the Appolo Hospital prove
    that she had to undergo surgery and
    treatment there. 
    When such is the situation it
    has to be found that the case pleaded
    by the opposite party that because of Adoloscent idiopathic scolosis of
    the dorso lumbar spine” the present
    deformity developed is not
    substantiated.
    Then the case of the
    complainant that there is negligence
    and deficiency of service should be
    accepted.
    This point therefore found in
    favour of the complainant.

     

    Points No. 2 and 3

     

    The
    complainant has produced Exbts P2
    series P4 series and P5 series bills
    evidencing payment to the first
    opposite party hospital. These bills
    take in an amount of Rs.1,94,122/-
    This is bare expenses in the first
    opposite party hospital towards
    medicine etc. The claim in the
    complaint is towards medical expenses
    Rs.2,43,000/- and for future treatment
    mental agony etc. the further claim is
    Rs.15 lakhs. Thus the total claim is
    Rs.17,43,000/- The bills and medical
    expense and the other charges of the
    hospital alone cannot be the
    expenditure, there could be other
    incidental expenses also. In measuring
    the compensation the actual expenses
    which she had to meet the subsequent
    charges at the Appollo hospital have
    to be kept in view. Apart from the
    same, naturally she should have
    undergone physical pain as well agony;
    an young girl becoming afflicted with
    such deformity will certainly be
    agonised and desperate. The
    expenditure at the Appollo hospital is
    sought to be established by Exbt P10
    series P11 series P12 series P13
    series bills which come to more than
    Rs.2,00,000/- (Rs.Two Lakhs). Apart
    from the same, she had to meet other
    expenditure also as seen from by Exbt
    P6 series P14 series P17 series etc.
    Having regard to the aforesaid
    expenditure towards the hospital
    expenses, we consider that towards
    mental agony and medical expenses the
    complainant is eligible for a total
    compensation of Rs.5,00,000/- (Rs.Five
    Lakhs).

       

    12. Now the liability to pay
    the said amount has also to be gone
    into particularly in the context of
    the submission by the learned counsel
    for the first opposite party that if
    at all there is any liability that
    should be only for the second opposite
    party, doctor. This is a tortious
    liability; admittedly, at the relevant
    period the second opposite party,
    doctor was employed in the first
    opposite party hospital. Therefore,
    the first opposite party is
    vicariously liable for the tortious
    acts of his employee during the course
    of his employment. But one important
    aspect to be noted is, the second
    opposite party in para 2 of the
    version stated that he has taken a
    professional indemnity policy for
    doctors and medical practitioner
    during the relevant period from the
    New India Assurance Company Limited
    and that the said party has to be
    impleaded. Accordingly, the
    complainant moved a petition for
    impleading the said party. New India
    Assurance Company Limited and was
    impleaded as the 3rd opposite party as
    per order on I.A. 983/99. The 3rd
    opposite party though was served
    remained absent and was set as parte.
    Therefore so far as the liability of
    the second opposite party has to be
    indemnify to the extent of the insured
    amount. The second opposite party does
    not state for what amount he took the
    policy or the extent of the insurance
    cover. The 3rd opposite party is the
    ex-parte, the 3rd opposite party can
    not be absolved from the liability to
    the extent of the policy amount, the
    3rd opposite party will be liable to
    indemnify the second opposite party to
    the extent of the amount covered by
    the policy. In the circumstances the
    complainant shall be entitled to her
    costs which we fix at Rs.2,000/-
    Points found accordingly.

      

    13. In the result opposite
    parties 1 and 2 are directed to pay
    Rs.5,00,000/- (Rs.Five Lakhs) to the
    complainant the 3rd opposite party is
    liable to indemnify the second
    opposite party to the extent of the
    amount covered by the policy. The said
    amount shall be paid as above within
    three months of the receipt of the
    copy of this order failing which the
    said amount will bear interest at 14%
    from the date of the expiry of the
    said three months till payment or
    recovery. The complainant shall be
    entitled to her costs Rs.2,000/-.

    Complaint allowed.

      

  • NADIYA
    v. PROPRIETOR, FATIMA HOSPITAL


    II (2001) CPJ 93

       

    Consumer Protection Act, 1986 -
    Sections 2 (1)(g), 14(1) (d) – Medical
    Negligence – Deficiency in Service -
    Negligence committed in Surgery -
    Compensation – Complaint approached
    opposite party`s Hospital for surgery
    for increasing the height -
    Cortiocotomy surgery with external
    fixator done – Left leg remained
    shorter by 1 ½ inch than the right
    leg – A healthy girl after the surgery
    needs the aid of walker as she had to
    lean on the left – Burden shifted to
    opposite parties to substantiate the
    case that the lifting of the left limb
    due to a complication which developed
    later – Contention, complication arose
    because of failure to adhere to
    instructions cannot be supported -
    Case pleaded by opposite parties for
    present deformity not substantiated
    negligence / deficiency in service
    established – Complainant entitled to
    get compensation.  (Paras 7, 8
    & 10) 

      

    (ii) Insurance – Professional
    indemnity policy taken for doctors and
    medical practitioner – Insurance
    Company liable to indemnify the
    opposite party to the extent of
    insured amount. (Para 12)

       

    Result : Complaint allowed

         

    Complainant, a minor represented by
    her father seeks for a direction to
    pay compensation on the allegation of
    negligence committed in the surgery
    conducted by the second opposite
    party, doctor who was then working in
    the first opposite party hospital.

        

    2. The allegation in brief are
    that the complainant aged 15 years and
    a student of VIII Standard had a
    height of 136 cm. which for her age
    since was felt to be less, attracted
    by the advertisement, Exbt P19
    approached the first opposite party
    hospital in July 1996 where the second
    opposite party assured her increase in
    the height by 10 cms. in six months by
    surgery and the charge for the same
    was fixed at Rs.32,000/-. In view of
    the same, she got herself admitted on
    24.7.1998, in the first opposite party
    hospital and her right leg before the
    knee was operated on 1.8.1996. Ring
    fixator was fixed on the legs; the one
    on the right leg was adjusted from
    2.8.1996 and the one on the other was
    adjusted from 10.8.1996, the same had
    to be adjusted every six hours. The
    staff of the hospital were not trained
    for the said purpose and the father of
    the complainant was instructed to
    attend the same as per the instruction
    of the doctor, and he was attending
    the same. The fact that the nurse and
    staff were not equipped to attend the
    same; itself would amount to
    negligence. On 16.9.1996, she was
    discharged with instruction that every
    15 days X-ray has to be taken and has
    to be consulted. At the time of
    discharge the length of the two legs
    were not the same and hence she could
    not walk. By September 1996, pain
    increased and when she met the second
    opposite party she informed him as to
    the same but he consoled her stating
    that the ring fixator adjustment must
    be continued. By the same the feet as
    well as the leg below the knee got
    curved. Later when she met him in the
    same month he instructed her to stop
    the adjustment of the Ring fixator on
    the left leg and to continue with
    respect to the right leg. Afterwards
    she was required to stop adjustment of
    the Ring fixator for the right leg
    also and in April, 1997 the Ring
    fixator for the right leg also and in
    April, 1997 the Ring fixators were
    removed and plaster was applied. But
    the left leg was short by 1 ½ inches,
    the second opposite party said that
    the same was due to the curve in the
    lower part of the leg. As per the
    instruction of the second opposite
    party physiotherapy was being
    continued. On 17.9.1997, operation was
    conducted on the left foot and on
    1.11.1997 skin grating was also
    conducted. Though the difference in
    the length of the leg was brought to
    the notice of the second opposite
    party he got wild and instructed to
    continue on the physiotherapy. A
    physiotheraphist was engaged to attend
    the physiotherapy at her home, and the
    same was intimated to the second
    opposite party. Since, the length of
    he left leg is shorter, she leans on
    the left; there was also deformity for
    the foot. After the operation on
    25.7.1996 she was bed-ridden till
    March, 1998. A home nurse had to be
    appointed. Every 15 days X-ray had to
    be taken and the second opposite party
    was being consulted. The deformity and
    the disability of the complainant is
    on account of the negligence in
    conducting the aforesaid surgery. She
    had to incur an expense of
    Rs.2,43,000/- for the operation and
    hospital expenses. Apart from the
    same, she had to incur other expenses
    for future treatment also, therefore,
    the opposite parties are liable to
    compensate the complainant for the
    said injury caused to her due to their
    negligence.

        

    3. In the version by the first
    opposite party it is contended, the
    hospital is a reputed one having
    several qualified doctors in different
    specialities and also has qualified
    staff. The second opposite party is a
    qualified doctor and the deficiency in
    service alleged by the complainant is
    not true or correct; but admits that
    the complainant was treated in the
    said hospital, the treatment given to
    her is borne out by the hospital
    records and she was given the best
    possible treatment. She has no cause
    of action against the opposite party.
    The nurses attached to the hospital
    are well-qualified and well-trained.
    The allegations of negligence is
    denied.

        

    4. In the version by the second
    opposite party he contended that he
    has taken a professional indemnity
    policy for doctors and medical
    practitioners from the New India
    Assurance Company Limited having their
    Head Office at M.G.Road, Bombay. The
    Policy No. is 46721200 01833.
    Therefore, the said Insurance Company
    also is a necessary party to the
    proceedings. The fact that the
    complainant approached the hospital
    for surgery for increasing her height
    is not disputed. She has the `adoloscentidiopathic
    scolosis’ of the of the dorso lumber
    spine. The cause of her present
    position is the said condition, the
    same could not be noticed initially
    and the said condition is not caused
    by surgery. The present condition of
    the complainant cannot be attributed
    to the surgery performed by him, the
    father the daughter were informed as
    to the complications inherent in the
    said operation. They were also
    informed as to the nature of
    co-operation required from the patient
    for the success of the surgery. The
    cortiocotomy surgery with external
    fixator on the complainant`s right leg
    was done on 25.7.1996. The method of
    adjusting Ring fixator has explained,
    the staff are qualified to adjust the
    Ring fixator. There are trained nurses
    in the hospital. After due surgery the
    complainant was discharged on
    16.8.1996 with an advice to take X-ray
    and report back once in 15 days. In
    September, 1996 it was found that the
    complainant was not adhering to the
    instruction as to the stretching
    exercise; during that period though
    the bone was lengthening the muscles
    did not adequately stretch on account
    of the failure on the part of the
    complainant to attend the exercise as
    instructed. The X-ray showed, there
    was lengthening of both bones of the
    right leg. But there was contractures
    of the calf muscles, that was only due
    to inadequate stretching of the right
    calf muscles while bones continued to
    be lengthening. She and her father
    were told to do vigorous stretching
    exercise of the calf muscles. She was
    told as to the cause for her
    deformities of the feet, and if
    further lengthening of both the legs
    was not stopped, she would need
    corrective surgery. But she was
    adamant and wanting the lengthening
    process to continue and was prepared
    for the soft tissue correction surgery
    later. Later, it was decided to
    further lengthening of the left leg to
    achieve equality in the length of both
    legs. The length of both the legs of
    the complainant was found equal on
    clinical examination as well as
    radiological examination. It is
    incorrect to say that her left leg was
    shorter by 1 ½ ” inch, by the
    end of November, 1997 she could walk.
    On 11.5.1998, the opposite party
    explained to the complainant, that the
    length of her both legs is equal, even
    then she was not convinced. On a
    detailed examination on 8.1.1998 it
    was found that she was developing a
    deformity of the `spine’ called “Adoloscent
    Idopathic Scolosis” of Dorso
    Lumber Spine which caused lifting up
    of the left side of the pelvis and
    along with it the whole left lower
    leg. Therefore, while standing, the
    level of the pelvis, instead of being
    horizontal became oblique with the
    left lower limb going up which
    produced an apparent and not true
    shortening of the left lower limb. He
    denied the allegation, there was
    deficiency of service. He also
    disputed the quantum of compensation
    claimed. He wanted dismissal of the
    complaint.

        

    5. Complainant filed affidavit
    and offered for cross examination, she
    was examined as P.W.

      

    1. Complainant produced Exbts. P1 to
    P20. On behalf of the opposite parties
    no affidavit was filed and none was
    examined. The points that would arise
    for considerations are :

       

    (1) Is the complaint maintainable? And
    whether the negligence and deficiency
    of service alleged is true ?

     

    (2) What, if any, is the compensation
    to which the complainant is entitled
    to ?

     

    (3) Relief and costs.

       

    Point No.1 :

       

    It is settled position that in a
    complaint which alleges negligence on
    the part of a Medical Practitioner the
    burden of proof is on the complainant.
    The fact that the complainant got
    herself admitted in the first opposite
    party hospital on 24.7.1996 for
    improving her height is not in
    dispute, surgery was conducted by the
    second opposite party on 25.7.1996 on
    the lower part of the left leg and
    conducted surgery on 1.8.1996 on the
    lower part of right leg also is not in
    dispute. Ring fixator was fixed on the
    legs, the one on the left leg was
    adjusted from 2.8.1996 and the one on
    the right was adjusted from 10.8.1996
    every six hour is also not in dispute.
    Whereas the complainant would allege
    that at her discharge on 16.8.1996
    with the instruction that X-ray should
    be taken and must report back after 15
    days, both legs were not of the same
    length, the second opposite party
    would not admit the same. The
    affidavit and the evidence of P.W.1
    would show that she was required to
    continue to the adjustment of the Ring
    fixator, later at stages she was asked
    to stop the adjustment. What she would
    swear is, because of the failure of
    the complainant to adhere to the
    instructions and also would maintain
    that the same was due to the
    complication`Adoloscent idiopathic
    scolosis of the dorso lumbar spine.’

      

    6. Now, the question for
    consideration is whether the materials
    placed by the complainant along with
    her evidence would discharge her
    burden as to the alleged negligence.
    The probative value of the evidence
    tendered by the complainant by
    affidavit, as P.W. 1 and the documents
    produced, Exbt. P1 to Exbt. P20 has to
    be considered in the context of the
    attending circumstances and the nature
    of the contentions raised. One
    important aspect to be kept in view
    is, complainant was 17 years at the
    time when she got admitted in first
    opposite party hospital. Her height
    was 136 cms. Admittedly she consulted
    not for treatment of any illness or
    ailment. According to the complainant
    she did not suffer from any ailment
    and she approached the opposite
    parties for improving her height
    attracted by Exbt.19 advertisement.
    Exbt.19 advertisement in the newspaper
    declares that a `dwarf could became
    Amitab Bachan of tomorrow’. It states
    that by the Illizorove method the
    height can be increased by one inch
    within a period of 25 days and it
    mentions the second opposite party as
    the surgeon. This advertisement is not
    denied. The second opposite party
    would plead ignorance of such an
    advertisement; the first opposite
    party does not deny it. What is
    important is, the occasion for the
    complainant to solicit the service of
    the opposite parties was the said
    advertisement. She underwent the said
    cosmetic surgery. One of the aspects
    to be seen in this connection is
    whether there was informed consent for
    the said operation. The second aspect
    would be whether there was actual
    negligence in conducting the surgery
    resulting injury to the complainant.
    As regards the question whether there
    was informed consent, the very
    allegation in para 3 of the complaint
    would support a conclusion that the
    second opposite party informed the
    complainant and her father as to the
    benefits of such surgery and that the
    achievements. P.W.1 admitted in the
    cross-examination that on 24.7.1998
    she signed a paper giving consent to
    the operation. When the said testimony
    of the complainant is understood in
    the context of para 3 of the complaint
    it is probable that necessary consent
    was given.



    7. Then the question for
    consideration whether there was
    negligence in conducting the said
    operation. In appreciating the case of
    the complainant in this regard certain
    factors have to be kept in view;
    particularly her condition when she
    consulted the opposite parties and her
    condition after the surgery. As she
    was a healthy girl of 17 having no
    complication and there being no
    dispute that she came walking and it
    was only a cosmetic surgery just to
    improve her height, at that stage
    there is no case that she had any
    ailment. Exbt. P1 discharge summary
    from 24.7.1996 to 16.8.1996 does not
    mention any particular ailment. Thus,
    from the evidence the complainant was
    a young girl of 17, healthy had no
    complaint when she approached the
    first opposite party hospital and
    consulted the second opposite party
    surgery except that she felt that her
    height has to be improved. She
    underwent cosmetic surgery with Rings
    fixator.



    8. Having regard to the said
    details it would be necessary to see
    her present condition in the matter of
    judging as to whether she has
    discharged the burden of proof. As has
    noticed, she was healthy and the
    surgery which she underwent was not
    for any complaint or on account of her
    suffering from any illness or
    malfunctioning of the system. But at
    trial she required to be helped to
    reach the witness box and she had to
    be permitted to sit while giving
    evidence. In the affidavit filed by
    the complainant it is averred that for
    correcting the deformity after the
    surgery she had to consult
    Dr.Gopalkrishnan of Apollo Hospital,
    Madras in December, 1998 and she was
    admitted on 2.12.1998 in Apollo
    Hospital and had to undergo surgery on
    3.12.1998. The said fact is averred in
    para 36 of the affidavit, the reason
    for approaching the Appolo Hospital is
    also averred in para 35 of the
    affidavit. Exbt. P9 is the discharge
    summary of the Appolo Hospital which
    is proved by the affidavit of the
    complainant, the diagnosis mentioned
    therein, left tibial varus, intorsion
    deformity and left foot equino varus
    deformity. On the date of discharge
    her condition is stated to be “
    NWB left side with walker ” Exbt.
    P9 shows that she has to have a walker
    on the left side, in the affidavit
    also she says, the deformity of the
    left leg reduced and movement was
    restored. Though she was
    cross-examined by first and second
    opposite parties there is no effective
    cross-examination on the aforesaid
    aspects; averred in affidavit. Thus
    what is to be noted is a healthy girl
    after the surgery needs the aid of a
    walker, she had to lean on the left.



    9. Another aspect to be in this
    connection is, the nature of the
    defence, taken by the opposite party
    particularly the second opposite
    party. As has noted whereas the
    complainant would maintain that she
    followed the instructions and
    performed the exercise as was
    instructed and ultimately
    physiotherapist too was engaged still
    said deformity on the performance of
    the surgery persists. One defence of
    the opposite party is, she did not
    comply with the instructions, at the
    same time he seeks to maintain that it
    is due to “adoloscent idiopathic
    scolosis of the dorso lumber
    spine.” Exbt.P9 does not mention
    such a complication, Exbt. P3, the
    out-patient record has an entry on
    8.1.1998. “DL. Spine across of
    lumber region to the left. Now it is
    necessary to note, whereas the
    complainant maintained her left leg is
    short by 1 ½ inch, the second
    opposite party would deny the same and
    seeks to maintain that both the legs
    have same length. Incidentally Exbt.
    P8 photograph with the negative proved
    by affidavit shows the features of the
    leg, it shows the deformity. In
    paragraph 15 of the second opposite
    party`s version it is contended, on
    11.5.1998, the opposite party showed
    the complainant that on Rongerograms
    both legs were of equal length. But
    she was not convinced, the second
    opposite party contends on detailed
    examination, the opposite party found
    on 8.1.1998 that she was developing a
    deformity of the spine called `Adoloscent
    Idiopathic Scolosis’ of Dorso Lumber
    Spine which in ordinary words is a
    curvature of the spine caused lifting
    up of the left side of the pelvis and
    along with it the whole left, lower
    leg. So, while standing, the level of
    Pelvis, instead of being normal
    horizontal became oblique with the
    left lower limb also went up. This
    produced, an apparent and not true
    shortening of the left lower
    limb.” This pleading would go
    against his case that the deformity
    came into existence because of the
    negligence of the complainant in not
    adhering to the instructions. The
    effect of the same is also described
    in para 3 of th version he says as
    regards the said condition “Cause
    of this is not known and occurs
    between 10 years and skeletial
    maturity.” If that is the
    position, as has been noticed his case
    that the complication arose because of
    failure to adhere to the instructions
    cannot be supported. Thus in the very
    case of the opposite party there is
    inconsistency. It is significant the
    second opposite party admits when the
    complainant stands her left limb would
    not touch the ground because it would
    be lifted. The cause he says is a
    complication which as noticed is not
    disclosed till 8.1.1998. The
    complainant as P.W.1. denied the said
    suggestion saying that she has no such
    disease or complication.



    10. The burden of a complainant
    to establish negligence has to be
    judged on the facts of each case. In
    this case the complainant filed an
    affidavit detailing her case as well
    as offered for cross examination, that
    she had to go to, Apollo Hospital is
    not challenged in the
    cross-examination. None of the
    opposite parties has tendered any
    evidence either oral or documentary,
    except producing the case file. It is
    true, that the complainant moved
    I.A.779/2000 for the issue of a
    commission for examining,
    Dr.Gopalkrishnan, the said application
    was allowed, but the complainant filed
    another application later saying that
    for the reasons averred in the
    affidavit the order appointing the
    Commissioner has to be re-called. The
    reason averred in the affidavit is
    when the doctor was requested to give
    evidence he said due to certain
    subsequent events he is not in a
    position to give evidence in a case
    against a doctor. Of course, the
    averment by the petitioner by itself
    need not render the examination
    impossible as in such circumstances he
    could have taken steps for the issue
    of summons to the doctor for his
    examination before this Commission as
    a witness. The question is whether the
    failure to examine the said doctor, in
    the facts and circumstances of this
    case, would adversely affect the case
    of the complainant has to be judged in
    the context of the nature of the case
    pleaded by the opposite party, the
    affidavit and evidence of P.W.1 along
    with the materials already produced.
    As has already been noted, the
    condition of the complainant when she
    consulted the 2nd opposite party, she
    was healthy without any complaint, her
    position after the surgery at
    discharge from first opposite party
    hospital along with the said evidence
    would show the burden is shifted to
    the opposite parties to substantiate
    their case that the lifting of the
    left limb was due to a complication
    which developed later. At least the
    second opposite party could have filed
    an affidavit and offered for
    cross-examination. No reason whatever
    is assigned as to why anyone of them
    did not file affidavit. In such
    circumstances with due regard to the
    nature of the case pleaded by the
    second opposite party, and the
    evidence tendered by the complainant,
    unless the opposite parties
    substantiates, that deformity is the
    result of the condition pleaded by
    them, the case of the complainant in
    this regard has to be accepted. In
    this connection, if has to be noted,
    though it was contended that when the
    second opposite party wanted to stop
    the process at a particular stage the
    complainant insisted to continue the
    process for getting the desired
    height. This is not even put to P.W.1
    when she was examined. These are
    matters that could have been proved by
    filing affidavit and offering for
    cross-examination, that is not done.
    Since the exhibits are proved by
    affidavit and there being no challenge
    as regards the same the complainant is
    entitled to rely on them. Exbt.P1
    series discharge summaries, P2 series,
    P4 series, P5 series bills and Exbt.
    P6 series prescriptions along with
    Exbt. P3 series. Case records of the
    complainant 1st opposite party
    hospital support and corroborate the
    evidence of P.W.1 and her affidavit as
    to her treatment and details of 1st
    opposite party hospital. Exbt. P9
    discharge summary along with P10
    series. P11 series, P12 series, P13
    series and P16 series bills of the
    Apollo Hospital prove that she had to
    undergone surgery and treatment there
    , such is the situation it has to be
    found that the case pleaded by the
    opposite party that because of “Adoloscent
    idiopathic scolsis of the dorso lumbar
    spine” the present deformity
    developed is not substantiated. Then
    the case of the complainant that there
    is negligence and deficiency of
    service should be accepted. This
    point, therefore, found in favour of
    the complainant.

       

    Point Nos. 2 and 3 :

       

    11. The complainant has
    produced Exbts. P2 series, P4 and P5
    series bills evidencing payment to the
    first opposite party hospital. These
    bills take in an amount of
    Rs.1,94,122/-. This is bare expenses
    in the first opposite party hospital
    towards medicine, etc. The claim in
    the complaint is towards medical
    expenses Rs.2,43,000/- and for future
    treatment, mental agony, etc. the
    further claim is Rs.15 lakhs. Thus the
    total claim is Rs.17,43,000/- . The
    bills and medical expense and the
    other charges of the hospital alone
    cannot be the expenditure, there could
    be other incidental expenses also. In
    measuring the compensation the actual
    expenses which she had to meet at the
    first opposite party hospital and also
    the further expenditure she had to
    meet, the subsequent charges at the
    Apollo Hospital have to be kept in
    view. Apart, from the same, naturally
    she should have undergone physical
    pain as well as agony; a young girl
    becoming afflicted with such deformity
    will certainly be agonizing and
    desperate. The expenditure at the
    Apollo Hospital is sought to be
    established by Exbt. P10 series, P11
    series, P12 series, P13 series and P16
    series bills which come to more than
    Rs.2,00,000/- – (Rs. Two lakhs). Apart
    from the same she had to meet other
    expenditure also as seen from Exbt. P6
    series, – P14 series, P17 series, etc.
    Having regard to the aforesaid
    expenditure towards the hospital
    expenses, we consider that towards
    mental agony and medical expenses the
    complainant is eligible for a total
    compensation of Rs.5,00,000/- (Rs.
    Five lakhs).

