BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
C.C.NO.15 OF 2010
Between:
A.Bhumanna S/o R/o Complainant
1. Dr.Vidyasagar C/o
2. Kamineni Hospital,
Opposite parties
Counsel for the Appellant M/s
Counsel for the Respondent No.1 M/s Counsel for the Respondent No.2 M/s
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
MONDAY THE THIRTY DAY OF DECEMBER
TWO THOUSAND TWELVE
Oral Order (As per Sri
***
1. The complaint is filed seeking compensation against the opposite parties no.1 and 2 a sum of `50
2. The averments of the complaint are that the complainant, a government school teacher was proceeding as pillion rider on a Motor Cycle on 21.07.2006 which met with an accident resulting in injury and swelling to the complainant’s left knee for treatment which he consulted a local doctor who treated him for two days and thereafter the complainant attended to his duties. In the month of August and once
3. The complainant consulted orthopedic surgeon at NIMS, Hyderabad twice and he advised the complainant to do physiotherapy exercise which did not yield any result and the complainant approached the opposite party no.1 at the opposite party no.2-hospital. The first opposite party advised the complainant for MRI and do exercise. The complainant complained that while doing exercise he swelling and while walking he was experiencing some obstruction in the upper side portion of his left knee cap and while walking he developed swelling as also that his right knee became weak. The first opposite party advised for ligament operation and informed the complainant that the complainant would be relieved of pain and he can play games The first opposite party informed the complainant that there would be no side effects and after surgery the complainant has to do physiotherapy exercise.
4. The first opposite party assured the complainant that after the surgery everything would be normal and he estimated the expenditure between `25,000/- to `35,000/-. The complainant requested the opposite party no.1 to perform the surgery only if it is essential and the first opposite party emphasized the essence of the operation and as advised the complainant had been to the second opposite party-hospital to undergo the operation on 8.03.2007 and he was asked to come on 13.03.2007 for the surgery to be performed upon him on 14.03.2007. The second opposite party conducted surgery upon the complainant on 14.03.2007 and the complainant was discharged on 17.03.2007 and he was advised to do the exercise. During the review on 26.03.2007 the complainant was advised to do some other exercises and the complainant developed swelling to his left knee on 5.04.2007 and he suffered from unbearable pain.
5. The complainant was admitted in the second opposite party-hospital on 7.04.2007 and the fluids effused were aspirated from his knee joint and he was advised rest for one week. Between 8.04.2007 and 3.08.2007 the complainant consulted the first opposite party at the second opposite party hospital for 20 times and each time the first opposite party advised the complainant to do some or other exercise. The complainant was unable to walk and he has to come to Hyderabad in car and there was no improvement in his condition. The complainant’s condition was deteriorated and the complainant could not stand or walk. The doctors of the second opposite party-hospital prescribed antibiotics for 60 days and subjected the complainant to X-ray and MRI and advised him to do exercise.
6. The complainant consulted several specialists such as and
7. The complainant incurred an amount of `3 he has become invalid. Because of the unnecessary operation his life became miserable and he is still undergoing the ordeal. He has twenty more years of service.
8. The first opposite party has filed written version contending that he was appointed as Head of the Orthopedic Department of the opposite party no.2-hopsital and during the tenure of his service with the opposite party no.2-hopsital he had not practiced independently or as consultant or as any employee of any other hospital. The complainant consulted the first opposite party at the opposite party no.2-hopsital on 2.03.2007 and informed the first opposite party that he fell from a two wheeler on 21.07.2006 and sustained injury to his left knee and he fell down once again after a month therefrom and he had limping, episodic
9. Prior to coming to the opposite party no.2-hopsital, the complainant consulted several orthopedic doctors ,0 with loss of full extension (standing was not possible). The complainant had lateral joint line tenderness and anterior draw test positive (which denotes that anterior cruciate ligament was ruptured). McMurray’s test was positive for lateral meniscus tear.