        

    12. Now the liability to pay
    the said amount has also to be gone
    into particularly in the context of
    the submission by the learned Counsel
    for the first opposite party that, if
    at all, there is any liability that
    should be only for the second opposite
    party, doctor. This is a tortious
    liability; admittedly, at the relevant
    period the second opposite party,
    doctor was employed in the first
    opposite party hospital. Therefore,
    the first opposite party is
    vicariously liable for the tortious
    acts of the employee during the course
    of his employment. But one important
    aspect to be noted is, the second
    opposite party in para 2 of the
    version stated that he has taken a
    professional indemnity policy for
    doctors and medical practitioner
    during the relevant period from the
    New India Assurance Company Limited
    and that the said party has to be
    impleaded. Accordingly the complainant
    moved a petition for impleading the
    said party `New India Assurance
    Company Limited’ and was impleaded as
    the 3rd opposite party as per order on
    I.A.983/99. The 3rd opposite party
    though was served remained absent and
    was set ex-parte. Therefore, so far as
    the liability of the second opposite
    party doctor is concerned the 3rd
    opposite party has to indemnify to the
    extent of the insured amount. The
    second opposite party does not state
    for what amount he took the policy on
    the extent for the insurance cover.
    The 3rd opposite party is ex-parte.
    The 3rd opposite party cannot be
    absolved from the liability to the
    extent of the policy amount, the 3rd
    opposite party will be liable to
    indemnify the second opposite party to
    the extent of the amount covered by
    the policy. In the circumstances the
    complainant shall be entitled to her
    costs which we fix at Rs.2000/- Points
    found accordingly.

      

    In the result opposite parties 1 and 2
    are directed to pay Rs.5,00,000/- (Rs.
    Five lakhs) to the complainant, the
    3rd opposite party is liable to
    indemnify the second opposite party to
    the extent of the amount covered by
    the policy. The said amount shall be
    paid as above within three months of
    the receipt of the copy of this order
    failing which the said amount will
    bear interest at 14% from the date of
    the expiry of the said three months
    till payment or recovery. The
    complainant shall be entitled to her
    costs Rs.2000/-.

    Complaint allowed with 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.

       

    JUDGMENT

        

    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.

         

    ORDER

        

    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.

    Appeal 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 patient’s 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 child’s
    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
    patient’s relatives have been made to understand the
    importance of repeated X-ray.     
    (Para 7)

     

    Result : Complaint allowed.

     

    ORDER

     

    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 complainant’s
    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
    John’s, it is clearly mentioned that X-ray must be
    repeated after a few days. In Champbell’s 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 patient’s 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 child’s
    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
    patient’s 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.

     

    Complaint allowed.

        

  • Smt.
    Bett Bal Saxena v. Dr. S.L. Mukherjee, Orthopaedic Surgeon
    & Ors.


    2001 (2) CPR 163

      

    STATE CONSUMER DISPUTES REDRESSAL COMMISSION,  MADHYA PRADESH : BHOPAL

       

    Consumer Protection Act, 1986 – Sections 12 and 17 – Medical
    Negligence – Complainant – appellant was operated by
    respondents for removal of bony growth in right hip joint on
    28-8-1992 – No relief was found in pain – Second operation
    done by other doctor on 16-4-1993 and a moping Gauze Piece
    found inside the wound which was removed and complainant
    recovered – Affidavit of second doctor proved that gauze
    piece was found sinus was formed and pus was coming out of
    wound – Infrence is that there was negligence at that time
    of first operation which resulted forming of hoemotoma and
    pus – Respondent doctors failed to take proper care while
    closing operated part and left a mopping gauze inside the
    wound – It was case of medical negligence – Complainant -
    Appellant held entitled to Rs. 40,168/- amount incurred
    second operation and Rs. 25,000 as compensation for mental
    and physicalagony and Rs. 3,000/- as cost.    
    (Paras 5 to 10 )

      

    Result – Appeal allowed.

     

    Important Point

     

    When doctor while closing the operated area left a mopping
    gauze piece inside the wound it would be a case.

     

    ORDER

     

    B.L. Khare, Member – This is a complainant’s appeal
    against the order dated 30/11/1999 passed in Case No. 277/93
    by the District Consumer Disputes Redressal Forum, Jabalpur
    (for short the ‘District Forum’).

      

    2. The facts giving rise to this appeal are that the
    appellant Smt. Bell Bai Saxena was suffering from severe
    pain in hips so she approached to respondent Nos. 1 and 2
    the Father and the Son who are Orthopaedic Surgeon, running
    a clinic as P.G.Hospital. The respondent No. 3 in Insurance
    Company with Whom respondent Nos. 1 and 2 insured for
    medical claim if any medical contingency arises. The
    respondent Nos. 1 and 2 examined the appellant and found
    that appellant was a chronic patient of Exostosis and
    advised her operation for removal of extra bony growth in
    right hip-joint. The appllant was admitted in the hospital
    of respondent Nos. 1 and 2 as indoor patient on 18-8-1992,
    The operation to remove bony growth in right hip joint was
    performed on 20-8-1992. The appellant was admitted in the
    hospital upto 3-9-1992 on this date she was discharged from
    the hospital thereafter appellant returned to her house
    which is situated at Udaypura District Raisen. When the was
    no relief  in
    pain she approached again, respondent Nos. 1 and 2 on
    21-9-1992 for examination. The respondents told her that she
    will have to be operated again. The appellant had lost faith
    in the respondent Doctors, therefore, she did not continue
    the treatment of respondent Nos. 1 and 2 and consulted
    another doctor Dr. Jitendra Jamdar on 23-9-1992. Dr. Jamdar
    examined the appellant and advised some medicines. The
    applleant continued the treatment of Dr. Jamdar for five
    months. When there was no relief, so the appellant came to
    Bhopal and consulted Dr. B. Das who is an Orthopaedic
    Surgeon. Dr. Das examined the patient on 16-3-1993 and
    recommended that an operation will have to be done so after
    one month on 16-4-1993 an operation or right hip joint was
    performed by Dr. Das in Suresh Nursing Home at Bhopal.
    During this operation Dr. Das found a Moping Gauze piece
    inside the wound, it shows that Dr. S.L. Mukherjee, the
    respondent No 1 and his son Dr. Abhijeet Mukherjee the
    respondent No 2. have acted in a negligent manner while
    performing the operation of appellant. Moping Gauze piece
    was left by them inside the wound, therefore, the appellant
    had to suffer continuously and there was pain and pus was
    coming from the wound. It is the allegation of the appellant
    that respondent Nos. 1 and 2 have not taken proper care
    while performing the operation of the hip-joint. Thus for
    medical negligence and deficiency in sevice the appellant
    approached the District Forum and claimed a compensation of
    Rs. 1,62,003.03 paise from the respondents. The District
    Forum after examining the evidence adduced by the parties
    found that there was no negligence on the part of the
    respondents. On  the
    other hand, it was the complainant who was negligent in
    changing doctor after doctors, therefore, found that the
    complainant had failed to prove the allegations of medical
    negligence, therefore, rejected the complaint and ordered
    the complainant to pay Rs 2,000/- to the respondents as
    costs of the proceedings. It is against this order, the
    complainant has preferred this appeal.

      

    3. The main contention of the complainant was that it
    was the respondent Nos. 1 and 2 who acted negligently while
    performing operation and a Moping Gauze piece was left by
    them in the wound. This could happen only when after
    operation dressing is done. The Doctors have not taken
    proper care to clean, wash and negligently left the Moping
    Gauze piece in the wound due to which the wound could not
    heal up and there was continuous pain and formation of pus
    in the wound for which she has to approach several Doctors
    for treatment and spent Rs 62,000/- together with Rs.
    1,00,000/- as compensation for mental and physical agony.

     

    4. The respondents No 1 and 2 denied the allegations
    and submitted their own affidavit and affidavits of Dr.
    Sanjay Khanna who is anaestheist and Dr. Rajeev Bhandari,
    who was assisting the operation. The district Forum has
    analysed the case at length and has recorded the finding in
    the case. The respondents have submitted that they have
    performed the operation on 20-8-1992 and kept the patient in
    the hospital. The conducted all the investigations required
    for conducting operation. The Exostosis which was developed
    near the right hip joint of the appellant was cut and
    removed. On cutting any bone the raw bone surface has
    tendency to bleed slowly by a process called “oozing”,
    This blood collects inside the wound sometimes and forms a
    solid blood clot. The blood clot slowly liquifies inside the
    body to form a collection of liquid called “Haematoam”
    within one to few weeks after the operation. They submitted
    that it is not an unusual thing to happen in case of
    EXOSTOSIS, If the volume of haematoma is small, it gets
    absorbed, but if the volume is large it tends to leak out of
    some place in the original stitched wound or any weak spot
    in the skin, In the present case, they stated that they had
    checked that the bleeding has stopped from the operated
    area, the wound was closed by them. They took all precaution
    while performing operation, therefore there was not question
    of leaving a Moping Gauze piece inside the wound. The
    respondents further made clear that during surgery a Moping
    Gauze piece of size 5″ x 5″ cannot remain inside
    the wound because mopping swab is always with a tag which is
    clamped with a forceps outside the wound so that it is
    visible. They have stated that they checked an rechecked the
    operated area so strictly for fresh bleeding before applying
    the stitches. In the event of a big surgical mopping swab
    left inside the wound, there will be tremendous tension in
    the tissues on applying the stitches, then there will be
    difficulty in closing the wound, Therefore, they submitted
    that they have not acted negligently during the operation
    and also while closing the wound, Therefore , they submitted
    that they have not acted negligently during the operation
    and also while closing and stitching the wound. In reply,
    the respondents further stated that after operation post
    operative care was duly taken when the wound had perfectly
    healed, the stitches were removed and the patient was
    discharged from the hospital on 3-9-1992. In his affidavit
    respondent No, 2 Dr. Abhijeet Mukherjee in paras 5,8 and 7
    has stated that small gauze pieces are not used in operation
    theatre for their hospital, large storage of atleast
    10″ x 10” are used in their hospital and these
    sponges have radio opaque lining which can be detected in
    any post operative X-ray, hence, If any sponge remains
    inside the wound, it can be easily detected through an
    X-ray. No such X-ray has been filed by the complainant to
    prove that the mopping Gauze piece was inside the wound. The
    respondents admitted that on 21-9-1992 the appellant visited
    them with complaint of swelling and pain at the place of
    operation and on this, they examined the patient and found
    that there was some discharge of blood from the wound though
    a small opening, therefore, they dialated and enlarged the
    small opening and removed the haematoma. After removing
    haematoma, fresh bleeding started which was packed y a Gauge
    to stop bleeding and the appellant was advised to come after
    2-3 days for removal of gauge packing. After that the
    patient did not visit their hospital and consulted several
    other doctors. They have specially denied that they have
    advised for second operation of the appellant because the
    patient  did not
    visit after 21-9-1992, therefore, they are not responsible
    for any complications developed later on. They have also
    drawn our attention to the certificate given by Dr. B. Das
    of Bhopal dated 28-8-1993 which reads thus :

     

    “Smt. Beti Bal Saxena 60 years. F BPL

      Operated on
    16-4-1993 for Discharge sinus from Gluteal region Rx- Over
    Gv. TR

     

    Wound had healed following Surgery a foreign body (mopping
    gauge piece about 5″ x 5″ with a tag in one
    corner) was removed from inside the muscle mass of Glutel.
    Wound had completely healed following removal of F.B. Needs
    no treatment.

     

    Signed/-

    (Dr .B. Das)

    28-8-1993″

     

    5. In the affidavit Dr. Das has stated that when he
    performed operation on 16-04-1993 he found a Mopping Gauze
    piece of 5″x 5″ under skin Fat and muscles. The
    plea of the respondent that the mopping Gauze piece was
    found between Fat and Muscle is not corroborated Dr. Das.
    The District Forum while analyzing the affidavit of Dr. B.
    Das has given a finding that the gauze piece was found
    between skin and fat.

      

    6. We have gone through the evidence and find that
    the time of giving discharge certificate, Dr. Das had
    mentioned that the mopping Gauze piece was found inside the
    muscle mass of Glutel and in his affidavit he has also
    stated that (the mopping gauze piece was found below skin
    fat and muscle, while, the District Forum has mentioned that
    the gauze piece was found between skin and fat which is not
    corroborated with the affidavit of Dr. B. Das , therefore
    this finding of the district forum is erroneous. Dr. B. Das
    has further stated in his affidavit that if any foreign body
    remains inside the body then it forms a sinus and the wound
    does not heal up and pus remains coming out from that wound.
    In the affidavit, Dr. Das has stated that when he examined
    the patient, he found that at the first place of operation,
    pus was oozing and when he removed the foreign body i.e.
    gauze piece the wound was cured and the patient was alright.

     

    7. From analysis of the complaint and affidavits
    adducing evidence, it is clear that the appellant as
    continuously suffering from pain and the pus was oozing out
    from the wound that means a sinus was formed and the pus was
    coming out from the wound. The affidavit of Dr. Das makes
    clear that the gauze was below the muscle, therefore, as per
    opinion of Dr. Das the pus was coming out from the wound. In
    this case, therefore on the basis of affidavit of Dr. Das,
    the usual inference is that there was some negligence at the
    time of first operation which resulted forming of haemotoma
    and pus oozed out from the place of first operation,
    therefore, the finding of the District Forum is erroneous
    and cannot be sustained.

     

    8. True, the medical negligence cannot be attributed
    if a Doctor has followed the discipline and the ethics
    provided in Medical Books and if the Doctor has acted with
    reasonable degree of skill and care, then he cannot be said
    to be negligent. But in the instant case, we find that so
    far as the operation part is concerned, Doctor has performed
    operation as per medical norms and ethics but they have not
    taken proper care while closing the operated area and left a
    mopping gauze piece inside the wound. Therefore, this is a
    case of medical negligence.

     

    9. To conclude, we find that the appellant has proved
    by the opinion of Medical Expert Dr. B. Das, who was Head of
    the Dept of Orthopaedica in the Medical Colleges that the
    respondents were negligent while closing the wound and they
    left gauze piece inside the wound and therefore, they are
    responsible for deficiency in service. We, therefore, find
    that due to this negligent act of the respondents, the
    appellant was constrained to approach other Doctors, Dr.
    Jamdar and Dr. B. Das and she was required to pay additional
    fee of Rs 24,752.85 paise and Rs 15,415.30 paise in all
    total of Rs. 40,168.15 paise.

     

    10. So far as fees paid to the respondents is
    concerned, it was for the hospital charges and the operation
    performed by the respondents. Therefore, we do not take that
    fees into consideration we, therefore, are of the opinion
    that the respondents shall pay jointly or severally amount
    of Rs. 40,168.15 paise towards the expenses incurred in
    treatment and compensation of Rs. 25,000/- for mental and
    physical agony and Rs. 3,000.00 as cost of the proceedings
    throughout within a period of two months from the date of
    receipt of certified copy of the order failing which the
    total amount of Rs. 68,168:15 paise shall carry interest at
    the rate of 9% per annum from the date of this order.

     

    11. In view of the above, the appeal is allowed. The
    order of the district Forum is set-aside. A copy of this
    order be conveyed to the parties and a copy be sent to the
    District Forum alongwith the record of the case.

     

    Appeal allowed.

        

  • Dr.
    Anumalla Satyanarayana v. K. Shankar


    I(2000)CPJ288
    S C DRC, AP.

      

    Consumer Protection Act, 1986-Section
    15-“Appeal”-Section2(1)(g)-“Medical
    Negligence”-Complainant suffering
    from pain in the right leg-Consulted
    opposite party-Kept under his own
    diagnosis-No Relief-Complainant went
    another hospital-Leg was to be
    amputated because of gangrene had
    settled-complaint-District Forum
    allowed Complaint-Appeal-Opposite
    party did not consult any
    specialist-Did not refer the
    complainant to any other
    hospital-Order of District Forum upheld-Complainant
    entitled to compensation.

      

    Held: The opposite party diagnosed
    that the complainant was suffering
    from “Thrombo  Angitis obliterans”
    which pertains to the blood and
    treated him accordingly. The opposite
    party advised diet control orally
    which was not denied by the
    complainant. But while following all
    the instructions of the opposite
    party under his treatment, the pain
    was aggravated and the complainant
    on his own discontinued the treatment
    and came to Hyderabad. In other words,
    those last ten days prior to
    coming to Hyderabad and getting
    admitted in Apollo Hospital were
    crucial and the fact that the leg
    had to be amputated due to gangrene
    established that there was negligence
    on the part of the opposite party. If
    the opposite party could not give
    relief to the complainant or suspected
    that gangrene could set in (as he
    admits having warned the complainant)
    he should have referred him to a
    vascular specialist instead of
    continuing to treat himself.

        

    We, therefore are of the view that in
    the present case, the opposite party
    continued to treat the
    complainant according to his own
    diagnosis, though the complainant
    complained of no relief. The
    opposite party neither consulted
    another specialist nor referred the
    complainant to anther hospital/specialist
    though he was a known diabetic. The
    opposite party admitted that in his condition,
    gangrene could set in any time. Which
    actually was diagnosed to be so on the
    very next day when the respondent
    was admitted in Apollo Hospital and
    his right leg was amputated on 9.7.1994.
    Loosing the leg must have been a
    traumatic experience apart from the
    inconvenience and expenditure
    involved. It has also meant loss of
    earning by the bread winner
    complainant.

      

    We, Therefore, uphold the order of
    District Forum. The appeal stands
    rejected.

        

  • Mrs.
    K.K. Radha v. Dr. G.U. Shekhar &
    Anr.


    1994
    (3) CPJ 376(Ker SCDRC)

      

    the complainant alleged that she
    sustained a fracture on the lower part
    of her leg, for which she got admitted
    to BKM Hospital, Payannur, where she
    was treated by Dr. Shekhar. She was
    told that he had to implant
    compression plate and having got it
    purchased, it was not used and instead
    wires and screws were used. After
    removal of plaster it was noticed that
    site of operation had developed an
    abscess. Second opinion was taken and
    an emergency operation was performed
    to remove foreign bodies inside her
    leg, and subsequently plaster had to
    be recast four times. Negligence was
    held on the basis of:

      

    · Compression plate not used after
    getting it purchased and neither the
    complainant nor her husband were
    informed anything about it. It was not
    known what was done with the same. The
    x-ray film clearly revealed this.

      

    · Dr. Usman, Professor in
    Orthopaedics in the Kasturba Medical
    College, Mangalore clearly stated that
    for treatment in the case of fracture
    of tibia using of wires is not
    advisble. Departure from the orthodox
    course of treatment was not justified
    by the opposite parties.

     

    · The standard of care and skill
    expected of a doctor was grossly
    wanting as was evidenced by the need
    to remove extraneous materials found
    inside the leg by operation conducted
    by Dr. Usman.

     

    Rs.2 lacs was awarded as compensation.
    As the notices could not be served on
    Dr. Shekhar and since his address was
    not known, the second opposite party,
    i.e. the hospital’s vicarious
    liability was fixed and it was asked
    to pay the compensation awarded.

     

    In the case of P.P. Ismail v. K.K.
    Radha, an appeal was preferred against
    the decision of the Kerala State
    Commission by Mr. P.P. Ismail,
    Managing Director of BKM Hospital, who
    was asked to compensate to the tune of
    Rs. 2 lakhs as he was held vicariously
    liable for the negligence of Dr. G.U.
    Shekhar.

      

    The National Commission found no merit
    in this appeal, and upheld the
    decision of the State Commission.

       

  • Shibu
    v. St. Joseph Hospital & Ors.


    1995(3)
    CPR 177 (Kerala SCDRC)

       

    More
    Details       
    Click
    Here


       

  • V.P.Shanta
    & Ors. Cosmopolitan Hospitals (P)
    Ltd & Ors.


    1997(1)CPR 377 (Kerala SCDRC)

       

    the complainant’s husband aged 59
    years had a fall from his cot on
    4.7.1990. As he went to the
    Cosmopolitan Hospital., Trivandrum
    where the 2nd opposite party examined
    him and opined that he had fracture of
    left neck of femur for which he was
    operated on 6.7.1990 . Simultaneously,
    he was also operated upon his salivary
    gland. During the post-operative
    period it was noticed that he had some
    respiratory difficulty but the duty
    doctors did not take it seriously and
    the operating surgeon had left.
    Ultimately the 5th opposite party came
    to the hospital, and examined the
    patient and announced that he was
    dead. The behavious of the hospital
    authorities after the death was highly
    suspicious. They sent a copy of the
    bill only after repeated requests, but
    refused to part with the x-ray films.
    It was alleged that this was on
    account of the fear of the fact that
    providing these x-rays would have
    revealed that conservative treatment
    like traction and medication would
    have cured the problem; but, in order
    to increase the number of operations
    and to augment income the decision to
    operate was taken. The hospital had
    also failed to carry out necessary
    pre-operative investigations and the
    services of a cardiologist were not
    obtained.

       

    The State Commission held deficiency
    in service on part of the hospital on
    two issues (i) failure to deliver
    X-ray films, as the patient and his
    attendants (complainants in the
    instant case) have a right to be
    informed of the nature of injury
    sustained, and this right was
    deprived. The contention that the
    relatives had taken away the X-ray
    film, without furnishing a receipt was
    not accepted; (ii) not making proper
    arrangement for observation of the
    patient between 4.45 p.m. to 5.40 p.m.
    on 6.7.1990 after the patient was
    removed to post operative ward which
    was required after two operations on
    the patient out of which one was
    admittedly a very major operation. The
    patient developed cardiac arrest and
    pulmonary embolism and it was not
    certain that the complainant could
    have been saved. Something could have
    been done if the patient was not left
    unattended by a doctor and if
    cardiologist was summoned immediately.

       

    A compensation of Rs.25000/- with
    interest at the rate of 12% p.a. from
    the date of death till payment was
    awarded. This amount was to be paid by
    the hospital, as no negligence could
    be established against the doctors.

         

  • NACHHATAR
    SINGH v. MALKEET SINGH


    III (2001) CPJ 237

      

    Section 15 – Appeal – Section 2(1)(g)
    Deficiency in Service – Section 14(d)
    – Compensation – Medical Negligence
    Complainant’s minor daughter suffered
    fracture on left arm – Take to
    opposite party – Applied plaster – No
    cure – Taken to doctor – Complaint -
    District Forum granted Rs. 50,000/- as
    compensation – Appeal – Opposite party
    not a qualified doctor – Not authorise
    to provide such services on charging
    fees – Compensation rightly awarded.

      

    Held : Admittedly, the
    appellant is not a qualified doctor.
    Whatever knowledge he had gained from
    his experience in giving such
    treatment, may be, but that does not
    authorise him to provide such services
    on charging fees. The very fact that
    unqualified persons attempted to
    render services of a doctor on
    charging fees will amounts to quackery
    as has been rightly described in the
    impugned order and their continuance
    cannot be encouraged.

      

    Poor people should expect poor quality
    of medical service cannot be made a
    rule. It is for the protection of such
    poor people that Consumer Protection
    Act has been enacted to safeguard
    their rights. May be other remedies,
    criminal in nature, are available but
    that can hardly be a ground to deny
    the relief to the complainant under
    the Consumer Protection Act. The point
    taken up in the ground of appeal in
    this respect only deserve to be
    mentioned to be rejected.