10. The MRI dated 21.02.2007 taken at KIMS had shown were seen on the MRI. After finding that the complainant was not diabetic nor hypertensive, the first opposite party advised for CBP The first opposite party advised the complainant to find out the estimate from the billing section of the opposite party no.2-hopsital.
11. The complainant got admitted on 14.03.2007 against the advice to join as inpatient on 12.03.2007. On the same day Arthroscopic reconstruction of ligament ACL ligament was performed upon him and the complainant was discharged on 17.03.2007. The complainant stayed at the opposite party no.2-hopsital for three days and the post-operative period was uneventful. He was put on physiotherapy exercise such as static quadriceps exercise and active toe and ankle movements and supported walking. Sterile change of dressing was done on the second post-operative day and he was made to walk with walker support from the first post-operative day. Check X-ray showed well placed end button with good position of tunnel. ACL tear and PCL tear were normal. MM and LM were normal. The first opposite party advised the complainant to walk with walker support till 25.03.2007 and to continue antibiotics till suture is removed. The complainant was advised for review on 10th post-operative day for removal of the suture and after three weeks from the date of surgery for ACL rehabilitation.
12. The complainant visited the opposite party no.2-hopsital on 26.03.2007 and after being examined referred to physiotherapy department where he was given an exercise book containing pictorial explanation of ACL rehabilitation exercises. He was made to do the exercise to make sure that he would do the same afterwards. Application of ice was advised before and after the exercise. Capsule INAC was prescribed to take as and when pain is there and he was advised to come back ten days after the suture removal. On 6.04.2007 the complainant was advised for admission and the next day he came with sudden onset of pain localized to knee joint and he was admitted in the opposite party no.2-hopsital for rehabilitation. X-ray of the left knee, blood test and ESR were advised. He was advised specific ACL rehabilitation exercises. X-ray of knee showed no bone injury. Total count was increased and ESR was 100mm and no abnormality of operated knee was detected. Aspiration of knee joint was done. The fluid was sent for culture and sensitivity. The complainant was advised ice application for three to four times a day.
13. The complainant was admitted in the opposite party no.2-hopsital on 8.04.2007 and he was discharged on 9.04.2007. All necessary investigations were done. Culture test of the fluid had shown no bacterial growth which ruled out presence of infection at the operated joint. The complainant was advised to use the medicine prescribed and attend for review after a period of 7 days and he was advised to do exercise and cold pack application. The complainant attended for review on 16.04.2007 and on 30.04.2007. The complainant obtained fitness certificate on19.04.2007 and he informed the first opposite party that he was attending to his duties.
14. The documents filed by the complainant would show that he contacted several doctors simultaneously and he did not inform the same to the first opposite party. The complainant went to the complainant consulted
15. The complainant again approached on 9.08.2007 On 15.03.2008 the complainant approached
16. The complainant consulted
17. The opposite party no.2-hopsital resisted the claim contending that the complainant was treated with due diligence and necessary precautions. The first opposite party treated the complainant and the first opposite party stopped attending to the patients in the month of September The first opposite party is not an employee of the opposite party no.2-hopsital and he is a consultant who treated the complainant and as such the first opposite party is responsible to answer the allegations made by the complainant. Pre-surgery investigations were conducted and after obtaining the from the complainant the first opposite party performed arthroscopic reconstruction of ligament on 14.03.2007 and the post operative period was uneventful.
18. The complainant consulted the first opposite party on 25.03.2007, 6.04.2007 and 7.04.2007 with complaint of sudden onset of pain in the knee area of his left leg. On the advice of the first opposite party the complainant was admitted and evaluated by conducting all necessary investigations and after required medications was given, the complainant was discharged on 9.04.2007 with an advice for follow up after 7 days and again the complainant consulted the first opposite party on 16.04.2007 and 30.04.2007,22.05.2007 and 18.-6.2007. Adequate monitoring and appropriate best treatment was provided to the complainant.
19. The complainant filed the complaint without knowing medical and surgical procedure and practice. The complainant was ill-informed about the line of treatment followed by the opposite party no.2-hopsital. The complainant is not a consumer and there was no negligence on the part of the opposite party no.2-hopsital in rendering treatment to him. The opposite party no.2-hopsital is equipped with state of art medical equipment and having well trained and experienced nursing staff and paramedical staff. There was no negligence of the opposite party no.2-hopsital in providing infrastructure facility to the complainant during his stay with the opposite party no.2-hopsital.
20. The complainant has filed his affidavit and the documents, ExA1 to A34. On behalf of the opposite filed his affidavit and the documents, Exs.B1 and B2.
22. The counsel for the complainant and the opposite party no.1 has filed written arguments.
23. The point for consideration is whether there is any medical negligence in the treatment rendered to the complainant?
24. The complainant fell while proceeding on a two wheeler as a pillion rider on 21.07.2006 resulting injury to his left knee. The complainant has stated that he was under treatment of a local doctor for two days and thereafter he attended to his duties. Later, in the month of August
25. The learned counsel for the complainant has contended that the first opposite party has advised the complainant and performed the surgery upon the complainant which is not at all necessary. He has contended that the first opposite party instead of resorting to reconstruction of the ligament, he ought to have repaired it. He has relied upon the literature down loaded from the The learned counsels for the opposite parties have contended that there was no negligence on the part of the opposite parties in rendering the treatment to the complainant.
26. The literature referred to by the counsel for the complainant deals with the facts which provide the circumstances that require performing the surgery and whether the surgery involves repairing or reconstruction of the anterior cruciate ligament. It reads as under:
When is surgery required
· Surgery is performed more often than not following Anterior Cruciate ligament tears. With a repair, the existing damaged ligament is sutured (stitched) if the tear is in them idle. If the ligament has detached from the bone (avulsed) then the bony fragment is reattached.
· Surgical reconstruction of the ACL, is performed using either an extraarticular technique (taking a structure that lies outside the capsule such as a portion of the hamstring tendon) or an intra-
What does surgery · Surgery involves either repairing or reconstructing the anterior cruciate ligament
· With a repair, the existing damaged ligament is sutured (stitched) if the tear is in the middle
· If the ligament has detached from the bone (avulsed) then the bony fragment is reattached
· Surgical reconstruction of the ACL is performed using either an extra-articular technique (taking a structure that lies outside the joint capsule, most commonly a portion of the hamstring tendon) or an intra-articular technique (using a structure from within the knee such as part of the patellar tendon) which will replace the anterior cruciate ligament.
27. Thus, the decision as to whether perform surgery depends on various factors such as the age of the patient, lifestyle, occupation of the patient and degree of knee instability and any other associate injuries. The complainant had been under the treatment of other doctors who had not expressed opinion that the surgery performed upon the complainant was not necessary or irrelevant. Simply the other doctors who treated the complainant earlier or simultaneously when the first opposite party treated him at the second opposite party-hospital it cannot be said that the first opposite party resorted to unnecessary surgery upon the complainant.
28. In “ 1 May, 2009, the the decision of the doctor in choosing a particular line of treatment cannot be termed as erroneous or unacceptable. It was held that:
‘It is also relevant that though the respondent had sought the opinion of Dr.
(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed”;
21. It would, thus, be seen that the appellant's decision in choosing ‘
29. It cannot be said in certain terms that in the light of the admission of the first opposite party that if the tear is in the middle, the repair has to be done and not reconstruction as there is
30. Having held that it is in the domain of the treating doctor to opt for or not performing the surgery upon the complainant, we will consider whether the opposite parties have taken reasonable care during pre-operative stage, during the period of surgery and during post-operative stage. The Executive Officer of the opposite party-hospital has stated that :
“ I submit that the record shows that the complainant namely The opposite party no.1 doctor, after examining and going through the relevant records, advised the complainant to undergo for surgery arthroscopic reconstruction (ACLR)
I submit that the complainant consented for the same and admitted on 14.03.2007 in the opposite party no.2 hospital. After pre-surgery investigations, on 14.3.2007 the opposite party no.1 had conducted surgery of “Anterior cruciate ligament reconstruction (ACLR)” of left knee under general anesthesia. Post-operative period was uneventful, from the next day the complainant was made to walk with walker support. The complainant was discharged on 17.3.2007”.