       

    When a young girl had suffered
    fracture of the arm proper treatment
    was required to be given to her. If
    the appellant had provided imperfect
    treatment ruining her future prospects
    in life, on leniency deserves to be
    taken in favour of the appellant. No
    doubt on the question of disability
    some better evidence could be made
    available but that does not mean that
    the complainant is to be totally
    deprived of the compensation. A
    reasonable and just compensation is
    required to be fixed in such cases
    even in the absence of actual loss
    having been suffered. Rather it is
    very difficult for taking a strict
    view in the matter of fixing of
    compensation in the matter of minor
    child who had to bear with the loss,
    for life time. The amount of
    compensation awarded in the present
    case is just and reasonable, which
    does not call for interference in this
    appeal.

       

    Result :Appeal dismissed with cost.

        

    ORDER

      

    Mr. Justice A.L. Bahri, President -
    District Forum, Faridkot on March 25,
    1998 allowed complaint filed by
    Malkeet Singh against Nachhatar Singh
    Tohra. A direction was given to the
    opposite party to pay a sum of Rs. 50,
    000/- out of which Rs. 10,000/- to be
    straightway paid to Malkeet Singh,
    complainant whereas the remaining
    amount of Rs. 40,000/- payable to
    minor Gagandeep kaur was ordered to be
    deposited in the State Bank of Patiala,
    Faridkot in Special Term Deposit till
    attainment of majority. The said order
    has been challenged in this appeal
    filed by the opposite party, Nachhatar
    Singh.

       

    2. On May 15, 1997 Gagandeep Kaur, a
    minor daughter of Malkeet Singh
    suffered fracture on her left arm. She
    was taken to the opposite party,
    Nachhatar Singh who used to provide
    treatment for Fractured bones. On
    charging fee of Rs. 500/- Nachhatar
    Singh applied plaster of paris on the
    arm of Gagandeep Kaur. A prescription
    for medicines was also got prepared at
    his dictation. On subsequently visit,
    he charged Rs. 150/-. In spite of
    this, there was no cure. Ultimatel,
    the patient was taken to a docotr who
    provided necessary treatment. In all
    the complainant had to spent Rs.
    40,000/- to Rs. 50,000 /-. In the
    complaint filled before the District
    Forum a sum of Rs. one lac was claimed
    as compensation on account of loss
    suffered due to deficiency in
    rendering service on the part of the
    opposite party.

        

    3. Nachhatar Singh Tohra contested the
    complaint by submitting his version.
    All the allegations made by the
    complainant were denied. He denied
    having given any treatment to
    Gagandeep Kaur. He also denied having
    got prepared the prescription slip. In
    fact he did not give any treatment
    much less charging of fees.
    Replication was filed by the
    complainant reiterating the stand as
    taken up in the complaint. Both the
    parties led their evidence on
    affidavits and documents. The District
    Forum while holding deficiency in
    rendering services allowed the
    compensation as referred to above.

        

    4.We have gone through the grounds of
    appeal and have heard Counsel for the
    respondent. it is asserted on behalf
    of the respondent that at no stage the
    complainant disclosed any
    representation having been made by the
    opposite party, proclaiming to give
    treatment for fractured bones. No such
    sign board was displayed at the
    outside the house of the opposite
    party inviting patients for treatment.
    Even the complainant did not assert
    that he hired the services of the
    appellant or that the appellant had
    agreed or promised to set the bones
    right. It has further been asserted in
    the ground of appeals that without any
    medical evidence no findings regarding
    negligence on the part of the opposite
    party could be arrived at. It is
    further asserted that so-called
    prescription slip is not of medicines
    but is of ghee, sugar and grounded
    gram etc. (tonic) to strengthen the
    body. The District Forum wrongly
    asserted and described the appellant
    as a quack. From a quack the skill of
    a doctor was not expected. The
    complainant cannot be treated as a
    consumer as no fees were changed.

        

    5. We have given due consideration to
    such like assertion as taken up in the
    ground of appeal. But we find no merit
    in this appeal. As per evidence of
    Malkeet Singh (two affidavits produced
    by him), the fractured bones were
    exposed as found on the child and the
    opposite party had put plaster. This
    treatment was not proper. In the
    complaint specifically it was asserted
    that the plaster was applied on the
    first day. No doubt putting plaster is
    one of the modes of treatment of
    management of bones. However when
    bones were exposed putting of the
    plaster was not specifically denied.
    The argument as in the grounds of
    appeal that medical evidence in the
    form of expert witness should have
    been produced to prove negligence
    cannot be accepted in the facts of the
    present case. The complainant produced
    X-ray, Ultrasound and Prescription
    Slip and referred to the same in his
    affidavit. Thus such documents could
    be relied upon. On ultrasound fracture
    of the bone was observed and
    prescription of the doctor indicated
    debridment having been done suggesting
    that cells on the skin were dying
    which were removed. There is no merit
    in the assertion that only from
    medical expert negligent act could be
    proved. Admittedly, the appellant is
    not a qualified doctor. Whatever
    knowledge he had gained from his
    experience in giving such treatment,
    may be, but that does not authorise
    him to provide such services on
    charging fees. The very fact that
    unqualified persons attempted to
    render services of a doctor on
    charging fees will amounts to quackery
    as has been rightly described in the
    impugned order and their continuance
    cannot be encouraged.

        

    6. Poor people should expect poor
    quality of medical service cannot be
    made a rule. It is for the protection
    of such poor people that Consumer
    Protection Act has been enacted to
    safegaurd their rights. May be other
    remedies, criminal in nature, are
    available but that can hardly  be
    a ground to deny the relief to the
    complainant under the Consumer
    Protection Act. The point taken up in
    the ground of appeal in this respect
    only deserves to be mentioned to be
    rejected.

        

    7. When a young girl has suffered
    fracture of the arm proper treatment
    was required to be given to her. If
    the appellant had provided imperfect
    treatment ruining her future prospects
    in life, no leniency deserves to be
    taken in favour of the appellant. No
    doubt on the question of disability
    some better evidence could be made
    available but that does not mean that
    the complainant is to be totally
    deprived of the compensation. A
    reasonable and just compensation is
    required to be fixed in such cases
    even in the absence of actual loss
    having been suffered. Rather it is
    very difficult for taking a strict
    view in the matter of fixing of
    compensation in the matter of minor
    child who had bear with the loss, for
    the time. The amount of compensation
    awarded in the present case is just
    and reasonable, which does not call
    for interference in this appeal.

        

  • SMT.
    BETI BAI SAXENA v. DR. S.L. MUKHERJEE


    III (2001) CPJ 251

       

    Consumer Protection Act, 1986 -
    Sections 2(1)(g), 14(1)(d) – Medical
    Negligence – Deficiency in Service -
    Moping Gauze piece left in the wound
    while performing operation – Complaint
    dismissed by Forum – Hence appeal -
    Appellant continuously suffering from
    pain, pus oozing out from the wound -
    Allegation proved by the opinion of
    Medical Expert – Deficiency in service
    on behalf of opposite parties proved -
    Order of Forum set aside – Complainant
    entitled to compensation.

      

    Held :  In the instant
    case, we find that so far as the
    operation part is concerned, doctor
    has performed operation as per medical
    norms and ethics but they have taken
    proper care while closing the operated
    area and left a mopping gauze piece
    inside the wound. Therefore, this is a
    case of medical negligence.

        

    To conclude, we find that the
    appellant has proved by the opinion of
    Medical Expert Dr. B. Das, who was
    Head of the Department of Orthopaedic
    in the Medical Colleges that the
    respondents were negligent while
    closing the wound and they left gauze
    inside the wound and, therefore, they
    are responsible for deficiency 
    in service.

     

    Result : Appeal allowed

          

    ORDER

       

    Mr. B.L. Khare, Member – This
    is a complainant’s appeal against the
    order dated 30.11.1999 passed in Case
    Nos. 277/93 by the District Consumer
    Disputes Redressal Forum, Jabalpur
    (for short the District Forum).

        

    2. The facts giving rise to this
    appeal are that the appellant Smt.
    Beti Bai Saxena was suffering from
    server pain in hips so she approached
    to respondant Nos. 1 and 2 the father
    and the son who are Orthopaedic
    Surgeons, running a clinic as P.G.
    Hospital. The respondent No. 3 is
    Insurance Company with whom respondent
    Nos. 1 and 2 insured for medical claim
    if any medical contingency arises. The
    respondent Nos.  1 and 2 examined
    the appellant and found that appellant
    was a chronic patient of EXOSTOSIS and
    advised her operation for removal of
    extra bony growth in right hip-joint.
    The appellant was admitted in the
    hospital of respondent Nos. 1 and 2 as
    indoor patient on 18.8.1992. The
    operation to remove bony growth in
    right hip joint was performed on
    20.8.1992. The appellant was admitted
    in the hospital upto 3.9.1992 , on
    this date she was discharged from the
    hospital thereafter appellant returned
    to her house which is situated at
    Udaypure, District Raisen. When there
    was  no relief in pain she
    approached again respondant Nos. 1 and
    2 on 21.9.1992 for examination. The
    respondents told her that she will
    have to be operated again. The
    appellant had lost faith in the
    respondents doctors, therefore, she
    did not continue the treatment of
    respondent Nos. 1 and 2 and consulted
    another doctor Dr. Jitendra Jamdar on
    23.9.1992. Dr. Jamder examined the
    appellant and advised some medicines.
    The appellant continued the treatment
    of Dr. Jamdar for five months. When
    there was no relief, so the appellant
    came to Bhopal and consulted Dr. B.
    Das who is an Orthopaedic Surgeon. Dr.
    Das examined the patient on 16.3.1993
    and recommended that an operation will
    have to be done so after one month on
    16.4.1993 an operation of right hip
    joint was performed by Dr. Das in
    Suresh Nursing Home at Bhopal. During
    this operation, Dr. Das found a Moping
    Gauze piece inside the wound, it shows
    that Dr. S.L. Mukherjee, the
    respondent No.1 and his son Dr.
    Abhijeet Mukherjee, the respondent
    No.2 have acted in a negligent manner
    while performing the operation of
    appellant. Moping Gauze piece was left
    by them inside the wound, therefore,
    the appellant had to suffer
    continuously and there was pain and
    pus was coming from the wound. It is
    the allegation of the appellant that
    respondent Nos. 1 and 2 have not taken
    proper care while performing the
    operation of right hip joint. Thus for
    medical negligence and deficiency in
    service the appellant approached the
    District Forum and claimed a
    compensation on Rs. 1,62,003.30 paise
    from the respondents. The District
    Forum after examining the evidence
    adduced by the parties found that
    there was no negligence on the part of
    the respondents. On the other hand, it
    was the complainant who was negligent
    in changing doctor after doctor,
    therefore, found that the complainant
    had failed to prove the allegations of
    medical negligence, therefore,
    rejected the complaint and ordered the
    complainant to pay Rs. 2,000/- to the
    respondents as costs of the
    proceedings. It is against this order,
    the complainant has preferred this
    appeal.

       

    3. The main contention of the
    complainant was that it was the
    respondent Nos. 1 and 2 who acted
    negligently while performing operation
    and a Moping Gaze piece was left by
    them in the wound. This could happen
    only when after operation dressing is
    done. The doctors have not taken
    proper care to clean, wash and
    negligently left the Moping Gauze
    piece in the wound due to which the
    wound could not heal up and there was
    continuous pain and formation of pus
    in the wound for which she has to
    approach several doctors for treatment
    and spent Rs. 62,000/- in the
    treatment. She claimed this Rs.
    62,000/- together with Rs. 1,00,000/-
    as compensation for mental and
    physical agony.

      

    4. The respondent Nos. 1 and 2 denied
    the allegations and submitted their
    own affidavit and affidavits of Dr.
    Sanjay Khanna who is anaesthetist and
    Dr. Rajeev Bhandari, who was assisting
    the operation. The District Forum has
    analysed the case at length and has
    recorded the finding in the case. The
    respondents have submitted that they
    have performed the operation on
    20.8.1992 and kept the patient in the
    hospital. They conducted all the
    investigations required for conducting
    operation. The Exostosis which was
    developed near the right hip joint of
    the appellant was cut and removed. On
    cutting any bone the raw bone surface
    has a tendency to bleed slowly by a
    process called “oozing”.
    This blood collects inside the wound
    sometimes and forms a solid blood
    clot. The blood clot slowly liquifies
    inside the body to form a collection
    of liquid called “Haematoma”
    within one to few weeks after the
    operation. They submitted that it is
    not an unusual thing to happen in case
    of EXOSTOSIS. If the volume of
    haematoma is small, it gets absorbed,
    but, if the volume is large, it tends
    to leak out of some place in the
    original stitched wound or any weak
    spot in the skin. In the present case,
    they stated that they had checked that
    the bleeding has stopped from the
    operated area, the wound was closed by
    them. They took all precaution while
    performing operation, therefore, there
    was no question of leaving a Moping
    Gauze piece inside the wound. The
    respondents further made clear that
    during surgery a Moping Gauze piece of
    size 5″ * 5″ cannot remain
    inside the wound because mopping swab
    is always with a tag which is clamped
    with a forceps outside the wound so
    that it is visible. They have stated
    that they checked and re-checked the
    operated area so strictly for fresh
    bleeding before applying the stitches.
    In the event of a big surgical mopping
    swab left inside the wound, there will
    be tremendous tension in the tissues
    on applying the stitches, then there
    will be difficulty in closing the
    wound. Therefore, they submitted that
    they have not acted negligently during
    the operation and also while closing
    and stitching the wound. In reply, the
    respondents further stated that after
    operation, post operative care was
    duly taken and when the wound had
    perfectly healed, the stitches were
    removed and the patient was discharged
    from the hospital on 3.9.1992. In his
    affidavit respondent No. 2 Dr.
    Abhijeet Mukherjee in paras 5, 6 and 7
    has stated that small gauze pieces are
    not used in operation theatre of their
    hospital, large sponge of atleast
    10″ *10” are used in their
    hospital and these sponges have radio
    opaque lining which can be detected in
    any post operative X-Ray, hence, if
    any sponge remains inside the wound,
    it can be easily detected through an
    X-Ray. No such X-Ray has been filed by
    the complainant to prove that the
    Moping Gauze piece was inside the
    wound. Then respondents admitted that
    on 21.9.1992, the appellant visited
    them with complaint of swelling and
    pain at the place of operation and on
    this , they examined the patient and
    found that there was some discharge of
    blood from the wound through a small
    opening, therefore, they dialated and
    enlarged the small opening and removed
    the haematoma. After removing
    haematoma, fresh bleeding started
    which was packed by a Gauze to stop
    bleeding and the appellant was advised
    to come after 2-3 days for removal of
    gauze packing. After that the patient
    did not visit their hospital and
    consulted several other doctors. They
    have specifically denied that they
    have advised for second operation of
    the appellant. Because the patient did
    not visit after 21.9.1992, therefore,
    they are not responsible for any
    complications developed later on. They
    have also drawn our attention to the
    certificate given by Dr. B. Das of
    Bhopal dated 26.6.1983 which read thus
    :

     

    “Smt. Beti Bai Saxena 60 yrs. F
    BPL.

     

    Operated on 16.4.1993 for Discharging
    sinus from Gluteal region Rx – Over
    Gv. TR

     

    Wound has healed following surgery a
    foreign body (mopping gauze piece
    about 5″ * 5″ with a tag in
    one corner) was removed from inside
    the muscle mass of Glutei. Wound has
    completely healed following removal of
    F.B. Needs no treatment.

      

    Signed

    (Dr. B. Das)

    26.6.1993.”

       

    5. In the affidavit Dr. Das has stated
    that when he performed operation on
    16.4.1993 he found a Moping Gauze
    piece of 5″ * 5″ under Skin
    Fat and Muscles. The plea of the
    respondents that the Moping Gauze
    piece was found between Fat and Muscle
    is not corroborated by Dr. Das. The
    District Forum while analysing the
    affidavit of Dr. B. Das has given a
    finding that the gauze piece was found
    between skin and fat.

      

    6. We have gone through the evidence
    and find that at the time of giving
    discharge certificate, Dr. Das has
    mentioned that the Mopping Gauze piece
    was found inside in the muscle mass of
    Glutei and in his affidavit he has
    also stated that the Mopping Gauze
    piece was found below skin, fat and
    muscle, while, the District Forum has
    mentioned that the gauze piece was
    found between skin and fat which is
    not corroborated with the affidavit of
    Dr. B. Das, therefore, this finding of
    the District Forum is erroneous. Dr.
    Das has further stated in his
    affidavit that if any foreign body
    remains inside the body then it forms
    a sinus and the wound does not heal up
    and pus remains coming out from that
    wound. In the affidavit, Dr. Das has
    stated that when he examined the
    patient, he found that at the first
    place of operation, pus was oozing and
    when he removed the foreign body i.e.
    gauze piece the wound was cured and
    the patient was alright.

      

    7. From analysis of the complaint and
    affidavits adducing evidence, it is
    clear that the appellant was
    continuously suffering from pain and
    the pus was oozing out from the wound
    that means a sinus was formed and the
    pus was coming out from the wound. The
    affidavit of Dr. Das makes clear that
    the gauze was below the muscle,
    therefore, as per opinion of Dr. Das
    the pus was coming out from the wound.
    In the case, therefore, on the basis
    of affidavit of Dr. Das, the usual
    inference is that there was some
    negligence at the time of first
    operation which resulted forming of
    hoemotoma and pus oozed out from the
    place of first operation, therefore,
    the finding of the District Forum is
    erroneous and cannot be sustained.

      

    8. True, the medical negligence cannot
    be attributed if a doctor was followed
    the discipline and the ethics provided
    in Medical Books and if the doctor has
    acted with reasonable degree of skill
    and care, then he cannot be said to be
    negligent. but in the instant case, we
    find that so far as the operation part
    is concerned, doctor has performed
    operation as per medical norms and
    ethics but they have not taken proper
    care while closing the operated area
    and left a mopping gauze piece inside
    the wound. Therefore, this is a case
    of medical negligence.

      

    9. To conclude, we find that the
    appellant has proved by the opinion of
    Medical Expert Dr. B. Das, who was
    Head of the Department of Orthopaedic
    in the Medical Colleges that the
    respondents were negligent while
    closing the wound and they left gauze
    piece inside the wound and, therefore,
    they are responsible for deficiency in
    service. We, therefore, find that due
    to this negligent act of the
    respondents, the appellant was
    constrained to approach other Doctors,
    Dr. Jamdar and Dr. B. Das and she was
    required to pay additional fee of Rs.
    24,752.85 paise and Rs. 15,415.30
    paise in all total of Rs. 40,168.15
    paise.

      

    10. So far as fees paid to the
    respondents is concerned, it was for
    the hospital charges and the operation
    performed by the respondents.
    Therefore, we do not take that fees
    into consideration. We, therefore, are
    of the opinion that the respondents
    shall pay jointly or severally amount
    of Rs. 40,168.15 paise towards the
    expenses incurred in treatment and
    compensation of Rs. 25,000/- for
    mental and physical agony and Rs.
    3,000.00 as cost of the proceedings
    throughout, within a period of two
    months from the date of receipt of
    certified copy of the order failing
    which the total amount of Rs.
    68,168.15 paise shall carry interest
    at the rate of 9% per annum from the
    date of this order.

      

    11. In view of the above , the appeal
    is allowed. The order of the District
    Forum is set aside. A copy of this
    order be conveyed to the parties and a
    copy be sent to the District Forum
    along with the record of the case.

      

    Appeal allowed.

         

  • NADIYA
    v. PROPRIETOR, FATHIMA HOSPITALNADIYA
    v. PROPRIETOR, FATHIMA HOSPITAL


    III (2001) CPJ 572

       

    (i) Consumer Protection Act, 1986 -
    Section 2(1)(g) – Medical Negligence -
    Deficiency in Service – Negligence in
    Surgery – Compensation – Complainant
    got admitted for surgery for
    increasing height – Surgery conducted
    – Ring fixator fixed – Left leg
    remained shorter by 3/2 inch – A
    healthy girl of 17 years, needs the
    aid of walker after the surgery -
    Burden on opposite parties to
    substantiate their case that
    complication developed later on -
    Burden not discharged by filing
    affidavit – Negligence and deficiency
    in service established – Complainant
    entitled to compensation.

       

    (ii) Vicarious Liability – Doctor
    employed in the hospital – Hospital
    vicariously liable for the tortious
    acts of employees during the course of
    employment.  (Para 12)

       

    (iii) Insurance – Professional
    indemnity policy for doctors and
    medical practitioners – Insurance
    Company liable to indemnify the
    hospital to the extent of amount
    covered by the policy.  
    (Para 12)

       

    Result : Complaint allowed.

      


    ORDER


       

    Mr. Justice L. Manoharan, President -
    Complainant, a minor represented by
    her father seeks for a direction to
    pay compensation on the allegation of
    negligence committed in the surgery
    conducted by the second opposite
    party, doctor who was then working in
    the first opposite party hospital.

       

    2. The allegation in brief is that the
    complainant aged 15 years and a
    student of VIII Standard had a height
    of 135 cm. which for her age since was
    felt to be less, attracted by the
    advertisement Exbt. P19 approached the
    first opposite party hospital in July,
    1996 where the second opposite party
    assured her increase in the height of
    10 cms. in six months by surgery and
    the charge for the same was fixed at
    Rs. 32,000/-. In view of the same she
    got herself admitted on 24.7.1998 in
    the first opposite party hospital and
    her right leg below the knee was
    operated on 25.6.1996 and the left leg
    below the knee was operated on
    1.8.1996. A ring fixator was fixed on
    the legs; the one on the right leg was
    adjusted from 2.8.1996, and one on the
    other was adjusted from 10.8.1996, the
    same had to be adjusted every six
    hours. The staff of the hospital was
    not trained for the said purpose and
    the father of the complainant was
    instructed to attend the same as per
    the instruction of the doctor, and he
    was attending the same. The fact that
    the nurse and staff were not equipped
    to attend the same itself would amount
    to negligence. On 16.9.1996 she was
    discharged with instruction that every
    15 days X-ray has to be taken and has
    to be consulted. At the time of
    discharge the length of the two legs
    were not the same and hence she could
    not walk. By September, 1996 pain
    increased and when she met the second
    opposite party she informed him as to
    the same but he consoled her stating
    that the ring fixator adjustment must
    be continued. By the same the feet as
    well as the leg below the knee got
    curved. Later when she met him in the
    same month he instructed her to stop
    the adjustment of the ring fixator o
    nthe left leg and to continue with
    respect to the right leg. Afterwards
    she was required to stop adjustment of
    the ring fixator for the right leg
    also and in April, 1997 the ring
    fixators were removed and plaster was
    applied. But the left leg was short by
    3/2 inches, the second opposite party
    said that the same was due to the
    curve in the lower part of the leg. As
    per the instruction of the second
    opposite party physiotherapy was being
    continued. On 17.9.1997 operation was
    conducted on the left foot and on
    1.11.1997 skin grafting was also
    conducted. Though the difference in
    the length of the leg was brought to
    the notice of the second opposite
    party he got wild and instructed to
    continue of the physiotherapy. A
    physiotherapist was engaged to attend
    the physiotherapy at her home and the
    same was intimated to the second
    opposite party. Since the length of
    the left leg is shorter, she leans on
    the left; there was also deformity for
    the foot. After the operation on
    25.7.1996 she was bed-ridden till
    March, 1998. A home nurse had to be
    appointed. Every 15 days X-ray had to
    be taken and the second opposite party
    was being consulted. The deformity and
    the disability of the complainant is
    on account of the negligence in
    conducting the aforesaid surgery. She
    had to incur an expense of Rs.
    2,43,000/- for the operation and
    hospital expenses. Apart from the
    same, she has to incur other expenses
    for future treatment also, therefore,
    the opposite parties are liable to
    compensate the complainant for the
    said injury caused to her due to their
    negligence.

        

    3. In the version by the first
    opposite party it is contended, the
    hospital is a reputed one having
    several qualified doctors in different
    specialities and also has qualified
    staff. The second opposite party is a
    qualified doctor and the deficiency in
    service alleged by the complainant is
    not true or correct; but admits that
    the complainant was treated in the
    said hospital, the treatment given to
    her is borne out by the hospital
    records and she was given the best
    possible treatment. She has no cause
    of action against this opposite party.
    The nurses attached to the hospital
    are well-qualified and well-trained.
    The allegation of negligence is
    denied.