31. The first opposite party has deposed that he advised the complainant to get admitted on 12.03.2007 and the complainant was admitted on 14.03.2007 and on the same day he performed the tests prior to surgery. He has stated as under:
“I submit that I took detailed history of injury and examined the complainant, and found that the Left Knee was having fixed flexion deformity of 150 with loss of full extension. ( The complainant had lateral joint line tenderness and anterior draw test positive (which denotes that anterior cruciate ligament was ruptured) McMurray’s test positive for lateral meniscus Tear. The complainant had shown MRI report dated 21.02.2007 of KIMS, which was brought by him, which was seen by opposite party no.1, it was showing It is submitted that, Medical meniscus and Lateral Meniscus tears were seen on the MRI. It is submitted that after finding that he was not a diabetic and hypertensive, and I asked for regular pre-operative investigation i.e., CBP complete blood picture), ESR, Blood Urea, Serum The above blood tests were advised and pre-anesthesia was done by anesthesiologist at opposite party no.2 hospital and he was advised arthroscopic reconstruction of ACL ligament after the above.
32. The complainant has stated that the first opposite party has conducted the operation in haste and failed to sufficiently conduct preoperative tests. The learned counsel for the complainant has submitted that the opposite parties failed to explain as to why the surgery was conducted in haste. The literature provides for the steps to be followed prior to ACL surgery in the following terms:
What can a professional can do?
- A Doctor or Sports injury Professional can assess the knee joint to confirm a torn ACL
- Diagnose any additional injuries
- If unsure you may be sent for an MRI scan or X-ray
- Refer for Surgery if required
- Provide a pre-surgery rehabilitation program in order to strengthen the knee and reduce the swelling in preparation for surgery. This will help produce the gest results following surgery.
33. The first opposite party in his cross examination has admitted that the patient must be fit to undergo ACL reconstruction and it involves doing exercise. He has
“It is not true that I have not stated in my evidence affidavit the above averment. It is true that the surgery was done on the very day of admission. It is true that I have not advised any particular period of post-operative rehabilitation exercises to be done by the patient. Witness adds that different persons depending on their exercise tolerance will take individual time periods. It is true that to conduct the Arthroscopic ACL reconstruction patient must be fit enough as it involves exercises. Witness adds that the fitness of the patient to undergo Arthroscopic ACL reconstruction under anesthesia, fitness of the patient was checked by pre-operative blood investigations and pre-anesthetic check-up”.
34. Admittedly, the complainant was suffering from swelling and pain of his left knee. The other orthopedic surgeons who treated the complainant either at different period of time or simultaneously when the opposite parties have medically treated him did not say that pre-surgery rehabilitation programme can be dispensed with. In the absence of any evidence contra, we hold the opposite parties fell short of degree of care in proceeding to conduct operation neglecting to do pre-operation rehabilitation programme. The dual benefit of the pre-surgery rehabilitation programme that it can strengthen the knee and reduce the swelling in preparation was done away. The pre-surgery rehabilitation
35. The complainant stayed for three days after the surgery and the post-operative period was uneventful. He was discharged from the opposite party no.2-hospital on 17.03.2007. The statement of the first opposite party that the complainant was discharged since he made request that he would be doing the exercise at his home is not rebutted by the complainant. The operative findings are:
“ACL (Anterior Cruciate Ligament) tear and PCL (Posterior Cruciate Ligament) tear were normal, MM and LM were normal”
36. The first opposite party has stated that the complainant was advised to walk with the support of walker till 25.03.2007 and to continue antibiotics till the suture is removed. On 26.03.2007 the complainant visited the opposite party no.2- It is not denied that he was given an exercise book containing pictorial explanation of ACL Rehabilitation Exercises which were made to be done by him to ensure that he would be doing them as advised and the first opposite party prescribed Cap .INAC-TR to be taken as and when the complainant experienced pain.