       

    4. In the version by the second
    opposite party he contended that he
    has taken a professional indemnity
    policy for doctors and medical
    practitioners from the New India
    Assurance Company Limited having their
    Head Office at M.G. Road, Bombay. The
    policy No. is 46721200 01833.
    Therefore, the said Insurance Company
    also is a necessary party to the
    proceedings. The fact that the
    complainant approached the hospital
    for surgery for increasing her height
    is not disputed. She has the ‘adoloscentidiopathic
    scolosis’ of the dorso lumber spine.
    The cause of her present position is
    the said condition, the same could not
    be noticed initially and the said
    condition is not caused by surgery.
    The present condition of the
    complainant cannot be attributed to
    the surgery performed by him, the
    father and daughter were informed as
    to the complications inherent in the
    said operation. They were also
    informed as to the nature of
    co-operation required from the patient
    for the success of the surgery. The
    cortiocotomy surgery with external
    fixator on the complainant’s right leg
    was done on 25.7.1996. The method of
    adjusting ring fixator has explained,
    the staff is qualified to adjust the
    ring fixator. There are trained nurses
    in the hospital. After due surgery the
    complainant was discharged on
    16.8.1996 with an advice to take X-ray
    and report back once in 15 days. In
    September, 1996 it was found that the
    complainant was not adhering to the
    instruction as to the stretching
    exercise; during that period though
    the bone was lengthening the muscles
    did not adequately stretch on account
    of the failure on the part of the
    complainant to attend the exercise as
    instructed. The X-ray showed, there
    was lengthening of both bones of the
    right leg. But there was contractures
    of the calf muscles, that was only due
    to inadequate stretching of the right
    calf muscles while bones continued to
    be lengthening. She and her father
    were told to do vigorous stretching
    exercise of the calf muscles. She was
    told as to the cause for her
    deformities of the feet, and if
    further lengthening of both the legs
    was not stopped, she would need
    corrective surgery. But she was
    adament and wanted the lengthening
    process to continue and was prepared
    for the soft tissue correction surgery
    later. Later it was decided to further
    lengthening of the left leg to achieve
    equality in the length of both legs.
    The length of both the legs of the
    complainant was found equal on
    clinical examination as well as
    radiological examination. It is
    incorrect to say that her left leg was
    shorter by 3/2 inch by the end of
    November, 1997 she could walk. On
    11.5.1998, the opposite party
    explained to the complainant, that the
    length of her both legs is equal, even
    then she was not convinced. On a
    detailed examination on 8.1.1998 it
    was found that she was developing a
    deformity of the ‘spine’ called “Adoloscentidopathic
    scolosis” of Dorso Lumber Spine
    which caused lifting up of the left
    side of the pelvis and along with it
    the whole left lower leg. Therefore,
    while standing, the level of the
    pelvis, instead of being horizontal
    became oblique with the left lower
    limb going up which produced an
    apparent and not true shortening of
    the left lower limb. He denied the
    allegation, there was deficiency in
    service. He also disputed the quantum
    of compensation claimed. He wanted
    dismissal of the complaint.

       

    5. Complainant filed affidavit and
    offered for cross-examination, she was
    examined as P.W.1. Complainant
    produced Exbts. P1 to P20. On behalf
    of the opposite parties no affidavit
    was filed and none was examined. The
    points that would arise for
    consideration are :

       

    (1) Is the complainant maintainable ?
    And whether the negligence and
    deficiency in service alleged is true
    ?

    (2) Waht, if any, is the compensation
    to which the complainant is entitled
    to ?

    (3) Relief and costs ?

      

    Point No. 1

      

    It is settled position that in a
    complaint which alleges negligence on
    the part of a Medical Practitioner the
    burden of proof is on the complainant.
    The fact that the complainant got
    herself admitted in the first opposite
    party hospital on 24.7.1996 for
    improving her height is not in
    dispute, surgery was conducted by the
    second opposite party on 25.7.1996 on
    the lower part of the left leg and
    conducted surgery on 1.8.1996 on the
    lower part of right leg also is not in
    dispute. Ring fixator was fixed on the
    legs, the one on the left leg was
    adjusted from 2.8.1996 and the one on
    the right leg was adjusted from
    10.8.1996 every six hours is also not
    in dispute. Whereas the complainant
    would allege that at her discharge on
    16.8.1996 with the instruction that
    X-ray should be taken and must report
    back after 15 days, both legs were not
    of the same length, the second
    opposite party would not admit the
    same. The affidavit and the evidence
    of P.W. 1 would show that she was
    required to continue to the adjustment
    of the ring fixator, later at stages
    she was asked to stop the adjustment.
    What she would swear is, because of
    the defect in the operation and
    treatment, her left leg remained
    shorter by 3/2 inch than the right leg
    and hence she leans on the left. But
    the second opposite party would
    contend that the said condition was
    because of the failure of the
    complainant to adhere to the
    instructions, and also would maintain
    that the same was due to the
    complication ‘Adoloscent idiopathic
    scolosis of the dorso lumbar spine’.

       

    6. Now the question for consideration
    is whether the materials placed by the
    complainant along with her evidence
    would discharge her burden as to the
    alleged negligence. The probative
    value of the evidence tendered by the
    complainant by affidavit, as P.W. 1
    and the documents produced, Exbt. P1
    to Exbt. P20 has to considered in the
    context of the attending circumstances
    and the nature of the contentions
    raised. One important aspect to be
    kept in view is, complainant was 17
    years at the time when she got
    admitted in first opposite party
    hospital. Her height was 136 cms.
    Admittedly she consulted not for
    treatment of any illness or ailment.
    According to the complainant she did
    not suffer from any ailment and she
    approached the opposite parties for
    improving her height attracted by Exbt.
    P19 advertisement. Exbt. P19
    advertisement in the newspaper
    declares that a ‘dwarf could became
    Amitabh Bachhan of tomorrow’. It
    states that by the Illizorove method
    the height can be increased by one
    inch within a period of 25 days and it
    mentions the second opposite party as
    the surgeon. This advertisement is not
    denied. The second opposite party
    would plead ignorance of such an
    advertisement; the first opposite
    party does not deny it. What is
    important is, the occasion for the
    complainant to solicit the service of
    the opposite parties was the said
    advertisement. She underwent the said
    cosmetic surgery. One of the aspects
    to be seen in this connection is
    whether there was informed consent for
    the said operation. The second aspect
    would be whether there was actual
    negligence in conducting the surgery
    resulting injury to the complainant.
    As regards the question whether there
    was informed consent, the very
    allegation in para 3 of the complaint
    would support a conclusion that the
    second opposite party informed the
    complainant and her father as to the
    benefits of such surgery and that the
    achievements. P.W. 1 admitted in the
    cross examination that on 24.7.1998
    she signed a paper giving consent to
    the operation. when the said testimony
    of the complainant is understood in
    the context of para 3 of the complaint
    it is probable that necessary consent
    was given.

      

    Then the question for consideration
    whether there was negligence in
    conducting the said operation. In
    appreciating the case of the
    complainant in this regard certain
    factors have to be kept in view;
    particularly her condition when she
    consulted the opposite parties and her
    condition after the surgery. As she
    was a healthy girl of 17 having no
    complication and there being no
    dispute that she came walking and it
    was only a cosmetic surgery just to
    improve her height, at that stage
    there is no case that she had any
    ailment. Exbt. P1 discharge summary
    from 24.7.1996 to 16.8.1996 does not
    mention any particular ailment. Thus,
    from the evidence the complainant was
    a young girl of 17, healthy and had no
    complaint when she approached the
    first opposite party hospital and
    consulted the second opposite party
    about surgery, except that she felt
    that her height has to be improved.
    She underwent cosmetic surgery with
    ring fixators.

        

    7. Having regard to the said details
    it would be necessary to see her
    present condition in the matter of
    judging as to whether she has
    discharged the burden of proof. As has
    noticed, she was healthy and the
    surgery which she underwent was not
    for any complaint or on account of her
    suffering from any illness or
    malfunctioning of the system. But at
    trial she required to be helped to
    reach the witness-box and she had to
    be permitted to sit while giving
    evidence. In the affidavit filed by
    the complainant it is averred that for
    correcting the deformity after the
    surgery she had to consult Dr.
    Gopalkrishnan of Appolo Hospital,
    Madras in December, 1998 and she was
    admitted on 2.12.1998 in Appolo
    Hospital and had to undergo surgery on
    3.12.1998. The said fact is averred in
    para 36 of the affidavit, the reason
    for approaching the Appolo Hospital is
    also averred in para 35 of the
    affidavit. Exbt. P9 is the discharge
    summary of the Appolo Hospital which
    is proved by the affidavit of the
    complainant, the diagnosis mentioned
    therein, left tibial varus, intorsion
    deformity and left foot equino varus
    deformity. On the date of discharge
    her condition is stated to be “NWB
    left side with walker” Exbt. P9
    shows that she has to have a walker on
    the left side, in the affidavit also
    she says, the deformity of the left
    leg reduced and movement was restored.
    Though she was cross-examined by first
    and second opposite parties there is
    no effective cross-examination on the
    aforesaid aspects, averred in the
    affidavit. Thus what is to be noted
    is, a healthy girl after the surgery
    needs the aid of a walker, she had to
    lean on the left.

       

    8. Another aspect to be noted in this
    connection is, the nature of the
    defence taken by the opposite party
    particularly the second opposite
    party. As has been noted whereas the
    complainant would maintain that she
    followed the instructions and
    performed the exercise as was
    instructed and ultimately
    physiotherapist too was engaged still
    said deformity on the performance of
    the surgery persists. One defence of
    the opposite party is, she did not
    comply with the instructions; at the
    same time he seeks to maintain that it
    is due to “asoloscent idiopathic
    scolocis of the dorso lumber
    spine”. Exbt. P9 does not mention
    such a complication; Exbt. P3 the
    out-patient record has an entry on
    8.1.1998 “DL. Spine scross of
    lumber region to the left.” Now
    it is necessary to note, whereas the
    complainant amintained her left leg is
    short by 3/2 inch, the second opposite
    party would deny the same and seeks to
    maintain that both the legs have same
    length. Incidently Exbt. P8 photograph
    with the negative proved by affidavit
    shows the features of the leg, it
    shows the deformity. In paragraph 15
    of the second opposite party’s version
    it is contended, on 11.5.1998, the
    opposite party showed the complainant
    that on Rongerograms both legs were of
    equal length. But she was not
    convinced, the second opposite party
    contends “on detailed
    examination, the opposite party found
    on 8.1.1998 that she was developing a
    deformity of the spine called ‘Adoloscent
    idopathic scolosis’ of Dorso Lumber
    Spine which in ordinary words is a
    curvature of hte spine caused lifting
    up of the left side of the pelvis and
    along with it the whole left lower
    leg. So, while standing, the left of
    pelvis, instead of being normal
    horizontal became oblique with the
    left lower limb also went up. This
    produced an apparent and not true
    shortening of the left lower
    limb”. This pleading would go
    against his case that the deformity
    came into existence because of the
    negligence of the complainant in not
    adhering to the instructions. The
    effect of the same is also described
    in para 3 of the version he says as
    regards the said condition “Cause
    of this is not known and occurs
    between 10 years and skeletial
    maturity”. If that is the
    position, as has been noticed his case
    that the complication arose because of
    failure to adhere to the instructions
    cannot be supported. Thus in the very
    case of the opposite party there is
    inconsistency. It is significant, the
    second opposite party admits when the
    complainant stands her left limb would
    not touch the ground because it would
    be lifted. The cause he says is, a
    complication which as noticed is not
    disclosed till 8.1.1998. The
    complainant as P.W. 1 denied the said
    suggestion saying that she has no such
    disease or complication.

        

    9. The burden on a complainant to
    establish negligence has to be judged
    on the facts of each case. In this
    case the complainant filed an
    affidavit detailing her case as well
    as offered for cross-examination, that
    she had to go to Appolo Hospital is
    not challenged i nthe
    cross-examination. None of the
    opposite parties has tendered any
    evidence either oral or documentary
    exceptproducing the case file/ It is
    true that the complainant moved I.A.
    779/2000 for the issue of a Commission
    for examining Dr. Gopalkrishnan, the
    said application was allowed, but the
    complainant filed another application
    later saying that for the reasons
    averred in the affidavit the order
    appointing the Commissioner has to be
    recalled. The reason averred in the
    affidavit is when the doctor was
    requested to give evidence he said due
    to certain subsequent events he is not
    in a position to give evidence in a
    case against a doctor. Of course the
    averment by the petitioner by itself
    need not render the examination
    impossible as in such circumstance he
    could have taken steps for the issue
    of summons to the doctor for his
    examination before this Commission as
    a witness. The question is whether the
    failure to examine the said doctor, in
    the facts and circumstances of this
    case would adversely affect the case
    of the complainant has to be judged in
    the context of the nature of the case
    pleaded by the opposite party, the
    affidavit and evidence of P.W. 1 along
    with the materials already produced.
    As has already been noted, the
    condition of the complainant when she
    consulted the 2nd opposite party, she
    was healthy without any complaint, her
    position after the surgery at
    discharge from first opposite party
    hospital along with the said evidence
    would show the burden is shifted to
    the opposite parties to substantiate
    their case that the lifting of the
    left limb was due to a complication
    which developed later. Atleast the
    second opposite party could have filed
    an affidavit and offered for
    cross-examination. No reason whatever
    is assigned as to why any one of them
    did not file affidavit. In such
    circumstance with due regard to the
    nature of the case pleaded by the
    second opposite party, and the
    evidence tendered by the complainant,
    unless the opposite parties
    substantiate, that deformity is the
    result of the condition pleaded by
    them, the case of the complainant in
    this regard ahs to be accepted. In
    this connection it has to be noted,
    though it was contended that when the
    second opposite party wanted to stop
    the process at a particular stage the
    complainant insisted to continue the
    process for getting the desired
    height. This is not even put to P.W. 1
    when she was examined. These are
    matters that could have been proved by
    filing affidavit and offering for
    cross-examination, that is not done.
    Since the exhibits are proved by
    affidavit and there being no challenge
    as regards the same the complainant is
    entitled to rely on them., Exbt. P1
    series discharge summmaries, P2
    series, P4 series, P5 series bills and
    Exbt. P6 series prescriptions along
    with Exbt. P3 series. Case records of
    the complainant 1st opposite party
    hospital support and corroborate the
    evidence of P.W. 1 and her affidavit
    as to her treatment and details of 1st
    opposite party hospital. Exbt. P9
    discharge summary along with P10
    series, P11 series, P12 series, P13
    series and P16 series bills of the
    Appolo Hospital prove that she had to
    undergo surgery and treatment there.
    When such is the situation it has to
    be found that the case pleaded by the
    opposite party that because of “Adoloscent
    idiopathic scolosis of the dorso
    lumber spine” the present
    deformity developed is not
    substantiated. Then the case of the
    complainant that there is negligence
    and deficiency of service should be
    accepted. This point, therefore, found
    in favour of the complainant.

      

    Point Nos. 2 and 3

      

    The complainant has produced Exbts. P2
    series, P4 series and P5 series bills
    evidencing payment to the first
    opposite party hospital. These bills
    take in an amount of Rs. 1,94,122/-.
    These are bare expenses in the first
    opposite party hospital towards
    medicine, etc. The claim in the
    complaint is towards medical expenses
    is Rs. 2,43,000/- and for future
    treatment, mental agony, etc. the
    further claim is Rs. 15 lakhs. Thus
    the total claim is Rs. 17,43,000/-.
    The bills and medical expenses and the
    other charges of the hospital alone
    cannot be the expenditure, there could
    be other incidental expenses also. In
    measuring the compensation the actual
    expenses which she had to meet at the
    first opposite party hospital and also
    the further expenditure she had to
    meet, the subsequent charges at the
    Appolo Hospital have to be kept in
    view. Apart from the same, naturally
    she should have undergone physical
    pain as well as agony; a young girl
    becoming afflicted with such deformity
    will certainly be agonised and
    desperate. The expenditure at the
    Appolo Hospital is sought to be
    established by Exbt. P10 series, P11
    series, P12 series, P13 series and P16
    series bills which come to more than
    Rs. 2,00,000/- (Rs. two lakhs). Apart
    from the same she has to meet other
    expenditure also as seen from Exbt. P6
    series, P14 series, P17 series, etc.
    Having regard to the aforesaid
    expenditure towards the hospital
    expenses, we consider that towards
    mental agaony and medical expenses the
    complainant is eligible for a total
    compensation of rs. 5,00,000/- (Rs.
    five lakhs).

        

    10. Now the liability to pay the said
    amount has also to be gone into
    particularly in the context of the
    submission by the learned Counsel for
    the first opposite party that, if at
    all, there is any liability that
    should be only for the second opposite
    party, doctor. This is a tortious
    liability; admittedly, at the relevant
    period the second opposite party,
    doctor was employed in the first
    opposite party hospital. Therefore,
    the first opposite party is cariously
    liable for the tortious acts of his
    employee during the course of his
    employment. But one important aspect
    to be noted is, the second opposite
    party in para 2 of the version stated
    that he has taken a professional
    indemnity policy for doctors and
    medical practitioner during the
    relevant period from the New India
    Assurance Company Limited and that the
    said party has to be impleaded.
    Accordingly the complainant moved a
    petition for impleading the said party
    ‘New India Assurance Company Limited’
    and was impleaded as the 3rd opposite
    party as per order on I.A. 983/1999.
    The 3rd opposite party though was
    served remained absent and was set ex-parte.
    Therefore, so far as the liability of
    the second opposite party doctor is
    concerned the 3rd opposite party has
    to indemnify to the extent of the
    insured amount. The second opposite
    party does not state for what amount
    he took the policy or the extent of
    the insurance cover. The 3rd opposite
    party is ex-parte. The 3rd opposite
    party cannot be absolved from the
    liability to the extent of the policy
    amount, the 3rd opposite party will be
    liable to indemnify the second
    opposite party to the extent of the
    amount covered by the policy. In the
    circumstance the complainant shall be
    entitled to her costs which we fix at
    rs. 2,000/-. Points found accordingly.

       

    11. In the result opposite parties 1
    and 2 are directed to pay Rs.
    5,00,000/- (Rs. five lakhs) to the
    complainant; the third opposite party
    is liable to indemnify the second
    opposite party to the extent of the
    amount covered by the policy. The said
    amount shall be paid as above within
    three months of the receipt of the
    copy of this order failing which the
    said amount will bear interest at 14%
    from the date of expiry of the said
    three months till payment or recovery.
    The complainant shall be entitled to
    her costs of Rs. 2,000/-.

      

    Complaint allowed.

    III (2001) CPJ 572

       

    (i) Consumer Protection Act, 1986 -
    Section 2(1)(g) – Medical Negligence -
    Deficiency in Service – Negligence in
    Surgery – Compensation – Complainant
    got admitted for surgery for
    increasing height – Surgery conducted
    – Ring fixator fixed – Left leg
    remained shorter by 3/2 inch – A
    healthy girl of 17 years, needs the
    aid of walker after the surgery -
    Burden on opposite parties to
    substantiate their case that
    complication developed later on -
    Burden not discharged by filing
    affidavit – Negligence and deficiency
    in service established – Complainant
    entitled to compensation.

       

    (ii) Vicarious Liability – Doctor
    employed in the hospital – Hospital
    vicariously liable for the tortious
    acts of employees during the course of
    employment.  (Para 12)

       

    (iii) Insurance – Professional
    indemnity policy for doctors and
    medical practitioners – Insurance
    Company liable to indemnify the
    hospital to the extent of amount
    covered by the policy.  
    (Para 12)

       

    Result : Complaint allowed.

      

    ORDER

       

    Mr. Justice L. Manoharan, President -
    Complainant, a minor represented by
    her father seeks for a direction to
    pay compensation on the allegation of
    negligence committed in the surgery
    conducted by the second opposite
    party, doctor who was then working in
    the first opposite party hospital.

       

    2. The allegation in brief is that the
    complainant aged 15 years and a
    student of VIII Standard had a height
    of 135 cm. which for her age since was
    felt to be less, attracted by the
    advertisement Exbt. P19 approached the
    first opposite party hospital in July,
    1996 where the second opposite party
    assured her increase in the height of
    10 cms. in six months by surgery and
    the charge for the same was fixed at
    Rs. 32,000/-. In view of the same she
    got herself admitted on 24.7.1998 in
    the first opposite party hospital and
    her right leg below the knee was
    operated on 25.6.1996 and the left leg
    below the knee was operated on
    1.8.1996. A ring fixator was fixed on
    the legs; the one on the right leg was
    adjusted from 2.8.1996, and one on the
    other was adjusted from 10.8.1996, the
    same had to be adjusted every six
    hours. The staff of the hospital was
    not trained for the said purpose and
    the father of the complainant was
    instructed to attend the same as per
    the instruction of the doctor, and he
    was attending the same. The fact that
    the nurse and staff were not equipped
    to attend the same itself would amount
    to negligence. On 16.9.1996 she was
    discharged with instruction that every
    15 days X-ray has to be taken and has
    to be consulted. At the time of
    discharge the length of the two legs
    were not the same and hence she could
    not walk. By September, 1996 pain
    increased and when she met the second
    opposite party she informed him as to
    the same but he consoled her stating
    that the ring fixator adjustment must
    be continued. By the same the feet as
    well as the leg below the knee got
    curved. Later when she met him in the
    same month he instructed her to stop
    the adjustment of the ring fixator o
    nthe left leg and to continue with
    respect to the right leg. Afterwards
    she was required to stop adjustment of
    the ring fixator for the right leg
    also and in April, 1997 the ring
    fixators were removed and plaster was
    applied. But the left leg was short by
    3/2 inches, the second opposite party
    said that the same was due to the
    curve in the lower part of the leg. As
    per the instruction of the second
    opposite party physiotherapy was being
    continued. On 17.9.1997 operation was
    conducted on the left foot and on
    1.11.1997 skin grafting was also
    conducted. Though the difference in
    the length of the leg was brought to
    the notice of the second opposite
    party he got wild and instructed to
    continue of the physiotherapy. A
    physiotherapist was engaged to attend
    the physiotherapy at her home and the
    same was intimated to the second
    opposite party. Since the length of
    the left leg is shorter, she leans on
    the left; there was also deformity for
    the foot. After the operation on
    25.7.1996 she was bed-ridden till
    March, 1998. A home nurse had to be
    appointed. Every 15 days X-ray had to
    be taken and the second opposite party
    was being consulted. The deformity and
    the disability of the complainant is
    on account of the negligence in
    conducting the aforesaid surgery. She
    had to incur an expense of Rs.
    2,43,000/- for the operation and
    hospital expenses. Apart from the
    same, she has to incur other expenses
    for future treatment also, therefore,
    the opposite parties are liable to
    compensate the complainant for the
    said injury caused to her due to their
    negligence.

        

    3. In the version by the first
    opposite party it is contended, the
    hospital is a reputed one having
    several qualified doctors in different
    specialities and also has qualified
    staff. The second opposite party is a
    qualified doctor and the deficiency in
    service alleged by the complainant is
    not true or correct; but admits that
    the complainant was treated in the
    said hospital, the treatment given to
    her is borne out by the hospital
    records and she was given the best
    possible treatment. She has no cause
    of action against this opposite party.
    The nurses attached to the hospital
    are well-qualified and well-trained.
    The allegation of negligence is
    denied.