37. The complainant was advised admission on 6.04.2007 after he was subjected to X-ray, CBP and ESR and the opposite parties prescribed His knee joint X-ray has shown no injury to the bone and the total count was increased as also had shown increase up to 100mm. The first opposite party has stated that he detected no abnormality and the aspiration done ruled out infection as the fluid sent for culture and sensitivity reported no growth of any organism. The complainant was discharged with follow up after 7 days and till then he was advised to take medicine, tablets
38. The complainant attended for review on and he was advised to continue the ACL Rehabilitation Exercises and the next review date was 30.04.2007 on which day the complainant stated to have informed the first opposite party that he was doing the ACL Rehabilitation Exercises and attending to his duties. It is not disputed that the complainant obtained fitness certificate on 19.04.2007 from the second opposite party hospital to join duty from 19.04.2007. On 30.04.2007 the complainant consulted orthopedic surgeon also.
39.
40. The complainant consulted lag of 15 degrees and mildly swollen knee, effusion +/- and the complainant had 150 degrees to 110 degrees of movement of knee joint”. He advised the complainant to walk with knee cap and advised not to perform strenuous exercise and to for review after three days.
41. The complainant consulted who advised the complainant to continue the ACL Rehabilitation Exercises. During review on 19.05.2007 and the doctor noted in his prescription that the complainant was not properly doing the exercise and he demonstrated to the complainant how to perform quadriceps exercise and advised him to attend for review after three weeks.
42. The complainant consulted The first opposite party contends that the opinion of the MD Neuro Care, Secunderabad that “demyelinating neuropathy” is the cause for the weakness the complainant experienced in his both legs.
44. The complainant approached
45. The learned counsel for the complainant has contended that the first opposite party has not provided surgical rehabilitation, the surgery was not necessary and it ruined the knee ligament of the complaint. The learned counsel for the first opposite party has submitted that the first opposite party had exercised utmost care in rendering treatment to the complainant and due to the complainant consulting several doctors simultaneously, he ruined his knee. The learned counsel for the complainant submits that the first opposite party advised the complainant to consult any doctor for second opinion and he has deposed that the medicines prescribed by the other doctors are supplementary to the medicine prescribed by him. He has submitted that the complainant suffered from orthopedic problem and not neurological problem whereas the learned counsel for the first opposite party has contended that the complainant suffered from neurological problem and not orthopedic problem.
46. The evidence on record in regard to the aspect of the postoperative stage treatment and the complaints thereof is equally divided. Different doctors expressed different opinions and no doctor has expressed definite opinion in certain terms. Neither the complainant nor the opposite parties have made a mention prior to the dispute reaching this Commission about the first opposite party advising the complainant to consult any other doctor of his choice for second opinion. The contention that on the advice of the first opposite party the complainant consulted several other doctors is not sustainable. With equal force the contention of the first respondent that simultaneous consultation of other doctors caused ruining of the complainant’s knee joint does not hold water in the light of his admission in his cross examination that the medicine prescribed by the other doctors is supplementary. The respondent no.1 has
“It is true that the medicines prescribed by other doctors are supplementary and they do not cause any adverse effect on the medicines prescribed by me”.
47. In the light of his admission that the medicines prescribed by the other doctors have had no adverse effect on the medicine prescribed by him to the complainant, the first opposite party cannot contend that the simultaneous consultation of various doctors had adverse effect in improvement of ligament of the complainant during postoperative stage. However, it can be stated that the complainant having not informed the first opposite party, ought to have made the other doctors as party to the complaint or he could have examined them to show that the surgery performed upon him by the first opposite party was not warranted or it contributed to ruining of his knee joint.