       

    4. In the version by the second
    opposite party he contended that he
    has taken a professional indemnity
    policy for doctors and medical
    practitioners from the New India
    Assurance Company Limited having their
    Head Office at M.G. Road, Bombay. The
    policy No. is 46721200 01833.
    Therefore, the said Insurance Company
    also is a necessary party to the
    proceedings. The fact that the
    complainant approached the hospital
    for surgery for increasing her height
    is not disputed. She has the ‘adoloscentidiopathic
    scolosis’ of the dorso lumber spine.
    The cause of her present position is
    the said condition, the same could not
    be noticed initially and the said
    condition is not caused by surgery.
    The present condition of the
    complainant cannot be attributed to
    the surgery performed by him, the
    father and daughter were informed as
    to the complications inherent in the
    said operation. They were also
    informed as to the nature of
    co-operation required from the patient
    for the success of the surgery. The
    cortiocotomy surgery with external
    fixator on the complainant’s right leg
    was done on 25.7.1996. The method of
    adjusting ring fixator has explained,
    the staff is qualified to adjust the
    ring fixator. There are trained nurses
    in the hospital. After due surgery the
    complainant was discharged on
    16.8.1996 with an advice to take X-ray
    and report back once in 15 days. In
    September, 1996 it was found that the
    complainant was not adhering to the
    instruction as to the stretching
    exercise; during that period though
    the bone was lengthening the muscles
    did not adequately stretch on account
    of the failure on the part of the
    complainant to attend the exercise as
    instructed. The X-ray showed, there
    was lengthening of both bones of the
    right leg. But there was contractures
    of the calf muscles, that was only due
    to inadequate stretching of the right
    calf muscles while bones continued to
    be lengthening. She and her father
    were told to do vigorous stretching
    exercise of the calf muscles. She was
    told as to the cause for her
    deformities of the feet, and if
    further lengthening of both the legs
    was not stopped, she would need
    corrective surgery. But she was
    adament and wanted the lengthening
    process to continue and was prepared
    for the soft tissue correction surgery
    later. Later it was decided to further
    lengthening of the left leg to achieve
    equality in the length of both legs.
    The length of both the legs of the
    complainant was found equal on
    clinical examination as well as
    radiological examination. It is
    incorrect to say that her left leg was
    shorter by 3/2 inch by the end of
    November, 1997 she could walk. On
    11.5.1998, the opposite party
    explained to the complainant, that the
    length of her both legs is equal, even
    then she was not convinced. On a
    detailed examination on 8.1.1998 it
    was found that she was developing a
    deformity of the ‘spine’ called “Adoloscentidopathic
    scolosis” of Dorso Lumber Spine
    which caused lifting up of the left
    side of the pelvis and along with it
    the whole left lower leg. Therefore,
    while standing, the level of the
    pelvis, instead of being horizontal
    became oblique with the left lower
    limb going up which produced an
    apparent and not true shortening of
    the left lower limb. He denied the
    allegation, there was deficiency in
    service. He also disputed the quantum
    of compensation claimed. He wanted
    dismissal of the complaint.

       

    5. Complainant filed affidavit and
    offered for cross-examination, she was
    examined as P.W.1. Complainant
    produced Exbts. P1 to P20. On behalf
    of the opposite parties no affidavit
    was filed and none was examined. The
    points that would arise for
    consideration are :

       

    (1) Is the complainant maintainable ?
    And whether the negligence and
    deficiency in service alleged is true
    ?

    (2) Waht, if any, is the compensation
    to which the complainant is entitled
    to ?

    (3) Relief and costs ?

      


    Point No. 1


      

    It is settled position that in a
    complaint which alleges negligence on
    the part of a Medical Practitioner the
    burden of proof is on the complainant.
    The fact that the complainant got
    herself admitted in the first opposite
    party hospital on 24.7.1996 for
    improving her height is not in
    dispute, surgery was conducted by the
    second opposite party on 25.7.1996 on
    the lower part of the left leg and
    conducted surgery on 1.8.1996 on the
    lower part of right leg also is not in
    dispute. Ring fixator was fixed on the
    legs, the one on the left leg was
    adjusted from 2.8.1996 and the one on
    the right leg was adjusted from
    10.8.1996 every six hours is also not
    in dispute. Whereas the complainant
    would allege that at her discharge on
    16.8.1996 with the instruction that
    X-ray should be taken and must report
    back after 15 days, both legs were not
    of the same length, the second
    opposite party would not admit the
    same. The affidavit and the evidence
    of P.W. 1 would show that she was
    required to continue to the adjustment
    of the ring fixator, later at stages
    she was asked to stop the adjustment.
    What she would swear is, because of
    the defect in the operation and
    treatment, her left leg remained
    shorter by 3/2 inch than the right leg
    and hence she leans on the left. But
    the second opposite party would
    contend that the said condition was
    because of the failure of the
    complainant to adhere to the
    instructions, and also would maintain
    that the same was due to the
    complication ‘Adoloscent idiopathic
    scolosis of the dorso lumbar spine’.

       

    6. Now the question for consideration
    is whether the materials placed by the
    complainant along with her evidence
    would discharge her burden as to the
    alleged negligence. The probative
    value of the evidence tendered by the
    complainant by affidavit, as P.W. 1
    and the documents produced, Exbt. P1
    to Exbt. P20 has to considered in the
    context of the attending circumstances
    and the nature of the contentions
    raised. One important aspect to be
    kept in view is, complainant was 17
    years at the time when she got
    admitted in first opposite party
    hospital. Her height was 136 cms.
    Admittedly she consulted not for
    treatment of any illness or ailment.
    According to the complainant she did
    not suffer from any ailment and she
    approached the opposite parties for
    improving her height attracted by Exbt.
    P19 advertisement. Exbt. P19
    advertisement in the newspaper
    declares that a ‘dwarf could became
    Amitabh Bachhan of tomorrow’. It
    states that by the Illizorove method
    the height can be increased by one
    inch within a period of 25 days and it
    mentions the second opposite party as
    the surgeon. This advertisement is not
    denied. The second opposite party
    would plead ignorance of such an
    advertisement; the first opposite
    party does not deny it. What is
    important is, the occasion for the
    complainant to solicit the service of
    the opposite parties was the said
    advertisement. She underwent the said
    cosmetic surgery. One of the aspects
    to be seen in this connection is
    whether there was informed consent for
    the said operation. The second aspect
    would be whether there was actual
    negligence in conducting the surgery
    resulting injury to the complainant.
    As regards the question whether there
    was informed consent, the very
    allegation in para 3 of the complaint
    would support a conclusion that the
    second opposite party informed the
    complainant and her father as to the
    benefits of such surgery and that the
    achievements. P.W. 1 admitted in the
    cross examination that on 24.7.1998
    she signed a paper giving consent to
    the operation. when the said testimony
    of the complainant is understood in
    the context of para 3 of the complaint
    it is probable that necessary consent
    was given.

      

    Then the question for consideration
    whether there was negligence in
    conducting the said operation. In
    appreciating the case of the
    complainant in this regard certain
    factors have to be kept in view;
    particularly her condition when she
    consulted the opposite parties and her
    condition after the surgery. As she
    was a healthy girl of 17 having no
    complication and there being no
    dispute that she came walking and it
    was only a cosmetic surgery just to
    improve her height, at that stage
    there is no case that she had any
    ailment. Exbt. P1 discharge summary
    from 24.7.1996 to 16.8.1996 does not
    mention any particular ailment. Thus,
    from the evidence the complainant was
    a young girl of 17, healthy and had no
    complaint when she approached the
    first opposite party hospital and
    consulted the second opposite party
    about surgery, except that she felt
    that her height has to be improved.
    She underwent cosmetic surgery with
    ring fixators.

        

    7. Having regard to the said details
    it would be necessary to see her
    present condition in the matter of
    judging as to whether she has
    discharged the burden of proof. As has
    noticed, she was healthy and the
    surgery which she underwent was not
    for any complaint or on account of her
    suffering from any illness or
    malfunctioning of the system. But at
    trial she required to be helped to
    reach the witness-box and she had to
    be permitted to sit while giving
    evidence. In the affidavit filed by
    the complainant it is averred that for
    correcting the deformity after the
    surgery she had to consult Dr.
    Gopalkrishnan of Appolo Hospital,
    Madras in December, 1998 and she was
    admitted on 2.12.1998 in Appolo
    Hospital and had to undergo surgery on
    3.12.1998. The said fact is averred in
    para 36 of the affidavit, the reason
    for approaching the Appolo Hospital is
    also averred in para 35 of the
    affidavit. Exbt. P9 is the discharge
    summary of the Appolo Hospital which
    is proved by the affidavit of the
    complainant, the diagnosis mentioned
    therein, left tibial varus, intorsion
    deformity and left foot equino varus
    deformity. On the date of discharge
    her condition is stated to be “NWB
    left side with walker” Exbt. P9
    shows that she has to have a walker on
    the left side, in the affidavit also
    she says, the deformity of the left
    leg reduced and movement was restored.
    Though she was cross-examined by first
    and second opposite parties there is
    no effective cross-examination on the
    aforesaid aspects, averred in the
    affidavit. Thus what is to be noted
    is, a healthy girl after the surgery
    needs the aid of a walker, she had to
    lean on the left.

       

    8. Another aspect to be noted in this
    connection is, the nature of the
    defence taken by the opposite party
    particularly the second opposite
    party. As has been noted whereas the
    complainant would maintain that she
    followed the instructions and
    performed the exercise as was
    instructed and ultimately
    physiotherapist too was engaged still
    said deformity on the performance of
    the surgery persists. One defence of
    the opposite party is, she did not
    comply with the instructions; at the
    same time he seeks to maintain that it
    is due to “asoloscent idiopathic
    scolocis of the dorso lumber
    spine”. Exbt. P9 does not mention
    such a complication; Exbt. P3 the
    out-patient record has an entry on
    8.1.1998 “DL. Spine scross of
    lumber region to the left.” Now
    it is necessary to note, whereas the
    complainant amintained her left leg is
    short by 3/2 inch, the second opposite
    party would deny the same and seeks to
    maintain that both the legs have same
    length. Incidently Exbt. P8 photograph
    with the negative proved by affidavit
    shows the features of the leg, it
    shows the deformity. In paragraph 15
    of the second opposite party’s version
    it is contended, on 11.5.1998, the
    opposite party showed the complainant
    that on Rongerograms both legs were of
    equal length. But she was not
    convinced, the second opposite party
    contends “on detailed
    examination, the opposite party found
    on 8.1.1998 that she was developing a
    deformity of the spine called ‘Adoloscent
    idopathic scolosis’ of Dorso Lumber
    Spine which in ordinary words is a
    curvature of hte spine caused lifting
    up of the left side of the pelvis and
    along with it the whole left lower
    leg. So, while standing, the left of
    pelvis, instead of being normal
    horizontal became oblique with the
    left lower limb also went up. This
    produced an apparent and not true
    shortening of the left lower
    limb”. This pleading would go
    against his case that the deformity
    came into existence because of the
    negligence of the complainant in not
    adhering to the instructions. The
    effect of the same is also described
    in para 3 of the version he says as
    regards the said condition “Cause
    of this is not known and occurs
    between 10 years and skeletial
    maturity”. If that is the
    position, as has been noticed his case
    that the complication arose because of
    failure to adhere to the instructions
    cannot be supported. Thus in the very
    case of the opposite party there is
    inconsistency. It is significant, the
    second opposite party admits when the
    complainant stands her left limb would
    not touch the ground because it would
    be lifted. The cause he says is, a
    complication which as noticed is not
    disclosed till 8.1.1998. The
    complainant as P.W. 1 denied the said
    suggestion saying that she has no such
    disease or complication.

        

    9. The burden on a complainant to
    establish negligence has to be judged
    on the facts of each case. In this
    case the complainant filed an
    affidavit detailing her case as well
    as offered for cross-examination, that
    she had to go to Appolo Hospital is
    not challenged i nthe
    cross-examination. None of the
    opposite parties has tendered any
    evidence either oral or documentary
    exceptproducing the case file/ It is
    true that the complainant moved I.A.
    779/2000 for the issue of a Commission
    for examining Dr. Gopalkrishnan, the
    said application was allowed, but the
    complainant filed another application
    later saying that for the reasons
    averred in the affidavit the order
    appointing the Commissioner has to be
    recalled. The reason averred in the
    affidavit is when the doctor was
    requested to give evidence he said due
    to certain subsequent events he is not
    in a position to give evidence in a
    case against a doctor. Of course the
    averment by the petitioner by itself
    need not render the examination
    impossible as in such circumstance he
    could have taken steps for the issue
    of summons to the doctor for his
    examination before this Commission as
    a witness. The question is whether the
    failure to examine the said doctor, in
    the facts and circumstances of this
    case would adversely affect the case
    of the complainant has to be judged in
    the context of the nature of the case
    pleaded by the opposite party, the
    affidavit and evidence of P.W. 1 along
    with the materials already produced.
    As has already been noted, the
    condition of the complainant when she
    consulted the 2nd opposite party, she
    was healthy without any complaint, her
    position after the surgery at
    discharge from first opposite party
    hospital along with the said evidence
    would show the burden is shifted to
    the opposite parties to substantiate
    their case that the lifting of the
    left limb was due to a complication
    which developed later. Atleast the
    second opposite party could have filed
    an affidavit and offered for
    cross-examination. No reason whatever
    is assigned as to why any one of them
    did not file affidavit. In such
    circumstance with due regard to the
    nature of the case pleaded by the
    second opposite party, and the
    evidence tendered by the complainant,
    unless the opposite parties
    substantiate, that deformity is the
    result of the condition pleaded by
    them, the case of the complainant in
    this regard ahs to be accepted. In
    this connection it has to be noted,
    though it was contended that when the
    second opposite party wanted to stop
    the process at a particular stage the
    complainant insisted to continue the
    process for getting the desired
    height. This is not even put to P.W. 1
    when she was examined. These are
    matters that could have been proved by
    filing affidavit and offering for
    cross-examination, that is not done.
    Since the exhibits are proved by
    affidavit and there being no challenge
    as regards the same the complainant is
    entitled to rely on them., Exbt. P1
    series discharge summmaries, P2
    series, P4 series, P5 series bills and
    Exbt. P6 series prescriptions along
    with Exbt. P3 series. Case records of
    the complainant 1st opposite party
    hospital support and corroborate the
    evidence of P.W. 1 and her affidavit
    as to her treatment and details of 1st
    opposite party hospital. Exbt. P9
    discharge summary along with P10
    series, P11 series, P12 series, P13
    series and P16 series bills of the
    Appolo Hospital prove that she had to
    undergo surgery and treatment there.
    When such is the situation it has to
    be found that the case pleaded by the
    opposite party that because of “Adoloscent
    idiopathic scolosis of the dorso
    lumber spine” the present
    deformity developed is not
    substantiated. Then the case of the
    complainant that there is negligence
    and deficiency of service should be
    accepted. This point, therefore, found
    in favour of the complainant.

      


    Point Nos. 2 and 3


      

    The complainant has produced Exbts. P2
    series, P4 series and P5 series bills
    evidencing payment to the first
    opposite party hospital. These bills
    take in an amount of Rs. 1,94,122/-.
    These are bare expenses in the first
    opposite party hospital towards
    medicine, etc. The claim in the
    complaint is towards medical expenses
    is Rs. 2,43,000/- and for future
    treatment, mental agony, etc. the
    further claim is Rs. 15 lakhs. Thus
    the total claim is Rs. 17,43,000/-.
    The bills and medical expenses and the
    other charges of the hospital alone
    cannot be the expenditure, there could
    be other incidental expenses also. In
    measuring the compensation the actual
    expenses which she had to meet at the
    first opposite party hospital and also
    the further expenditure she had to
    meet, the subsequent charges at the
    Appolo Hospital have to be kept in
    view. Apart from the same, naturally
    she should have undergone physical
    pain as well as agony; a young girl
    becoming afflicted with such deformity
    will certainly be agonised and
    desperate. The expenditure at the
    Appolo Hospital is sought to be
    established by Exbt. P10 series, P11
    series, P12 series, P13 series and P16
    series bills which come to more than
    Rs. 2,00,000/- (Rs. two lakhs). Apart
    from the same she has to meet other
    expenditure also as seen from Exbt. P6
    series, P14 series, P17 series, etc.
    Having regard to the aforesaid
    expenditure towards the hospital
    expenses, we consider that towards
    mental agaony and medical expenses the
    complainant is eligible for a total
    compensation of rs. 5,00,000/- (Rs.
    five lakhs).

        

    10. Now the liability to pay the said
    amount has also to be gone into
    particularly in the context of the
    submission by the learned Counsel for
    the first opposite party that, if at
    all, there is any liability that
    should be only for the second opposite
    party, doctor. This is a tortious
    liability; admittedly, at the relevant
    period the second opposite party,
    doctor was employed in the first
    opposite party hospital. Therefore,
    the first opposite party is cariously
    liable for the tortious acts of his
    employee during the course of his
    employment. But one important aspect
    to be noted is, the second opposite
    party in para 2 of the version stated
    that he has taken a professional
    indemnity policy for doctors and
    medical practitioner during the
    relevant period from the New India
    Assurance Company Limited and that the
    said party has to be impleaded.
    Accordingly the complainant moved a
    petition for impleading the said party
    ‘New India Assurance Company Limited’
    and was impleaded as the 3rd opposite
    party as per order on I.A. 983/1999.
    The 3rd opposite party though was
    served remained absent and was set ex-parte.
    Therefore, so far as the liability of
    the second opposite party doctor is
    concerned the 3rd opposite party has
    to indemnify to the extent of the
    insured amount. The second opposite
    party does not state for what amount
    he took the policy or the extent of
    the insurance cover. The 3rd opposite
    party is ex-parte. The 3rd opposite
    party cannot be absolved from the
    liability to the extent of the policy
    amount, the 3rd opposite party will be
    liable to indemnify the second
    opposite party to the extent of the
    amount covered by the policy. In the
    circumstance the complainant shall be
    entitled to her costs which we fix at
    rs. 2,000/-. Points found accordingly.

       

    11. In the result opposite parties 1
    and 2 are directed to pay Rs.
    5,00,000/- (Rs. five lakhs) to the
    complainant; the third opposite party
    is liable to indemnify the second
    opposite party to the extent of the
    amount covered by the policy. The said
    amount shall be paid as above within
    three months of the receipt of the
    copy of this order failing which the
    said amount will bear interest at 14%
    from the date of expiry of the said
    three months till payment or recovery.
    The complainant shall be entitled to
    her costs of Rs. 2,000/-.

      

    Complaint allowed.

        


       


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Orthopaedic Surgeon
      
          

  • Nadiya (Minor) Represented by Guardian v. Proprietor Fathima Hospital, Calicut & Ors.
    2001 (1) CPR 559
     
    Consumer Protection Act, 1986 - Section 2 and 14 – Medical negligence – Burden of proof is on complainant - Complainant got herself operated by opposite party No.2 in the hospital of opposite party No.1 for improving her height – Ring fixator was fixed on the legs – Left leg remained shorter `by 1-1/2 inch – Defence  pleas that said condition was because of failure of complainant to adhere to instructions and deformity occurred due to complication adoloscent idiopathic scolosis of the dorso lumbar spine’ – Defence pleaded  was not supported by any material – Burden on complainant to establish negligence has to be judged on facts of each case – Opposite party did not file even his affidavit - Complainant`s case that there was negligence and deficiency of service has to be accepted – Complainant had spent an amount of Rs.1,94,122/- in the opposite party hospital and Rs.2,00,000/-in other hospital which she consulted subsequently – She was 17 years old girl and must have undergone physical pain and agony as becoming afflicted with deformity - Compensation of 5 lakhs awarded to be paid in three months failing amount to carry interest at 14%.          (Paras 6 to 12)
     
    Result:  Complaint allowed.
     
    Counsel for the parties:
     
    For the Complainant : Mr.K.G.Pavithran, Advocate.
     
    For the Opposite Parties : Mr.M.Ramesh Chandran, Mr.K.Bhaskaran Nair, Advocates.
     
    ORDER
      
    L.Manoharan, President – Complainant, a minor represented by her father seeks for a direction to pay compensation on the allegation of negligence committed in the surgery conducted by the second opposite party, doctor who was then working in the first opposite party hospital.
     
    2. The allegations in brief is that the complainant aged 17 years an  a student of VIII standard had a height of 136 cms. Which for her age since was felt to be less, attracted by the advertisement Exbt P19 approached the first opposite party hospital in July 1996 where the second opposite party assured her increase in the height by 10 cms in six months by surgery and the charge for the same was fixed at Rs.32,000/-.  In view of the same, she got herself admitted on 24-7-1996 in the first opposite party hospital and her right leg below the knee was operated on 25-7-1996 and the left leg below the knee was operated on 1-8-1996. A Ring fixator was fixed on the legs; the one on the right leg was adjusted from 2-8-1996, and one on the other was adjusted from 10-8-1996, the same had to be adjusted every six hours. The staff of the hospitals were not trained for the said purpose and the father of the complainant was instructed to attend, the same as per the instructions of the doctor, and he was attending the same.  The fact that the nurse and staff were not equipped to attend the same itself would amount to negligence. On 16-9-1996 she was discharged with the instruction that every 15 days X-Ray has to be taken and has to be consulted.  At the time of discharge the length of the two legs were not the same and hence she could not walk. By September 1996, pain increased and when she met the second opposite party she informed him as to the same but he consoled her stating that the Ring fixator adjustment must be continued.  By the same the feet as well as the leg below the knees got curved. Later when she met him in the same month he instructed her to stop the adjustment of the Ring fixator on the left leg and to continue with respect to the right leg. Afterwards she was required to stop adjustment of the Ring fixator for the right leg also and in April 1997 the Ring fixators were removed  and plaster was applied.  But the left leg was short by 1-1/2 inches, the second opposite party said that the same was due to the curve in the lower part of the leg. As per the instruction of the second opposite party physiotheraphy was being continued.  On 17-9-1997 operation was conducted on the left foot and on 1-11-1997 skin grafting was also conducted. Though the difference in the length of the leg was brought to the notice of the second opposite party he got wild and instructed to continue of the physiotheraphy.  A physiotheraphist was engaged to attend the physiotheraphy at her home and the same was intimated to the second opposite party.  Since, the length of the left leg is shorter, she leans on the left there was also deformity for the foot. After the operation on 25-7-1996 she was bed ridden till March 1998.  A home nurse had to be appointed. Every 15 days X-ray had to be taken and the second opposite party was being consulted. The deformity and the disability of the complainant is on account of the negligence in conducting the aforesaid surgery. She had to incur an expense of Rs.2,43,000/-  for the operation and hospital expenses. Apart from the same, she has to incur other expenses for future treatment also, therefore the opposite parties are liable to compensate the complainant for the said injury caused to her due to their negligence.
     
    3. In the version by the first opposite party it is contended, the hospital is a reputed one having several qualified doctors in different specialities and also has qualified staff. The second opposite party is a qualified doctor and the deficiency in service alleged by the complainant is not true or correct, but admits  that the complainant was treated in the said hospital, the treatment given to her is borne out by the hospital records and she was given the best possible treatment. She has no cause of action against this opposite party. The nurses attached to the hospital are well qualified and well trained. The allegations of negligence is denied.
     
    4. In the version by the second opposite party he contended that he has taken a professional indemnity policy for doctors and medical practitioners from the New India Assurance Company Limited having their Head Office at M.G.Road, Bombay. The policy No. is 46721200 01833. Therefore the said Insurance Company also is a necessary party to the proceedings. The fact that the complainant approached the hospital for surgery for increasing her height is not disputed. She has the adoloscentidiopathic scolosis of the dorso lumber spine. The cause of her present position is the said condition, the same could not be noticed initially and the said condition is not caused by surgery. The present condition of the complainant cannot be attributed to the surgery performed by him, the father and daughter were informed as to the complications inherent in the said operation. They were also informed as to the nature of co-operation required from the patient for the success of the surgery. The cortiocotomy surgery with external fixator on the complainant`s right leg was done on 25-7-1996. The method of adjusting Ring fixator was explained, the staffs are qualified to adjust the Ring fixator. There are trained nurses in the hospital. After due surgery the complainant was discharged on 16-8-1996 with an advice to take X-ray and report back once in 15 days. In September, 1996 it was found that the complainant was not adhering to the instruction as to the stretching exercise, during that period though the bone was lengthening the muscles did not adequately stretch on account of the failure on the part of the complainant to attend the exercise as instructed. The X-ray showed, there was lenthening of both bones of the right leg.  But there was contractures, of the calf muscles, that was only due to inadequate stretching of the right calf muscles while bones continued to be lengthening, She and her father were told to do vigorous stretching exercise of the calf muscles. She was told as to the cause for her deformities of the feet, and if further lengthening of both the legs was not stopped, she would need corrective surgery. But she was adamant and wanted the lengthening process to continue and was prepared for the soft tissue correction surgery later. Later it was decided to further lengthening of the left leg to achieve equality in the length of both legs. The length of both the legs of the complainant was found equal on clinical examination as well as radiologically examination. It is incorrect to say that her left leg was shorter by 1-1/2 inch by the end of November 1997 she could walk. On 11-5-1998, the opposite party explained to the complainant, that the length of her both legs is equal, even then she was not convinced. On a detailed examination on 8-1-1998, it was found that she was developing a deformity of the `spine’ called “ Adoloscent Idopathic Scolosis “ of Dorso Lumber Spine which caused lifting up of the left side of the pelvis and alongwith it the whole left lower leg. Therefore, while standing, the level of the pelvis, instead of being horizontal became oblique with the left lower limb going up which produced an apparent and not true shortening of the left lower limb. He denied the allegation, there was deficiency of service. He also disputed the quantum of compensation claimed.  He wanted dismissal of the complaint.
      