48. She has opined that the complainant does not have significant neurological problem and his main problem is Trauma related Left Knee joint disease. The learned counsel for the complainant contends that the opinion of
49. Discharge summary (Ex.A28), the prescription of
“ This patient as admitted for evaluation of persistent pain in knee joint after ACL reconstruction. On evaluation it was O A both knee. For Neuropathic symptoms Patient is being discharged in stable state to be followed up in OP”.
50. ExA29
51. In the back drop of conflicting opinion of Neuro surgeons, the discharge summary of NIMS ExA28 would throw light on the post operative status of the complainant and the findings noted under the caption CLINICAL FEATURES , Investigations and Hospital Course reads as follows:
“ 38 year old male admitted with h/o pain and swelling in Lt knee joint since 11/2 year followed by Subsequent evaluation by orthopedics revealed partial tear of ACL, complete tear of PCL & Gr. He was operated ACL reconstruction was done 10 months back (outside) H/o. pain and swelling in both knee joints post operatively. No h/o. fever/constitutional symptoms/other joints pains/LBA/skin rash/eye complaints. No h/o.
Hematological: Hb-14.9, PCV-42.4, RBC-4.81, MCV-88.1, MCH-30.9, MCHC-35.0, TLC-8100, Pl.count-3.4, DLC-N-54, L-40, M-3, E-3, X-ray both knees-JSN+,
52. The learned counsel for the second opposite party has relied upon the following decisions:
1.Mrs.
2.Naseem Mohammad Bashir Ansari 2007-LAWS(NCD)-1-33.
3.Raj Kumar Gupta
4.A.S.mittal
5.Kusum Sharma and others
53. In The court discussed the duty of care a doctor should undertake:
a) A duty of care in deciding whether to undertake the case
b) A duty of care in deciding what treatment to be given
c) A duty of care in the administration of that treatment
"A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable."”
54. The National Commission has held that deletions and some errors in the medical record by itself would not establish deficiency in service on the part of the treating doctor and the hospital as follows:
“We have carefully gone through the material on record and found that there have been deletions, scoring off and some errors here and there at the staff (nursing) stage but the complainant
19. The main case of the complaint hinged on the administration of
20. After carefully going
55. In
“In this case post-mortem of the deceased was conducted and death was found to be due to cardio-respiratory failure, due to
6. In the absence of above, we do not find any merit in the appeal filed by the appellant and also no ground to interfere with the order passed by the State Commission.
56. Raj Kumar’s is a case where the first complainant who was partially blind underwent four surgeries at the hands of
27. (27) In
28. (28.) The Supreme Court of India in Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, or a duty of care in the administration of that treatment. A reach 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.
29. (29.) In this case, it is beyond doubt that doctor is a highly qualified and highly experienced surgeon. He had followed the time-tested procedures for correcting the vision of a partially blind patient. There is no doubt that the treating surgeon has exhibited reasonable skill and care in performing the surgeries. The treating surgeon when consulted by the patient performed the following duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, or a duty of care in the administration of that treatment. He has also brought to his task a reasonable degree of skill and knowledge and exercised a reasonable degree of care. In short we can say that he has passed
57. In postoperative infection of intraocular cavities causing complete damage to the operated eyes. The Apex Court held that there was composite negligence on the part of the surgical team which conducted the operation and authorities of the State Government who failed to ensure obedience to the norms and guidelines of the Government and organizers of the eye camp acting pursuant to and under the authority of the
58. In
“I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring 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 and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
59. A perusal of the documentary evidence coupled with the oral evidence of the complainant and the first opposite party and the affidavit of the executive of the second opposite party hospital would establish that the opposite parties had not exercised proper care during the pre-operative and post-operative stages of ACL reconstruction and thus rendered deficient service.