    5. Complainant filed affidavit and offered for cross examination, she was examined as PWI, Complainant produced Exbts P1 to P20.  On  behalf of the opposite parties no affidavit was filed and none was examined. The points that would arise for consideration are:
     
    1. Is the complaint maintainable?  And whether the negligence and deficiency of service alleged is true?

    2. What, if any, is the compensation of which the complainant is entitled to?

    3. Relief and costs?
     
    Point No.1
     
    6. It is settled position that in a complaint which alleges negligence on the part of a Medical Practitioner the burden of proof is on the complainant. The fact that the complainant got herself admitted on 24-7-1996 for improving her height is not in dispute, surgery was conducted by the second opposite party on 25-7-1996 on the lower part of  the left leg and conducted surgery on 1-8-1996 on the lower part of the right leg also is not in dispute. Ring fixator was fixed on the legs, was adjusted from 10—1996 every six hours is also not in dispute. Whereas the complainant would allege that at her discharge on 16-8-1996 with the instruction that X-ray should be taken and must report back after 15 days, both legs were not of the same length, the second opposite party would not admit the same. The affidavit and the evidence of PWI would show that she was required to continue to the adjustment of the ring fixator, later at stages she was asked to stop the adjustment.  What she would swear is, because of the defect in the operation and treatment, her left leg remained shorter by 1-1/2 inch that the right leg and hence she leans on the left. But the second opposite party would contend that the said condition was because of the failure of the complainant to adhere to the instructions, and also would maintain that the same was due to the complication. `Adoloscent Idiopathic Scolosis of the Dorso Lumbar Spine.
     
    7. Now the question for consideration is whether the materials placed by the complainant alongwith her evidence would discharge her burden as to the alleged negligence. The probative value of the evidence tendered by the complainant by affidavit, as PWI and the documents produced, Exbt P1 to Exbt P20 has to be considered in the context of the attending circumstances and the nature of the contentions raised.  One important aspect to be kept in view is, complainant was 17 years at the time when she got admitted in first opposite party hospital.  Her height was 136 cms. Admittedly she consulted not for treatment of any illness or ailment. According to the complainant she did not suffer from any ailment and she approached the opposite parties for improving her height attracted by Exbt P19 advertisement.  Exbt P19 advertisement in the newspaper declares that a dwarf could become Amitabh Bachan of tomorrow. `It states that by the Illizorove method the height can be increased by one inch with in a period of 25 days and it mentions the second opposite party as the surgeon. This advertisement is not denied. The second opposite party would plead ignorance of such an advertisement; the first opposite party does not deny it.  What is important is, the occasion for the complainant to solicit the services of the opposite parties was the said advertisement. She underwent the said cosmetic surgery.  One of the aspects to be seen in this connection is whether there was informed consent for the said operation. The second aspect would be whether there was actual negligence in conducting the surgery resulting in injury to the complainant. As regards the question whether there was informed consent, the very allegation in para 3 of the complaint would support a conclusion that the second opposite party informed the complainant and her father as to the benefits of such surgery and that the achievements. PWI admitted in the cross examination that on 24-7-1998 she signed a paper giving consent to the operation. When the said testimony of the complainant is understood in the context of para 3 of the complaint it is probable that necessary consent was given.
       
    8. Then the question for consideration whether there was negligence in conducting the said operation. In appreciating the case of the complainant in this regard certain factors have to be kept in view; particularly her condition when she consulted the opposite parties and her condition after the surgery. As she was a healthy girl of 17 having no complication and there being no dispute that she came walking and it was only a cosmetic surgery just to improve her height, at that stage there is no case that she had any ailment. Exbt P1 discharge summary from 24-7-1996 to 16-8-1996 does not mention any particular ailment. Thus, from the evidence the complainant was an young girl of 17, healthy had no complaint when she approached the first opposite party surgeon except that she felt her height has to be improved. She underwent cosmetic surgery with Rings fixator.
     
    9. Having regard to the said details it would be necessary to see her present condition in the matter of judging as to whether she has discharged the burden of proof. As has noticed, she was healthy and the surgery which she underwent was not for any complaint or on account of her suffering from any illness or malfunctioning of system. But at trial she required to be helped to reach the witness box and she had to be permitted to sit while giving evidence. In the affidavit filed by the complainant it is averred that for correcting the deformity after the surgery she had to consult Dr.Gopalkrishnan of Appolo Hospital Madras in December 1998 and she was admitted  on 12-2-1998 in Appolo Hospital and had to undergo surgery on 3-12-1998. The said fact is averred in para 36 of the affidavit. Exbt P9 is the discharge summary of the Appolo Hospital which is proved by the affidavit of the complainant, the diagnosis mentioned therein, left tibial varus, intorsion deformity and left foot equino varus deformity. On the date of discharge her condition is stated to be “NWS left side with walker’. Exbt P9 shows that she has to have a walker on the left side, in the affidavit also she says, the deformity of the left leg reduced and movement was restored. Though she was cross examined by first and second opposite parties there is no effective cross examination by first and second opposite parties there is no effective cross examination on the aforesaid aspects, averred in the affidavit. Thus, what is to be noted is a healthy girl after the surgery needs the aid of a walker as she had to lean on the left.
     
    10. Another aspect to be noted in this connection is, the nature of the defence taken by the opposite party particularly the second opposite party particularly the second opposite party. As has noted where as the complainant would maintain that she followed the instructions and performed the exercise as was instructed and ultimatley physiotherapist too was engaged till said deformity on the performance of the surgery persists. One defence of the opposite party is, she did not comply with the instructions; at the same time he seeks to maintain that it is due to adoloscent idiopathic scolosis of the dorso lumber spine. Exbt P9 does not mention such a complication in Exbt p# the outpatient record has an entry on 8-1-1998 DL Spine scross of lumber region to the left.  Now it is necessary to note, whereas the complainant maintained her left leg is short by 1-1/2  inches, the second opposite party would deny the same and seeks to maintain that both the legs have same length. Incidently, Exbt P8 photograph with the negative proved by affidavit shows the features of the leg, it shows the deformity. In paragraph 15 of the second opposite party`s version it is contended, on 11-5-1998, the opposite party showed the complainant that on Rongerograms both legs were of equal length. But she was not convinced, the second opposite party contends on detailed examination, the opposite party found on 8-1-1998 that she was developing a deformity of the spine called `Adoloscent Idopathic Scolosis’ of Dorso Lumber Spine which in ordinary words is a curvature of the spine caused lifting up of the left side of the pelvis and alongwith it the whole left lower leg.  So, while standing, the level of Pelvis, instead of being normal horizontal became oblique with the left lower limb also went up. This produced, an apparent and not true shortening of the left lower limb. This pleading would go against his case that the deformity came into existence because of the negligence of the complainant in not adhering to the instructions. The effect of the same is also described in Para 3 of the version he says as regards the said condition “Cause of this is not known ad occurs between 10 years and skeletial maturity.” If that is the position, as has noticed  his case that the complication arose because of failure to adhere to the instructions cannot be supported. Thus in the very case of the opposite party there is inconsistency. It is significant, the second opposite party admits when the complainant stands the left limb would not touch the ground because it would be lifted. The cause he says is, a complication which as noticed to not disclosed till 8-1-1998. The complainant as PWI denied the said suggestion saying that she has no such disease or complication.
     
    11. The burden on a complainant to establish negligence has to be judged on the facts of each case.  In this case the complainant filed an affidavit detailing her case as well as offered for cross examinations, that she had to go to Appolo hospital is not challenged in the cross examination. None of the opposite parties has tendered any evidence either oral or documentary except producing the case file.  It is true that the complainant moved I.A. 779/2000 for the issue of a commission for examining Dr.Gopalkrishnan, the said application was allowed, but the complainant filed another application later saying that for the reasons averred in the affidavit the order appointing the commissioner has to be recalled. The reason averred in the affidavit is when the doctor was requested to give evidence he said due to certain subsequent events he is not in a position to give evidence in a case against a doctor. Of course the averment by the petitioner by itself need not render the examination impossible as in such circumstance he could have taken steps for the issue of summons to the doctor for his examination before this Commission as a witness. The question is whether the failure to examine the said doctor, in the facts and circumstances of this case would adversely affect the case of the complainant has to be judged  in the context of the nature of the case pleaded by the opposite party, the affidavit and evidence of PWI along with the materials already produced. As has already noted, the condition of the complainant when she consulted the 2nd opposite party, she was healthy without any complainant, her position after the surgery at discharge from first opposite party hospital alongwith the said evidence would show the burden is shifted to the opposite parties to substantiate their case that the lifting of the left limb was due to a complication which developed later. At least the second opposite party could have filed an affidavit and offered for cross examination. No reason whatever is assigned as to why any one of them did not file affidavit.  In such circumstances, with due regard to the nature of the case pleaded by the second opposite party, and the evidence tendered by the complainant, unless the opposite parties substantiates, that deformity is the result of the condition pleaded by them, the case of the complainant in this regard has to be accepted.  In this connection, it has to be noted, though it was contended that when the second opposite party wanted to stop the process at a particular stage the complainant insisted to continue the process for getting the desired height. This is not even put to PWI when she was examined. These are matters what could have been proved by filing affidavit and offering for cross examination, that is not done. Since the exhibits are proved by affidavit and there being no challenge as regard the same as complainant is entitled to rely on them. Exbt P1 series discharge summaries, P2 series P4 series, P5 series bills and Exbt P6 series prescriptions alongwith Exbt P3 series. Case records of the complainant 1st opposite party hospital support and corroborate the evidence of PWI and her affidavit as to her treatment and details of 1st opposite party hospital.  Exbt9 discharge summary alongwith P10 series, P11 series, P12 series, P13 series and P16 series bills of the Appolo Hospital prove that she had to undergo surgery and treatment there.  When such is the situation it has to be found that the case pleaded by the opposite party that because of Adoloscent idiopathic scolosis of the dorso lumbar spine” the present deformity developed is not substantiated. Then the case of the complainant that there is negligence and deficiency of service should be accepted. This point therefore found in favour of the complainant.
     
    Points No. 2 and 3
     
    The complainant has produced Exbts P2 series P4 series and P5 series bills evidencing payment to the first opposite party hospital. These bills take in an amount of Rs.1,94,122/- This is bare expenses in the first opposite party hospital towards medicine etc. The claim in the complaint is towards medical expenses Rs.2,43,000/- and for future treatment mental agony etc. the further claim is Rs.15 lakhs. Thus the total claim is Rs.17,43,000/- The bills and medical expense and the other charges of the hospital alone cannot be the expenditure, there could be other incidental expenses also. In measuring the compensation the actual expenses which she had to meet the subsequent charges at the Appollo hospital have to be kept in view. Apart from the same, naturally she should have undergone physical pain as well agony; an young girl becoming afflicted with such deformity will certainly be agonised and desperate. The expenditure at the Appollo hospital is sought to be established by Exbt P10 series P11 series P12 series P13 series bills which come to more than Rs.2,00,000/- (Rs.Two Lakhs). Apart from the same, she had to meet other expenditure also as seen from by Exbt P6 series P14 series P17 series etc. Having regard to the aforesaid expenditure towards the hospital expenses, we consider that towards mental agony and medical expenses the complainant is eligible for a total compensation of Rs.5,00,000/- (Rs.Five Lakhs).
       
    12. Now the liability to pay the said amount has also to be gone into particularly in the context of the submission by the learned counsel for the first opposite party that if at all there is any liability that should be only for the second opposite party, doctor. This is a tortious liability; admittedly, at the relevant period the second opposite party, doctor was employed in the first opposite party hospital. Therefore, the first opposite party is vicariously liable for the tortious acts of his employee during the course of his employment. But one important aspect to be noted is, the second opposite party in para 2 of the version stated that he has taken a professional indemnity policy for doctors and medical practitioner during the relevant period from the New India Assurance Company Limited and that the said party has to be impleaded. Accordingly, the complainant moved a petition for impleading the said party. New India Assurance Company Limited and was impleaded as the 3rd opposite party as per order on I.A. 983/99. The 3rd opposite party though was served remained absent and was set as parte. Therefore so far as the liability of the second opposite party has to be indemnify to the extent of the insured amount. The second opposite party does not state for what amount he took the policy or the extent of the insurance cover. The 3rd opposite party is the ex-parte, the 3rd opposite party can not be absolved from the liability to the extent of the policy amount, the 3rd opposite party will be liable to indemnify the second opposite party to the extent of the amount covered by the policy. In the circumstances the complainant shall be entitled to her costs which we fix at Rs.2,000/- Points found accordingly.
      
    13. In the result opposite parties 1 and 2 are directed to pay Rs.5,00,000/- (Rs.Five Lakhs) to the complainant the 3rd opposite party is liable to indemnify the second opposite party to the extent of the amount covered by the policy. The said amount shall be paid as above within three months of the receipt of the copy of this order failing which the said amount will bear interest at 14% from the date of the expiry of the said three months till payment or recovery. The complainant shall be entitled to her costs Rs.2,000/-.
    Complaint allowed.
      

  • NADIYA v. PROPRIETOR, FATIMA HOSPITAL
    II (2001) CPJ 93
       
    Consumer Protection Act, 1986 - Sections 2 (1)(g), 14(1) (d) – Medical Negligence – Deficiency in Service - Negligence committed in Surgery - Compensation – Complaint approached opposite party`s Hospital for surgery for increasing the height - Cortiocotomy surgery with external fixator done – Left leg remained shorter by 1 ½ inch than the right leg – A healthy girl after the surgery needs the aid of walker as she had to lean on the left – Burden shifted to opposite parties to substantiate the case that the lifting of the left limb due to a complication which developed later – Contention, complication arose because of failure to adhere to instructions cannot be supported - Case pleaded by opposite parties for present deformity not substantiated negligence / deficiency in service established – Complainant entitled to get compensation.  (Paras 7, 8 & 10) 
      
    (ii) Insurance – Professional indemnity policy taken for doctors and medical practitioner – Insurance Company liable to indemnify the opposite party to the extent of insured amount. (Para 12)
       
    Result : Complaint allowed
         
    Complainant, a minor represented by her father seeks for a direction to pay compensation on the allegation of negligence committed in the surgery conducted by the second opposite party, doctor who was then working in the first opposite party hospital.
        
    2. The allegation in brief are that the complainant aged 15 years and a student of VIII Standard had a height of 136 cm. which for her age since was felt to be less, attracted by the advertisement, Exbt P19 approached the first opposite party hospital in July 1996 where the second opposite party assured her increase in the height by 10 cms. in six months by surgery and the charge for the same was fixed at Rs.32,000/-. In view of the same, she got herself admitted on 24.7.1998, in the first opposite party hospital and her right leg before the knee was operated on 1.8.1996. Ring fixator was fixed on the legs; the one on the right leg was adjusted from 2.8.1996 and the one on the other was adjusted from 10.8.1996, the same had to be adjusted every six hours. The staff of the hospital were not trained for the said purpose and the father of the complainant was instructed to attend the same as per the instruction of the doctor, and he was attending the same. The fact that the nurse and staff were not equipped to attend the same; itself would amount to negligence. On 16.9.1996, she was discharged with instruction that every 15 days X-ray has to be taken and has to be consulted. At the time of discharge the length of the two legs were not the same and hence she could not walk. By September 1996, pain increased and when she met the second opposite party she informed him as to the same but he consoled her stating that the ring fixator adjustment must be continued. By the same the feet as well as the leg below the knee got curved. Later when she met him in the same month he instructed her to stop the adjustment of the Ring fixator on the left leg and to continue with respect to the right leg. Afterwards she was required to stop adjustment of the Ring fixator for the right leg also and in April, 1997 the Ring fixator for the right leg also and in April, 1997 the Ring fixators were removed and plaster was applied. But the left leg was short by 1 ½ inches, the second opposite party said that the same was due to the curve in the lower part of the leg. As per the instruction of the second opposite party physiotherapy was being continued. On 17.9.1997, operation was conducted on the left foot and on 1.11.1997 skin grating was also conducted. Though the difference in the length of the leg was brought to the notice of the second opposite party he got wild and instructed to continue on the physiotherapy. A physiotheraphist was engaged to attend the physiotherapy at her home, and the same was intimated to the second opposite party. Since, the length of he left leg is shorter, she leans on the left; there was also deformity for the foot. After the operation on 25.7.1996 she was bed-ridden till March, 1998. A home nurse had to be appointed. Every 15 days X-ray had to be taken and the second opposite party was being consulted. The deformity and the disability of the complainant is on account of the negligence in conducting the aforesaid surgery. She had to incur an expense of Rs.2,43,000/- for the operation and hospital expenses. Apart from the same, she had to incur other expenses for future treatment also, therefore, the opposite parties are liable to compensate the complainant for the said injury caused to her due to their negligence.
        
    3. In the version by the first opposite party it is contended, the hospital is a reputed one having several qualified doctors in different specialities and also has qualified staff. The second opposite party is a qualified doctor and the deficiency in service alleged by the complainant is not true or correct; but admits that the complainant was treated in the said hospital, the treatment given to her is borne out by the hospital records and she was given the best possible treatment. She has no cause of action against the opposite party. The nurses attached to the hospital are well-qualified and well-trained. The allegations of negligence is denied.
        
    4. In the version by the second opposite party he contended that he has taken a professional indemnity policy for doctors and medical practitioners from the New India Assurance Company Limited having their Head Office at M.G.Road, Bombay. The Policy No. is 46721200 01833. Therefore, the said Insurance Company also is a necessary party to the proceedings. The fact that the complainant approached the hospital for surgery for increasing her height is not disputed. She has the `adoloscentidiopathic scolosis’ of the of the dorso lumber spine. The cause of her present position is the said condition, the same could not be noticed initially and the said condition is not caused by surgery. The present condition of the complainant cannot be attributed to the surgery performed by him, the father the daughter were informed as to the complications inherent in the said operation. They were also informed as to the nature of co-operation required from the patient for the success of the surgery. The cortiocotomy surgery with external fixator on the complainant`s right leg was done on 25.7.1996. The method of adjusting Ring fixator has explained, the staff are qualified to adjust the Ring fixator. There are trained nurses in the hospital. After due surgery the complainant was discharged on 16.8.1996 with an advice to take X-ray and report back once in 15 days. In September, 1996 it was found that the complainant was not adhering to the instruction as to the stretching exercise; during that period though the bone was lengthening the muscles did not adequately stretch on account of the failure on the part of the complainant to attend the exercise as instructed. The X-ray showed, there was lengthening of both bones of the right leg. But there was contractures of the calf muscles, that was only due to inadequate stretching of the right calf muscles while bones continued to be lengthening. She and her father were told to do vigorous stretching exercise of the calf muscles. She was told as to the cause for her deformities of the feet, and if further lengthening of both the legs was not stopped, she would need corrective surgery. But she was adamant and wanting the lengthening process to continue and was prepared for the soft tissue correction surgery later. Later, it was decided to further lengthening of the left leg to achieve equality in the length of both legs. The length of both the legs of the complainant was found equal on clinical examination as well as radiological examination. It is incorrect to say that her left leg was shorter by 1 ½ ” inch, by the end of November, 1997 she could walk. On 11.5.1998, the opposite party explained to the complainant, that the length of her both legs is equal, even then she was not convinced. On a detailed examination on 8.1.1998 it was found that she was developing a deformity of the `spine’ called “Adoloscent Idopathic Scolosis” of Dorso Lumber Spine which caused lifting up of the left side of the pelvis and along with it the whole left lower leg. Therefore, while standing, the level of the pelvis, instead of being horizontal became oblique with the left lower limb going up which produced an apparent and not true shortening of the left lower limb. He denied the allegation, there was deficiency of service. He also disputed the quantum of compensation claimed. He wanted dismissal of the complaint.
        
    5. Complainant filed affidavit and offered for cross examination, she was examined as P.W.
      
    1. Complainant produced Exbts. P1 to P20. On behalf of the opposite parties no affidavit was filed and none was examined. The points that would arise for considerations are :
       
    (1) Is the complaint maintainable? And whether the negligence and deficiency of service alleged is true ?
     
    (2) What, if any, is the compensation to which the complainant is entitled to ?
     
    (3) Relief and costs.
       
    Point No.1 :
       
    It is settled position that in a complaint which alleges negligence on the part of a Medical Practitioner the burden of proof is on the complainant. The fact that the complainant got herself admitted in the first opposite party hospital on 24.7.1996 for improving her height is not in dispute, surgery was conducted by the second opposite party on 25.7.1996 on the lower part of the left leg and conducted surgery on 1.8.1996 on the lower part of right leg also is not in dispute. Ring fixator was fixed on the legs, the one on the left leg was adjusted from 2.8.1996 and the one on the right was adjusted from 10.8.1996 every six hour is also not in dispute. Whereas the complainant would allege that at her discharge on 16.8.1996 with the instruction that X-ray should be taken and must report back after 15 days, both legs were not of the same length, the second opposite party would not admit the same. The affidavit and the evidence of P.W.1 would show that she was required to continue to the adjustment of the Ring fixator, later at stages she was asked to stop the adjustment. What she would swear is, because of the failure of the complainant to adhere to the instructions and also would maintain that the same was due to the complication`Adoloscent idiopathic scolosis of the dorso lumbar spine.’
      
    6. Now, the question for consideration is whether the materials placed by the complainant along with her evidence would discharge her burden as to the alleged negligence. The probative value of the evidence tendered by the complainant by affidavit, as P.W. 1 and the documents produced, Exbt. P1 to Exbt. P20 has to be considered in the context of the attending circumstances and the nature of the contentions raised. One important aspect to be kept in view is, complainant was 17 years at the time when she got admitted in first opposite party hospital. Her height was 136 cms. Admittedly she consulted not for treatment of any illness or ailment. According to the complainant she did not suffer from any ailment and she approached the opposite parties for improving her height attracted by Exbt.19 advertisement. Exbt.19 advertisement in the newspaper declares that a `dwarf could became Amitab Bachan of tomorrow’. It states that by the Illizorove method the height can be increased by one inch within a period of 25 days and it mentions the second opposite party as the surgeon. This advertisement is not denied. The second opposite party would plead ignorance of such an advertisement; the first opposite party does not deny it. What is important is, the occasion for the complainant to solicit the service of the opposite parties was the said advertisement. She underwent the said cosmetic surgery. One of the aspects to be seen in this connection is whether there was informed consent for the said operation. The second aspect would be whether there was actual negligence in conducting the surgery resulting injury to the complainant. As regards the question whether there was informed consent, the very allegation in para 3 of the complaint would support a conclusion that the second opposite party informed the complainant and her father as to the benefits of such surgery and that the achievements. P.W.1 admitted in the cross-examination that on 24.7.1998 she signed a paper giving consent to the operation. When the said testimony of the complainant is understood in the context of para 3 of the complaint it is probable that necessary consent was given.

    7. Then the question for consideration whether there was negligence in conducting the said operation. In appreciating the case of the complainant in this regard certain factors have to be kept in view; particularly her condition when she consulted the opposite parties and her condition after the surgery. As she was a healthy girl of 17 having no complication and there being no dispute that she came walking and it was only a cosmetic surgery just to improve her height, at that stage there is no case that she had any ailment. Exbt. P1 discharge summary from 24.7.1996 to 16.8.1996 does not mention any particular ailment. Thus, from the evidence the complainant was a young girl of 17, healthy had no complaint when she approached the first opposite party hospital and consulted the second opposite party surgery except that she felt that her height has to be improved. She underwent cosmetic surgery with Rings fixator.

    8. Having regard to the said details it would be necessary to see her present condition in the matter of judging as to whether she has discharged the burden of proof. As has noticed, she was healthy and the surgery which she underwent was not for any complaint or on account of her suffering from any illness or malfunctioning of the system. But at trial she required to be helped to reach the witness box and she had to be permitted to sit while giving evidence. In the affidavit filed by the complainant it is averred that for correcting the deformity after the surgery she had to consult Dr.Gopalkrishnan of Apollo Hospital, Madras in December, 1998 and she was admitted on 2.12.1998 in Apollo Hospital and had to undergo surgery on 3.12.1998. The said fact is averred in para 36 of the affidavit, the reason for approaching the Appolo Hospital is also averred in para 35 of the affidavit. Exbt. P9 is the discharge summary of the Appolo Hospital which is proved by the affidavit of the complainant, the diagnosis mentioned therein, left tibial varus, intorsion deformity and left foot equino varus deformity. On the date of discharge her condition is stated to be “ NWB left side with walker ” Exbt. P9 shows that she has to have a walker on the left side, in the affidavit also she says, the deformity of the left leg reduced and movement was restored. Though she was cross-examined by first and second opposite parties there is no effective cross-examination on the aforesaid aspects; averred in affidavit. Thus what is to be noted is a healthy girl after the surgery needs the aid of a walker, she had to lean on the left.

    9. Another aspect to be in this connection is, the nature of the defence, taken by the opposite party particularly the second opposite party. As has noted whereas the complainant would maintain that she followed the instructions and performed the exercise as was instructed and ultimately physiotherapist too was engaged still said deformity on the performance of the surgery persists. One defence of the opposite party is, she did not comply with the instructions, at the same time he seeks to maintain that it is due to “adoloscent idiopathic scolosis of the dorso lumber spine.” Exbt.P9 does not mention such a complication, Exbt. P3, the out-patient record has an entry on 8.1.1998. “DL. Spine across of lumber region to the left. Now it is necessary to note, whereas the complainant maintained her left leg is short by 1 ½ inch, the second opposite party would deny the same and seeks to maintain that both the legs have same length. Incidentally Exbt. P8 photograph with the negative proved by affidavit shows the features of the leg, it shows the deformity. In paragraph 15 of the second opposite party`s version it is contended, on 11.5.1998, the opposite party showed the complainant that on Rongerograms both legs were of equal length. But she was not convinced, the second opposite party contends on detailed examination, the opposite party found on 8.1.1998 that she was developing a deformity of the spine called `Adoloscent Idiopathic Scolosis’ of Dorso Lumber Spine which in ordinary words is a curvature of the spine caused lifting up of the left side of the pelvis and along with it the whole left, lower leg. So, while standing, the level of Pelvis, instead of being normal horizontal became oblique with the left lower limb also went up. This produced, an apparent and not true shortening of the left lower limb.” This pleading would go against his case that the deformity came into existence because of the negligence of the complainant in not adhering to the instructions. The effect of the same is also described in para 3 of th version he says as regards the said condition “Cause of this is not known and occurs between 10 years and skeletial maturity.” If that is the position, as has been noticed his case that the complication arose because of failure to adhere to the instructions cannot be supported. Thus in the very case of the opposite party there is inconsistency. It is significant the second opposite party admits when the complainant stands her left limb would not touch the ground because it would be lifted. The cause he says is a complication which as noticed is not disclosed till 8.1.1998. The complainant as P.W.1. denied the said suggestion saying that she has no such disease or complication.

    10. The burden of a complainant to establish negligence has to be judged on the facts of each case. In this case the complainant filed an affidavit detailing her case as well as offered for cross examination, that she had to go to, Apollo Hospital is not challenged in the cross-examination. None of the opposite parties has tendered any evidence either oral or documentary, except producing the case file. It is true, that the complainant moved I.A.779/2000 for the issue of a commission for examining, Dr.Gopalkrishnan, the said application was allowed, but the complainant filed another application later saying that for the reasons averred in the affidavit the order appointing the Commissioner has to be re-called. The reason averred in the affidavit is when the doctor was requested to give evidence he said due to certain subsequent events he is not in a position to give evidence in a case against a doctor. Of course, the averment by the petitioner by itself need not render the examination impossible as in such circumstances he could have taken steps for the issue of summons to the doctor for his examination before this Commission as a witness. The question is whether the failure to examine the said doctor, in the facts and circumstances of this case, would adversely affect the case of the complainant has to be judged in the context of the nature of the case pleaded by the opposite party, the affidavit and evidence of P.W.1 along with the materials already produced. As has already been noted, the condition of the complainant when she consulted the 2nd opposite party, she was healthy without any complaint, her position after the surgery at discharge from first opposite party hospital along with the said evidence would show the burden is shifted to the opposite parties to substantiate their case that the lifting of the left limb was due to a complication which developed later. At least the second opposite party could have filed an affidavit and offered for cross-examination. No reason whatever is assigned as to why anyone of them did not file affidavit. In such circumstances with due regard to the nature of the case pleaded by the second opposite party, and the evidence tendered by the complainant, unless the opposite parties substantiates, that deformity is the result of the condition pleaded by them, the case of the complainant in this regard has to be accepted. In this connection, if has to be noted, though it was contended that when the second opposite party wanted to stop the process at a particular stage the complainant insisted to continue the process for getting the desired height. This is not even put to P.W.1 when she was examined. These are matters that could have been proved by filing affidavit and offering for cross-examination, that is not done. Since the exhibits are proved by affidavit and there being no challenge as regards the same the complainant is entitled to rely on them. Exbt.P1 series discharge summaries, P2 series, P4 series, P5 series bills and Exbt. P6 series prescriptions along with Exbt. P3 series. Case records of the complainant 1st opposite party hospital support and corroborate the evidence of P.W.1 and her affidavit as to her treatment and details of 1st opposite party hospital. Exbt. P9 discharge summary along with P10 series. P11 series, P12 series, P13 series and P16 series bills of the Apollo Hospital prove that she had to undergone surgery and treatment there , such is the situation it has to be found that the case pleaded by the opposite party that because of “Adoloscent idiopathic scolsis of the dorso lumbar spine” the present deformity developed is not substantiated. Then the case of the complainant that there is negligence and deficiency of service should be accepted. This point, therefore, found in favour of the complainant.
       
    Point Nos. 2 and 3 :
       
    11. The complainant has produced Exbts. P2 series, P4 and P5 series bills evidencing payment to the first opposite party hospital. These bills take in an amount of Rs.1,94,122/-. This is bare expenses in the first opposite party hospital towards medicine, etc. The claim in the complaint is towards medical expenses Rs.2,43,000/- and for future treatment, mental agony, etc. the further claim is Rs.15 lakhs. Thus the total claim is Rs.17,43,000/- . The bills and medical expense and the other charges of the hospital alone cannot be the expenditure, there could be other incidental expenses also. In measuring the compensation the actual expenses which she had to meet at the first opposite party hospital and also the further expenditure she had to meet, the subsequent charges at the Apollo Hospital have to be kept in view. Apart, from the same, naturally she should have undergone physical pain as well as agony; a young girl becoming afflicted with such deformity will certainly be agonizing and desperate. The expenditure at the Apollo Hospital is sought to be established by Exbt. P10 series, P11 series, P12 series, P13 series and P16 series bills which come to more than Rs.2,00,000/- – (Rs. Two lakhs). Apart from the same she had to meet other expenditure also as seen from Exbt. P6 series, – P14 series, P17 series, etc. Having regard to the aforesaid expenditure towards the hospital expenses, we consider that towards mental agony and medical expenses the complainant is eligible for a total compensation of Rs.5,00,000/- (Rs. Five lakhs).
        
    12. Now the liability to pay the said amount has also to be gone into particularly in the context of the submission by the learned Counsel for the first opposite party that, if at all, there is any liability that should be only for the second opposite party, doctor. This is a tortious liability; admittedly, at the relevant period the second opposite party, doctor was employed in the first opposite party hospital. Therefore, the first opposite party is vicariously liable for the tortious acts of the employee during the course of his employment. But one important aspect to be noted is, the second opposite party in para 2 of the version stated that he has taken a professional indemnity policy for doctors and medical practitioner during the relevant period from the New India Assurance Company Limited and that the said party has to be impleaded. Accordingly the complainant moved a petition for impleading the said party `New India Assurance Company Limited’ and was impleaded as the 3rd opposite party as per order on I.A.983/99. The 3rd opposite party though was served remained absent and was set ex-parte. Therefore, so far as the liability of the second opposite party doctor is concerned the 3rd opposite party has to indemnify to the extent of the insured amount. The second opposite party does not state for what amount he took the policy on the extent for the insurance cover. The 3rd opposite party is ex-parte. The 3rd opposite party cannot be absolved from the liability to the extent of the policy amount, the 3rd opposite party will be liable to indemnify the second opposite party to the extent of the amount covered by the policy. In the circumstances the complainant shall be entitled to her costs which we fix at Rs.2000/- Points found accordingly.
      
    In the result opposite parties 1 and 2 are directed to pay Rs.5,00,000/- (Rs. Five lakhs) to the complainant, the 3rd opposite party is liable to indemnify the second opposite party to the extent of the amount covered by the policy. The said amount shall be paid as above within three months of the receipt of the copy of this order failing which the said amount will bear interest at 14% from the date of the expiry of the said three months till payment or recovery. The complainant shall be entitled to her costs Rs.2000/-.
    Complaint allowed with 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.
       
    JUDGMENT
        
    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.
         
    ORDER
        
    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.
    Appeal 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 patient’s 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 child’s 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 patient’s relatives have been made to understand the importance of repeated X-ray.      (Para 7)
     
    Result : Complaint allowed.
     
    ORDER
     
    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 complainant’s 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 John’s, it is clearly mentioned that X-ray must be repeated after a few days. In Champbell’s 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 patient’s 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 child’s 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 patient’s 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.
     
    Complaint allowed.
        

  • Smt. Bett Bal Saxena v. Dr. S.L. Mukherjee, Orthopaedic Surgeon & Ors.
    2001 (2) CPR 163
      
    STATE CONSUMER DISPUTES REDRESSAL COMMISSION,  MADHYA PRADESH : BHOPAL
       
    Consumer Protection Act, 1986 – Sections 12 and 17 – Medical Negligence – Complainant – appellant was operated by respondents for removal of bony growth in right hip joint on 28-8-1992 – No relief was found in pain – Second operation done by other doctor on 16-4-1993 and a moping Gauze Piece found inside the wound which was removed and complainant recovered – Affidavit of second doctor proved that gauze piece was found sinus was formed and pus was coming out of wound – Infrence is that there was negligence at that time of first operation which resulted forming of hoemotoma and pus – Respondent doctors failed to take proper care while closing operated part and left a mopping gauze inside the wound – It was case of medical negligence – Complainant - Appellant held entitled to Rs. 40,168/- amount incurred second operation and Rs. 25,000 as compensation for mental and physicalagony and Rs. 3,000/- as cost.     (Paras 5 to 10 )
      
    Result – Appeal allowed.
     
    Important Point
     
    When doctor while closing the operated area left a mopping gauze piece inside the wound it would be a case.
     
    ORDER
     
    B.L. Khare, Member – This is a complainant’s appeal against the order dated 30/11/1999 passed in Case No. 277/93 by the District Consumer Disputes Redressal Forum, Jabalpur (for short the ‘District Forum’).
      
    2. The facts giving rise to this appeal are that the appellant Smt. Bell Bai Saxena was suffering from severe pain in hips so she approached to respondent Nos. 1 and 2 the Father and the Son who are Orthopaedic Surgeon, running a clinic as P.G.Hospital. The respondent No. 3 in Insurance Company with Whom respondent Nos. 1 and 2 insured for medical claim if any medical contingency arises. The respondent Nos. 1 and 2 examined the appellant and found that appellant was a chronic patient of Exostosis and advised her operation for removal of extra bony growth in right hip-joint. The appllant was admitted in the hospital of respondent Nos. 1 and 2 as indoor patient on 18-8-1992, The operation to remove bony growth in right hip joint was performed on 20-8-1992. The appellant was admitted in the hospital upto 3-9-1992 on this date she was discharged from the hospital thereafter appellant returned to her house which is situated at Udaypura District Raisen. When the was no relief  in pain she approached again, respondent Nos. 1 and 2 on 21-9-1992 for examination. The respondents told her that she will have to be operated again. The appellant had lost faith in the respondent Doctors, therefore, she did not continue the treatment of respondent Nos. 1 and 2 and consulted another doctor Dr. Jitendra Jamdar on 23-9-1992. Dr. Jamdar examined the appellant and advised some medicines. The applleant continued the treatment of Dr. Jamdar for five months. When there was no relief, so the appellant came to Bhopal and consulted Dr. B. Das who is an Orthopaedic Surgeon. Dr. Das examined the patient on 16-3-1993 and recommended that an operation will have to be done so after one month on 16-4-1993 an operation or right hip joint was performed by Dr. Das in Suresh Nursing Home at Bhopal. During this operation Dr. Das found a Moping Gauze piece inside the wound, it shows that Dr. S.L. Mukherjee, the respondent No 1 and his son Dr. Abhijeet Mukherjee the respondent No 2. have acted in a negligent manner while performing the operation of appellant. Moping Gauze piece was left by them inside the wound, therefore, the appellant had to suffer continuously and there was pain and pus was coming from the wound. It is the allegation of the appellant that respondent Nos. 1 and 2 have not taken proper care while performing the operation of the hip-joint. Thus for medical negligence and deficiency in sevice the appellant approached the District Forum and claimed a compensation of Rs. 1,62,003.03 paise from the respondents. The District Forum after examining the evidence adduced by the parties found that there was no negligence on the part of the respondents. On  the other hand, it was the complainant who was negligent in changing doctor after doctors, therefore, found that the complainant had failed to prove the allegations of medical negligence, therefore, rejected the complaint and ordered the complainant to pay Rs 2,000/- to the respondents as costs of the proceedings. It is against this order, the complainant has preferred this appeal.
      
    3. The main contention of the complainant was that it was the respondent Nos. 1 and 2 who acted negligently while performing operation and a Moping Gauze piece was left by them in the wound. This could happen only when after operation dressing is done. The Doctors have not taken proper care to clean, wash and negligently left the Moping Gauze piece in the wound due to which the wound could not heal up and there was continuous pain and formation of pus in the wound for which she has to approach several Doctors for treatment and spent Rs 62,000/- together with Rs. 1,00,000/- as compensation for mental and physical agony.
     
    4. The respondents No 1 and 2 denied the allegations and submitted their own affidavit and affidavits of Dr. Sanjay Khanna who is anaestheist and Dr. Rajeev Bhandari, who was assisting the operation. The district Forum has analysed the case at length and has recorded the finding in the case. The respondents have submitted that they have performed the operation on 20-8-1992 and kept the patient in the hospital. The conducted all the investigations required for conducting operation. The Exostosis which was developed near the right hip joint of the appellant was cut and removed. On cutting any bone the raw bone surface has tendency to bleed slowly by a process called “oozing”, This blood collects inside the wound sometimes and forms a solid blood clot. The blood clot slowly liquifies inside the body to form a collection of liquid called “Haematoam” within one to few weeks after the operation. They submitted that it is not an unusual thing to happen in case of EXOSTOSIS, If the volume of haematoma is small, it gets absorbed, but if the volume is large it tends to leak out of some place in the original stitched wound or any weak spot in the skin, In the present case, they stated that they had checked that the bleeding has stopped from the operated area, the wound was closed by them. They took all precaution while performing operation, therefore there was not question of leaving a Moping Gauze piece inside the wound. The respondents further made clear that during surgery a Moping Gauze piece of size 5″ x 5″ cannot remain inside the wound because mopping swab is always with a tag which is clamped with a forceps outside the wound so that it is visible. They have stated that they checked an rechecked the operated area so strictly for fresh bleeding before applying the stitches. In the event of a big surgical mopping swab left inside the wound, there will be tremendous tension in the tissues on applying the stitches, then there will be difficulty in closing the wound, Therefore, they submitted that they have not acted negligently during the operation and also while closing the wound, Therefore , they submitted that they have not acted negligently during the operation and also while closing and stitching the wound. In reply, the respondents further stated that after operation post operative care was duly taken when the wound had perfectly healed, the stitches were removed and the patient was discharged from the hospital on 3-9-1992. In his affidavit respondent No, 2 Dr. Abhijeet Mukherjee in paras 5,8 and 7 has stated that small gauze pieces are not used in operation theatre for their hospital, large storage of atleast 10″ x 10″ are used in their hospital and these sponges have radio opaque lining which can be detected in any post operative X-ray, hence, If any sponge remains inside the wound, it can be easily detected through an X-ray. No such X-ray has been filed by the complainant to prove that the mopping Gauze piece was inside the wound. The respondents admitted that on 21-9-1992 the appellant visited them with complaint of swelling and pain at the place of operation and on this, they examined the patient and found that there was some discharge of blood from the wound though a small opening, therefore, they dialated and enlarged the small opening and removed the haematoma. After removing haematoma, fresh bleeding started which was packed y a Gauge to stop bleeding and the appellant was advised to come after 2-3 days for removal of gauge packing. After that the patient did not visit their hospital and consulted several other doctors. They have specially denied that they have advised for second operation of the appellant because the patient  did not visit after 21-9-1992, therefore, they are not responsible for any complications developed later on. They have also drawn our attention to the certificate given by Dr. B. Das of Bhopal dated 28-8-1993 which reads thus :
     
    “Smt. Beti Bal Saxena 60 years. F BPL
      Operated on 16-4-1993 for Discharge sinus from Gluteal region Rx- Over Gv. TR
     
    Wound had healed following Surgery a foreign body (mopping gauge piece about 5″ x 5″ with a tag in one corner) was removed from inside the muscle mass of Glutel. Wound had completely healed following removal of F.B. Needs no treatment.
     
    Signed/-
    (Dr .B. Das)
    28-8-1993″
     
    5. In the affidavit Dr. Das has stated that when he performed operation on 16-04-1993 he found a Mopping Gauze piece of 5″x 5″ under skin Fat and muscles. The plea of the respondent that the mopping Gauze piece was found between Fat and Muscle is not corroborated Dr. Das. The District Forum while analyzing the affidavit of Dr. B. Das has given a finding that the gauze piece was found between skin and fat.
      
    6. We have gone through the evidence and find that the time of giving discharge certificate, Dr. Das had mentioned that the mopping Gauze piece was found inside the muscle mass of Glutel and in his affidavit he has also stated that (the mopping gauze piece was found below skin fat and muscle, while, the District Forum has mentioned that the gauze piece was found between skin and fat which is not corroborated with the affidavit of Dr. B. Das , therefore this finding of the district forum is erroneous. Dr. B. Das has further stated in his affidavit that if any foreign body remains inside the body then it forms a sinus and the wound does not heal up and pus remains coming out from that wound. In the affidavit, Dr. Das has stated that when he examined the patient, he found that at the first place of operation, pus was oozing and when he removed the foreign body i.e. gauze piece the wound was cured and the patient was alright.
     
    7. From analysis of the complaint and affidavits adducing evidence, it is clear that the appellant as continuously suffering from pain and the pus was oozing out from the wound that means a sinus was formed and the pus was coming out from the wound. The affidavit of Dr. Das makes clear that the gauze was below the muscle, therefore, as per opinion of Dr. Das the pus was coming out from the wound. In this case, therefore on the basis of affidavit of Dr. Das, the usual inference is that there was some negligence at the time of first operation which resulted forming of haemotoma and pus oozed out from the place of first operation, therefore, the finding of the District Forum is erroneous and cannot be sustained.
     
    8. True, the medical negligence cannot be attributed if a Doctor has followed the discipline and the ethics provided in Medical Books and if the Doctor has acted with reasonable degree of skill and care, then he cannot be said to be negligent. But in the instant case, we find that so far as the operation part is concerned, Doctor has performed operation as per medical norms and ethics but they have not taken proper care while closing the operated area and left a mopping gauze piece inside the wound. Therefore, this is a case of medical negligence.
     
    9. To conclude, we find that the appellant has proved by the opinion of Medical Expert Dr. B. Das, who was Head of the Dept of Orthopaedica in the Medical Colleges that the respondents were negligent while closing the wound and they left gauze piece inside the wound and therefore, they are responsible for deficiency in service. We, therefore, find that due to this negligent act of the respondents, the appellant was constrained to approach other Doctors, Dr. Jamdar and Dr. B. Das and she was required to pay additional fee of Rs 24,752.85 paise and Rs 15,415.30 paise in all total of Rs. 40,168.15 paise.
     
    10. So far as fees paid to the respondents is concerned, it was for the hospital charges and the operation performed by the respondents. Therefore, we do not take that fees into consideration we, therefore, are of the opinion that the respondents shall pay jointly or severally amount of Rs. 40,168.15 paise towards the expenses incurred in treatment and compensation of Rs. 25,000/- for mental and physical agony and Rs. 3,000.00 as cost of the proceedings throughout within a period of two months from the date of receipt of certified copy of the order failing which the total amount of Rs. 68,168:15 paise shall carry interest at the rate of 9% per annum from the date of this order.
     
    11. In view of the above, the appeal is allowed. The order of the district Forum is set-aside. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith the record of the case.
     
    Appeal allowed.
        

  • Dr. Anumalla Satyanarayana v. K. Shankar
    I(2000)CPJ288 S C DRC, AP.
      
    Consumer Protection Act, 1986-Section 15-“Appeal”-Section2(1)(g)-“Medical Negligence”-Complainant suffering from pain in the right leg-Consulted opposite party-Kept under his own diagnosis-No Relief-Complainant went another hospital-Leg was to be amputated because of gangrene had settled-complaint-District Forum allowed Complaint-Appeal-Opposite party did not consult any specialist-Did not refer the complainant to any other hospital-Order of District Forum upheld-Complainant entitled to compensation.
      
    Held: The opposite party diagnosed that the complainant was suffering from “Thrombo  Angitis obliterans” which pertains to the blood and treated him accordingly. The opposite party advised diet control orally which was not denied by the complainant. But while following all the instructions of the opposite party under his treatment, the pain was aggravated and the complainant on his own discontinued the treatment and came to Hyderabad. In other words, those last ten days prior to coming to Hyderabad and getting admitted in Apollo Hospital were crucial and the fact that the leg had to be amputated due to gangrene established that there was negligence on the part of the opposite party. If the opposite party could not give relief to the complainant or suspected that gangrene could set in (as he admits having warned the complainant) he should have referred him to a vascular specialist instead of continuing to treat himself.
        
    We, therefore are of the view that in the present case, the opposite party continued to treat the complainant according to his own diagnosis, though the complainant complained of no relief. The opposite party neither consulted another specialist nor referred the complainant to anther hospital/specialist though he was a known diabetic. The opposite party admitted that in his condition, gangrene could set in any time. Which actually was diagnosed to be so on the very next day when the respondent was admitted in Apollo Hospital and his right leg was amputated on 9.7.1994. Loosing the leg must have been a traumatic experience apart from the inconvenience and expenditure involved. It has also meant loss of earning by the bread winner complainant.
      
    We, Therefore, uphold the order of District Forum. The appeal stands rejected.
        

  • Mrs. K.K. Radha v. Dr. G.U. Shekhar & Anr.
    1994 (3) CPJ 376(Ker SCDRC)
      
    the complainant alleged that she sustained a fracture on the lower part of her leg, for which she got admitted to BKM Hospital, Payannur, where she was treated by Dr. Shekhar. She was told that he had to implant compression plate and having got it purchased, it was not used and instead wires and screws were used. After removal of plaster it was noticed that site of operation had developed an abscess. Second opinion was taken and an emergency operation was performed to remove foreign bodies inside her leg, and subsequently plaster had to be recast four times. Negligence was held on the basis of:
      
    · Compression plate not used after getting it purchased and neither the complainant nor her husband were informed anything about it. It was not known what was done with the same. The x-ray film clearly revealed this.
      
    · Dr. Usman, Professor in Orthopaedics in the Kasturba Medical College, Mangalore clearly stated that for treatment in the case of fracture of tibia using of wires is not advisble. Departure from the orthodox course of treatment was not justified by the opposite parties.
     
    · The standard of care and skill expected of a doctor was grossly wanting as was evidenced by the need to remove extraneous materials found inside the leg by operation conducted by Dr. Usman.
     
    Rs.2 lacs was awarded as compensation. As the notices could not be served on Dr. Shekhar and since his address was not known, the second opposite party, i.e. the hospital’s vicarious liability was fixed and it was asked to pay the compensation awarded.
     
    In the case of P.P. Ismail v. K.K. Radha, an appeal was preferred against the decision of the Kerala State Commission by Mr. P.P. Ismail, Managing Director of BKM Hospital, who was asked to compensate to the tune of Rs. 2 lakhs as he was held vicariously liable for the negligence of Dr. G.U. Shekhar.
      
    The National Commission found no merit in this appeal, and upheld the decision of the State Commission.
       