60. The complainant equally contributed to the ruining of his knee joints by not informing the treatment he received simultaneously from the other doctors and not properly following the instructions of the first opposite party particularly with regard to doing ACL rehabilitation exercises.
61. The complainant has not sustained any deformity on account of ACL reconstruction performed upon him by the first opposite party. The complainant obtained fitness certificate from the second opposite party and he has been attending to his duties. The complainant has not examined any of the other doctors who treated him nor did he implead them and he has not shown the circumstances to rule out their role in his present status. The role of the opposite parties is minimal when it comes to the amount to be awarded is to be quantified as compensation.
62. The second opposite party has contended that the first opposite party was its consultant and he stopped attending to the patients from October first opposite party has denied the plea of the second opposite party. He has stated:
“The opposite party no.1 humbly submit that he was appointed and designated by the opposite party no.2 hospital
63. Except stating that the first opposite party is not its employee, second opposite party-hospital has not adduced evidence to the effect that the first opposite party is its consultant and not an employee. The second opposite party-hospital is vicariously held responsible for the deficiency in service on the part of the first opposite party. Taking into consideration of the circumstances of the case, we are of the considered opinion that the complainant is entitled to an amount of `1
64. In the result the complaint is allowed against the first and the second opposite party. The second opposite party is directed to pay an amount of `1`5,000/-.
MEMBER
MEMBER
KMK*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant for opposite parties
NIL NIL
EXHIBITS MARKED
For complainant
Ex. A1 Photocopy of prescription dated 17.11.2006
Ex. A2 Photocopy of Outpatient card issued by NIMS, dated 22.01.2007
Ex. A3 Photocopy of MRI of my left knee joint, dated 21.02.2007
Ex. A4 Photocopy of Outpatient card issued by
Ex. A5 Photocopy of Outpatient card issued by
Ex. A6 Photocopy of bill for
Ex. A7 Photocopy of Outpatient card issued by
Ex. A8 Photocopy of bill issued by dated 17.03.2007
Ex.A9 Photocopy of Emergency Admission Certificate issued by
Ex.A10 Photocopy of Discharge summary issued by
Ex.A11 Photocopy of Outpatient card issued by
Ex.A12
Ex.A13
Ex.A14 Photocopies of Pharmacy detail issued by
Ex.A15 Photocopy of Pharmacy receipt issued by
Ex.A16 Photocopy of Outpatient card issued by
Ex.A17 Photocopy of Discharge Summary issued by
Ex.A18 Photocopy of Outpatient card issued by
Ex.A19 Photocopy of cash receipts issued by
Ex.A20 Photocopy of OPD patient’s record issued by Dr. pertain to me, dated 30.04.2007
Ex.A21 Photocopy of report of Dr.
Ex.A22 Photocopy of prescription issued by Sigma Hospitals, dated 18.05.2007
Ex.A23 Photocopy of MRI left knee issued by
Ex.A24 Photocopies of bills issued by
Ex.A25 Photocopies of bills issued by
Ex.A26 Photocopy of report of Dr.
Ex.A27 Photocopy of Outpatient card issued by NIMS, Hyderabad, dated 09.01.2008
Ex.A28 Photocopy of Discharge Summary pertain to issued by NIMS , Hyderabad, dated 08.01.2008
Ex.A29 Photocopy of prescription given by Dr. P. dated 15.03.2008
Ex.A30 Photocopy of prescription given by Dr. Santa dated 20.02.2008
Ex.A31 Photocopy of report issued by MD
Ex.A32 Photocopy of Outpatient card issued by
Ex.A33 Photocopy of Outpatient card issued by
Ex.A34 Photocopy of my Merit Certificate issued by President,
For opposite parties:
Ex.B1 Inpatient Record of
Ex.B2 Inpatient Record of
MEMBER
MEMBER
Dt.31.12.2012
KMK*