  • Shibu v. St. Joseph Hospital & Ors.
    1995(3) CPR 177 (Kerala SCDRC)
       
    More Details        Click Here
       

  • V.P.Shanta & Ors. Cosmopolitan Hospitals (P) Ltd & Ors.
    1997(1)CPR 377 (Kerala SCDRC)
       
    the complainant’s husband aged 59 years had a fall from his cot on 4.7.1990. As he went to the Cosmopolitan Hospital., Trivandrum where the 2nd opposite party examined him and opined that he had fracture of left neck of femur for which he was operated on 6.7.1990 . Simultaneously, he was also operated upon his salivary gland. During the post-operative period it was noticed that he had some respiratory difficulty but the duty doctors did not take it seriously and the operating surgeon had left. Ultimately the 5th opposite party came to the hospital, and examined the patient and announced that he was dead. The behavious of the hospital authorities after the death was highly suspicious. They sent a copy of the bill only after repeated requests, but refused to part with the x-ray films. It was alleged that this was on account of the fear of the fact that providing these x-rays would have revealed that conservative treatment like traction and medication would have cured the problem; but, in order to increase the number of operations and to augment income the decision to operate was taken. The hospital had also failed to carry out necessary pre-operative investigations and the services of a cardiologist were not obtained.
       
    The State Commission held deficiency in service on part of the hospital on two issues (i) failure to deliver X-ray films, as the patient and his attendants (complainants in the instant case) have a right to be informed of the nature of injury sustained, and this right was deprived. The contention that the relatives had taken away the X-ray film, without furnishing a receipt was not accepted; (ii) not making proper arrangement for observation of the patient between 4.45 p.m. to 5.40 p.m. on 6.7.1990 after the patient was removed to post operative ward which was required after two operations on the patient out of which one was admittedly a very major operation. The patient developed cardiac arrest and pulmonary embolism and it was not certain that the complainant could have been saved. Something could have been done if the patient was not left unattended by a doctor and if cardiologist was summoned immediately.
       
    A compensation of Rs.25000/- with interest at the rate of 12% p.a. from the date of death till payment was awarded. This amount was to be paid by the hospital, as no negligence could be established against the doctors.
         

  • NACHHATAR SINGH v. MALKEET SINGH
    III (2001) CPJ 237
      
    Section 15 – Appeal – Section 2(1)(g) Deficiency in Service – Section 14(d) – Compensation – Medical Negligence Complainant’s minor daughter suffered fracture on left arm – Take to opposite party – Applied plaster – No cure – Taken to doctor – Complaint - District Forum granted Rs. 50,000/- as compensation – Appeal – Opposite party not a qualified doctor – Not authorise to provide such services on charging fees – Compensation rightly awarded.
      
    Held : Admittedly, the appellant is not a qualified doctor. Whatever knowledge he had gained from his experience in giving such treatment, may be, but that does not authorise him to provide such services on charging fees. The very fact that unqualified persons attempted to render services of a doctor on charging fees will amounts to quackery as has been rightly described in the impugned order and their continuance cannot be encouraged.
      
    Poor people should expect poor quality of medical service cannot be made a rule. It is for the protection of such poor people that Consumer Protection Act has been enacted to safeguard their rights. May be other remedies, criminal in nature, are available but that can hardly be a ground to deny the relief to the complainant under the Consumer Protection Act. The point taken up in the ground of appeal in this respect only deserve to be mentioned to be rejected.
       
    When a young girl had suffered fracture of the arm proper treatment was required to be given to her. If the appellant had provided imperfect treatment ruining her future prospects in life, on leniency deserves to be taken in favour of the appellant. No doubt on the question of disability some better evidence could be made available but that does not mean that the complainant is to be totally deprived of the compensation. A reasonable and just compensation is required to be fixed in such cases even in the absence of actual loss having been suffered. Rather it is very difficult for taking a strict view in the matter of fixing of compensation in the matter of minor child who had to bear with the loss, for life time. The amount of compensation awarded in the present case is just and reasonable, which does not call for interference in this appeal.
       
    Result :Appeal dismissed with cost.
        
    ORDER
      
    Mr. Justice A.L. Bahri, President - District Forum, Faridkot on March 25, 1998 allowed complaint filed by Malkeet Singh against Nachhatar Singh Tohra. A direction was given to the opposite party to pay a sum of Rs. 50, 000/- out of which Rs. 10,000/- to be straightway paid to Malkeet Singh, complainant whereas the remaining amount of Rs. 40,000/- payable to minor Gagandeep kaur was ordered to be deposited in the State Bank of Patiala, Faridkot in Special Term Deposit till attainment of majority. The said order has been challenged in this appeal filed by the opposite party, Nachhatar Singh.
       
    2. On May 15, 1997 Gagandeep Kaur, a minor daughter of Malkeet Singh suffered fracture on her left arm. She was taken to the opposite party, Nachhatar Singh who used to provide treatment for Fractured bones. On charging fee of Rs. 500/- Nachhatar Singh applied plaster of paris on the arm of Gagandeep Kaur. A prescription for medicines was also got prepared at his dictation. On subsequently visit, he charged Rs. 150/-. In spite of this, there was no cure. Ultimatel, the patient was taken to a docotr who provided necessary treatment. In all the complainant had to spent Rs. 40,000/- to Rs. 50,000 /-. In the complaint filled before the District Forum a sum of Rs. one lac was claimed as compensation on account of loss suffered due to deficiency in rendering service on the part of the opposite party.
        
    3. Nachhatar Singh Tohra contested the complaint by submitting his version. All the allegations made by the complainant were denied. He denied having given any treatment to Gagandeep Kaur. He also denied having got prepared the prescription slip. In fact he did not give any treatment much less charging of fees. Replication was filed by the complainant reiterating the stand as taken up in the complaint. Both the parties led their evidence on affidavits and documents. The District Forum while holding deficiency in rendering services allowed the compensation as referred to above.
        
    4.We have gone through the grounds of appeal and have heard Counsel for the respondent. it is asserted on behalf of the respondent that at no stage the complainant disclosed any representation having been made by the opposite party, proclaiming to give treatment for fractured bones. No such sign board was displayed at the outside the house of the opposite party inviting patients for treatment. Even the complainant did not assert that he hired the services of the appellant or that the appellant had agreed or promised to set the bones right. It has further been asserted in the ground of appeals that without any medical evidence no findings regarding negligence on the part of the opposite party could be arrived at. It is further asserted that so-called prescription slip is not of medicines but is of ghee, sugar and grounded gram etc. (tonic) to strengthen the body. The District Forum wrongly asserted and described the appellant as a quack. From a quack the skill of a doctor was not expected. The complainant cannot be treated as a consumer as no fees were changed.
        
    5. We have given due consideration to such like assertion as taken up in the ground of appeal. But we find no merit in this appeal. As per evidence of Malkeet Singh (two affidavits produced by him), the fractured bones were exposed as found on the child and the opposite party had put plaster. This treatment was not proper. In the complaint specifically it was asserted that the plaster was applied on the first day. No doubt putting plaster is one of the modes of treatment of management of bones. However when bones were exposed putting of the plaster was not specifically denied. The argument as in the grounds of appeal that medical evidence in the form of expert witness should have been produced to prove negligence cannot be accepted in the facts of the present case. The complainant produced X-ray, Ultrasound and Prescription Slip and referred to the same in his affidavit. Thus such documents could be relied upon. On ultrasound fracture of the bone was observed and prescription of the doctor indicated debridment having been done suggesting that cells on the skin were dying which were removed. There is no merit in the assertion that only from medical expert negligent act could be proved. Admittedly, the appellant is not a qualified doctor. Whatever knowledge he had gained from his experience in giving such treatment, may be, but that does not authorise him to provide such services on charging fees. The very fact that unqualified persons attempted to render services of a doctor on charging fees will amounts to quackery as has been rightly described in the impugned order and their continuance cannot be encouraged.
        
    6. Poor people should expect poor quality of medical service cannot be made a rule. It is for the protection of such poor people that Consumer Protection Act has been enacted to safegaurd their rights. May be other remedies, criminal in nature, are available but that can hardly  be a ground to deny the relief to the complainant under the Consumer Protection Act. The point taken up in the ground of appeal in this respect only deserves to be mentioned to be rejected.
        
    7. When a young girl has suffered fracture of the arm proper treatment was required to be given to her. If the appellant had provided imperfect treatment ruining her future prospects in life, no leniency deserves to be taken in favour of the appellant. No doubt on the question of disability some better evidence could be made available but that does not mean that the complainant is to be totally deprived of the compensation. A reasonable and just compensation is required to be fixed in such cases even in the absence of actual loss having been suffered. Rather it is very difficult for taking a strict view in the matter of fixing of compensation in the matter of minor child who had bear with the loss, for the time. The amount of compensation awarded in the present case is just and reasonable, which does not call for interference in this appeal.
        

  • SMT. BETI BAI SAXENA v. DR. S.L. MUKHERJEE
    III (2001) CPJ 251
       
    Consumer Protection Act, 1986 - Sections 2(1)(g), 14(1)(d) – Medical Negligence – Deficiency in Service - Moping Gauze piece left in the wound while performing operation – Complaint dismissed by Forum – Hence appeal - Appellant continuously suffering from pain, pus oozing out from the wound - Allegation proved by the opinion of Medical Expert – Deficiency in service on behalf of opposite parties proved - Order of Forum set aside – Complainant entitled to compensation.
      
    Held :  In the instant case, we find that so far as the operation part is concerned, doctor has performed operation as per medical norms and ethics but they have taken proper care while closing the operated area and left a mopping gauze piece inside the wound. Therefore, this is a case of medical negligence.
        
    To conclude, we find that the appellant has proved by the opinion of Medical Expert Dr. B. Das, who was Head of the Department of Orthopaedic in the Medical Colleges that the respondents were negligent while closing the wound and they left gauze inside the wound and, therefore, they are responsible for deficiency  in service.
     
    Result : Appeal allowed
          
    ORDER
       
    Mr. B.L. Khare, Member – This is a complainant’s appeal against the order dated 30.11.1999 passed in Case Nos. 277/93 by the District Consumer Disputes Redressal Forum, Jabalpur (for short the District Forum).
        
    2. The facts giving rise to this appeal are that the appellant Smt. Beti Bai Saxena was suffering from server pain in hips so she approached to respondant Nos. 1 and 2 the father and the son who are Orthopaedic Surgeons, running a clinic as P.G. Hospital. The respondent No. 3 is Insurance Company with whom respondent Nos. 1 and 2 insured for medical claim if any medical contingency arises. The respondent Nos.  1 and 2 examined the appellant and found that appellant was a chronic patient of EXOSTOSIS and advised her operation for removal of extra bony growth in right hip-joint. The appellant was admitted in the hospital of respondent Nos. 1 and 2 as indoor patient on 18.8.1992. The operation to remove bony growth in right hip joint was performed on 20.8.1992. The appellant was admitted in the hospital upto 3.9.1992 , on this date she was discharged from the hospital thereafter appellant returned to her house which is situated at Udaypure, District Raisen. When there was  no relief in pain she approached again respondant Nos. 1 and 2 on 21.9.1992 for examination. The respondents told her that she will have to be operated again. The appellant had lost faith in the respondents doctors, therefore, she did not continue the treatment of respondent Nos. 1 and 2 and consulted another doctor Dr. Jitendra Jamdar on 23.9.1992. Dr. Jamder examined the appellant and advised some medicines. The appellant continued the treatment of Dr. Jamdar for five months. When there was no relief, so the appellant came to Bhopal and consulted Dr. B. Das who is an Orthopaedic Surgeon. Dr. Das examined the patient on 16.3.1993 and recommended that an operation will have to be done so after one month on 16.4.1993 an operation of right hip joint was performed by Dr. Das in Suresh Nursing Home at Bhopal. During this operation, Dr. Das found a Moping Gauze piece inside the wound, it shows that Dr. S.L. Mukherjee, the respondent No.1 and his son Dr. Abhijeet Mukherjee, the respondent No.2 have acted in a negligent manner while performing the operation of appellant. Moping Gauze piece was left by them inside the wound, therefore, the appellant had to suffer continuously and there was pain and pus was coming from the wound. It is the allegation of the appellant that respondent Nos. 1 and 2 have not taken proper care while performing the operation of right hip joint. Thus for medical negligence and deficiency in service the appellant approached the District Forum and claimed a compensation on Rs. 1,62,003.30 paise from the respondents. The District Forum after examining the evidence adduced by the parties found that there was no negligence on the part of the respondents. On the other hand, it was the complainant who was negligent in changing doctor after doctor, therefore, found that the complainant had failed to prove the allegations of medical negligence, therefore, rejected the complaint and ordered the complainant to pay Rs. 2,000/- to the respondents as costs of the proceedings. It is against this order, the complainant has preferred this appeal.
       
    3. The main contention of the complainant was that it was the respondent Nos. 1 and 2 who acted negligently while performing operation and a Moping Gaze piece was left by them in the wound. This could happen only when after operation dressing is done. The doctors have not taken proper care to clean, wash and negligently left the Moping Gauze piece in the wound due to which the wound could not heal up and there was continuous pain and formation of pus in the wound for which she has to approach several doctors for treatment and spent Rs. 62,000/- in the treatment. She claimed this Rs. 62,000/- together with Rs. 1,00,000/- as compensation for mental and physical agony.
      
    4. The respondent Nos. 1 and 2 denied the allegations and submitted their own affidavit and affidavits of Dr. Sanjay Khanna who is anaesthetist and Dr. Rajeev Bhandari, who was assisting the operation. The District Forum has analysed the case at length and has recorded the finding in the case. The respondents have submitted that they have performed the operation on 20.8.1992 and kept the patient in the hospital. They conducted all the investigations required for conducting operation. The Exostosis which was developed near the right hip joint of the appellant was cut and removed. On cutting any bone the raw bone surface has a tendency to bleed slowly by a process called “oozing”. This blood collects inside the wound sometimes and forms a solid blood clot. The blood clot slowly liquifies inside the body to form a collection of liquid called “Haematoma” within one to few weeks after the operation. They submitted that it is not an unusual thing to happen in case of EXOSTOSIS. If the volume of haematoma is small, it gets absorbed, but, if the volume is large, it tends to leak out of some place in the original stitched wound or any weak spot in the skin. In the present case, they stated that they had checked that the bleeding has stopped from the operated area, the wound was closed by them. They took all precaution while performing operation, therefore, there was no question of leaving a Moping Gauze piece inside the wound. The respondents further made clear that during surgery a Moping Gauze piece of size 5″ * 5″ cannot remain inside the wound because mopping swab is always with a tag which is clamped with a forceps outside the wound so that it is visible. They have stated that they checked and re-checked the operated area so strictly for fresh bleeding before applying the stitches. In the event of a big surgical mopping swab left inside the wound, there will be tremendous tension in the tissues on applying the stitches, then there will be difficulty in closing the wound. Therefore, they submitted that they have not acted negligently during the operation and also while closing and stitching the wound. In reply, the respondents further stated that after operation, post operative care was duly taken and when the wound had perfectly healed, the stitches were removed and the patient was discharged from the hospital on 3.9.1992. In his affidavit respondent No. 2 Dr. Abhijeet Mukherjee in paras 5, 6 and 7 has stated that small gauze pieces are not used in operation theatre of their hospital, large sponge of atleast 10″ *10″ are used in their hospital and these sponges have radio opaque lining which can be detected in any post operative X-Ray, hence, if any sponge remains inside the wound, it can be easily detected through an X-Ray. No such X-Ray has been filed by the complainant to prove that the Moping Gauze piece was inside the wound. Then respondents admitted that on 21.9.1992, the appellant visited them with complaint of swelling and pain at the place of operation and on this , they examined the patient and found that there was some discharge of blood from the wound through a small opening, therefore, they dialated and enlarged the small opening and removed the haematoma. After removing haematoma, fresh bleeding started which was packed by a Gauze to stop bleeding and the appellant was advised to come after 2-3 days for removal of gauze packing. After that the patient did not visit their hospital and consulted several other doctors. They have specifically denied that they have advised for second operation of the appellant. Because the patient did not visit after 21.9.1992, therefore, they are not responsible for any complications developed later on. They have also drawn our attention to the certificate given by Dr. B. Das of Bhopal dated 26.6.1983 which read thus :
     
    “Smt. Beti Bai Saxena 60 yrs. F BPL.
     
    Operated on 16.4.1993 for Discharging sinus from Gluteal region Rx – Over Gv. TR
     
    Wound has healed following surgery a foreign body (mopping gauze piece about 5″ * 5″ with a tag in one corner) was removed from inside the muscle mass of Glutei. Wound has completely healed following removal of F.B. Needs no treatment.
      
    Signed
    (Dr. B. Das)
    26.6.1993.”
       
    5. In the affidavit Dr. Das has stated that when he performed operation on 16.4.1993 he found a Moping Gauze piece of 5″ * 5″ under Skin Fat and Muscles. The plea of the respondents that the Moping Gauze piece was found between Fat and Muscle is not corroborated by Dr. Das. The District Forum while analysing the affidavit of Dr. B. Das has given a finding that the gauze piece was found between skin and fat.
      
    6. We have gone through the evidence and find that at the time of giving discharge certificate, Dr. Das has mentioned that the Mopping Gauze piece was found inside in the muscle mass of Glutei and in his affidavit he has also stated that the Mopping Gauze piece was found below skin, fat and muscle, while, the District Forum has mentioned that the gauze piece was found between skin and fat which is not corroborated with the affidavit of Dr. B. Das, therefore, this finding of the District Forum is erroneous. Dr. Das has further stated in his affidavit that if any foreign body remains inside the body then it forms a sinus and the wound does not heal up and pus remains coming out from that wound. In the affidavit, Dr. Das has stated that when he examined the patient, he found that at the first place of operation, pus was oozing and when he removed the foreign body i.e. gauze piece the wound was cured and the patient was alright.
      
    7. From analysis of the complaint and affidavits adducing evidence, it is clear that the appellant was continuously suffering from pain and the pus was oozing out from the wound that means a sinus was formed and the pus was coming out from the wound. The affidavit of Dr. Das makes clear that the gauze was below the muscle, therefore, as per opinion of Dr. Das the pus was coming out from the wound. In the case, therefore, on the basis of affidavit of Dr. Das, the usual inference is that there was some negligence at the time of first operation which resulted forming of hoemotoma and pus oozed out from the place of first operation, therefore, the finding of the District Forum is erroneous and cannot be sustained.
      
    8. True, the medical negligence cannot be attributed if a doctor was followed the discipline and the ethics provided in Medical Books and if the doctor has acted with reasonable degree of skill and care, then he cannot be said to be negligent. but in the instant case, we find that so far as the operation part is concerned, doctor has performed operation as per medical norms and ethics but they have not taken proper care while closing the operated area and left a mopping gauze piece inside the wound. Therefore, this is a case of medical negligence.
      
    9. To conclude, we find that the appellant has proved by the opinion of Medical Expert Dr. B. Das, who was Head of the Department of Orthopaedic in the Medical Colleges that the respondents were negligent while closing the wound and they left gauze piece inside the wound and, therefore, they are responsible for deficiency in service. We, therefore, find that due to this negligent act of the respondents, the appellant was constrained to approach other Doctors, Dr. Jamdar and Dr. B. Das and she was required to pay additional fee of Rs. 24,752.85 paise and Rs. 15,415.30 paise in all total of Rs. 40,168.15 paise.
      
    10. So far as fees paid to the respondents is concerned, it was for the hospital charges and the operation performed by the respondents. Therefore, we do not take that fees into consideration. We, therefore, are of the opinion that the respondents shall pay jointly or severally amount of Rs. 40,168.15 paise towards the expenses incurred in treatment and compensation of Rs. 25,000/- for mental and physical agony and Rs. 3,000.00 as cost of the proceedings throughout, within a period of two months from the date of receipt of certified copy of the order failing which the total amount of Rs. 68,168.15 paise shall carry interest at the rate of 9% per annum from the date of this order.
      
    11. In view of the above , the appeal is allowed. The order of the District Forum is set aside. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with the record of the case.
      
    Appeal allowed.
         

  • NADIYA v. PROPRIETOR, FATHIMA HOSPITALNADIYA v. PROPRIETOR, FATHIMA HOSPITAL
    III (2001) CPJ 572
       
    (i) Consumer Protection Act, 1986 - Section 2(1)(g) – Medical Negligence - Deficiency in Service – Negligence in Surgery – Compensation – Complainant got admitted for surgery for increasing height – Surgery conducted – Ring fixator fixed – Left leg remained shorter by 3/2 inch – A healthy girl of 17 years, needs the aid of walker after the surgery - Burden on opposite parties to substantiate their case that complication developed later on - Burden not discharged by filing affidavit – Negligence and deficiency in service established – Complainant entitled to compensation.
       
    (ii) Vicarious Liability – Doctor employed in the hospital – Hospital vicariously liable for the tortious acts of employees during the course of employment.  (Para 12)
       
    (iii) Insurance – Professional indemnity policy for doctors and medical practitioners – Insurance Company liable to indemnify the hospital to the extent of amount covered by the policy.   (Para 12)
       
    Result : Complaint allowed.
      
    ORDER
       
    Mr. Justice L. Manoharan, President - Complainant, a minor represented by her father seeks for a direction to pay compensation on the allegation of negligence committed in the surgery conducted by the second opposite party, doctor who was then working in the first opposite party hospital.
       
    2. The allegation in brief is that the complainant aged 15 years and a student of VIII Standard had a height of 135 cm. which for her age since was felt to be less, attracted by the advertisement Exbt. P19 approached the first opposite party hospital in July, 1996 where the second opposite party assured her increase in the height of 10 cms. in six months by surgery and the charge for the same was fixed at Rs. 32,000/-. In view of the same she got herself admitted on 24.7.1998 in the first opposite party hospital and her right leg below the knee was operated on 25.6.1996 and the left leg below the knee was operated on 1.8.1996. A ring fixator was fixed on the legs; the one on the right leg was adjusted from 2.8.1996, and one on the other was adjusted from 10.8.1996, the same had to be adjusted every six hours. The staff of the hospital was not trained for the said purpose and the father of the complainant was instructed to attend the same as per the instruction of the doctor, and he was attending the same. The fact that the nurse and staff were not equipped to attend the same itself would amount to negligence. On 16.9.1996 she was discharged with instruction that every 15 days X-ray has to be taken and has to be consulted. At the time of discharge the length of the two legs were not the same and hence she could not walk. By September, 1996 pain increased and when she met the second opposite party she informed him as to the same but he consoled her stating that the ring fixator adjustment must be continued. By the same the feet as well as the leg below the knee got curved. Later when she met him in the same month he instructed her to stop the adjustment of the ring fixator o nthe left leg and to continue with respect to the right leg. Afterwards she was required to stop adjustment of the ring fixator for the right leg also and in April, 1997 the ring fixators were removed and plaster was applied. But the left leg was short by 3/2 inches, the second opposite party said that the same was due to the curve in the lower part of the leg. As per the instruction of the second opposite party physiotherapy was being continued. On 17.9.1997 operation was conducted on the left foot and on 1.11.1997 skin grafting was also conducted. Though the difference in the length of the leg was brought to the notice of the second opposite party he got wild and instructed to continue of the physiotherapy. A physiotherapist was engaged to attend the physiotherapy at her home and the same was intimated to the second opposite party. Since the length of the left leg is shorter, she leans on the left; there was also deformity for the foot. After the operation on 25.7.1996 she was bed-ridden till March, 1998. A home nurse had to be appointed. Every 15 days X-ray had to be taken and the second opposite party was being consulted. The deformity and the disability of the complainant is on account of the negligence in conducting the aforesaid surgery. She had to incur an expense of Rs. 2,43,000/- for the operation and hospital expenses. Apart from the same, she has to incur other expenses for future treatment also, therefore, the opposite parties are liable to compensate the complainant for the said injury caused to her due to their negligence.
        
    3. In the version by the first opposite party it is contended, the hospital is a reputed one having several qualified doctors in different specialities and also has qualified staff. The second opposite party is a qualified doctor and the deficiency in service alleged by the complainant is not true or correct; but admits that the complainant was treated in the said hospital, the treatment given to her is borne out by the hospital records and she was given the best possible treatment. She has no cause of action against this opposite party. The nurses attached to the hospital are well-qualified and well-trained. The allegation of negligence is denied.
       
    4. In the version by the second opposite party he contended that he