Punjab

Ludhiana

CC/15/375

Gurjot Singh - Complainant(s)

Versus

Avasthi Bone & Joint Clinic & Hospital - Opp.Party(s)

M.S.Guman, Adv.

28 Aug 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.375 of 10.06.2015

Date of Decision            :  28.08.2017

Gurjot Singh son of Late Shri Jaswinder Singh, r/o House No.7, New Model Town, Ludhiana.

….. Complainant

Versus 

1.Avasthi Bone & Joint Clinic & Hospital, #135, Green Park, Opp.Prince Hostel, Civil Lines, Ludhiana.

2.Dr.N.D.Avasthi, M.B.B.S., M.S.Consultant, Orthopaedic Surgeon, c/o Avasthi Bone & Joint Clinic & Hospital, #135, Green Park, Opp.Prince Hostel, Civil Lines, Ludhiana.

3.United India Insurance Company Limited, Divisional Office No.1, 455, The Mall, Ludhiana through its Divisional Manager.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER          

COUNSEL FOR THE PARTIES:

For complainant               :         Sh.M.S.Ghumman, Advocate

For OP1 & OP2                         :         Sh.Ankur Ghai, Advocate 

For OP3                           :         Sh.M.S.Jassal, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                           Complainant sustained grievance injuries on his left leg after having met with an accident on 11.02.2012 and for treatment of same, he was admitted in Op1 hospital on the same day. After conduct of x-ray, it was found as if complainant suffered bicondylar fracture of left tibia. Ops decided to conduct surgery for fixing the fracture and the same was done on 12.02.2012. During course of operation, some plates and screws were implanted in the left leg of the complainant, so that complainant could stand and move properly. An amount of Rs.47,100/- was charged by OP1 and Op2 for this treatment, but Rs.26,323/- were incurred as expenses for purchase of surgical equipments by the complainant. These equipments were purchased by the complainant on the recommendations of OP1 and Op2. After surgery, the complainant was asked to undergo a course of physiotherapy and he had been undergoing that course regularly as per advice of OPs. An amount of Rs.37,000/- was spent on this course of physiotherapy, but despite that knee of the complainant remained deformed because same did not function properly. This knee could not straighten properly because the same could not bend beyond 90 degree. So, it is claimed that there remained a flexion of deformity of 10 degree and range of movement remained between 10-90 degrees. Besides, complainant was unable to bear the weight on affected leg because of suffered continuous pain day and night. Matter was continuously brought to the notice of OP1 and Op2, but they ignored. After about nine months, the complainant became depressed and desperate because of continuous pain and inability of walking. Complainant therefore decided to have second opinion from another Surgeon, who advised the complainant to undergo an MRI. After undergoing MRI, it was discovered as if the fracture was not properly fixed leading to the depression of bicondylar and subluxation of joint. This was perhaps in the knowledge of OP1 and OP2, but despite that they choose to ignore the same resulting in pain and suffering of the complainant. That act of OP1 and Op2 alleged to be an act of gross negligence and deficiency in professional service. MRI report dated 15.11.2012 suggested for further treatment of the complainant from the specialized hospital at Mumbai. Accordingly, complainant along with his family members after booking of the air tickets visited Mumbai. Complainant remained admitted in Mangal Anand Hospital, 48, Swastik Park, Chembur, Mumbai for treatment of diagnosis of ‘Mal united medical condyle left tibia with plate in Situ’. During this treatment at Mumbai hospital, the concerned doctors adopted procedure for Arthroscopic medical meniscectomy(partial) implant removal and the corrective osteotomy for malunited medial condyle of tibia, internal fixation    with plate under spinal anesthesia on 8.1.2014. Complainant incurred expenses of Rs.2,36,566/- for this treatment in Mangal Anand Hospital abovesaid. Besides, complainant had to spent amounts on different occasion during hospitalization stay at Mumbai, medication and also on account of fair for travel from Ludhiana to Chandigarh. An amount of Rs.4 lac under these heads was spent by the complainant. Though, complainant was to start walking normally within 3 to 4 months following surgical procedure, but on account of negligence on the part of Op1 and OP2 during surgery, he could not recover for more than one year. It is on account of this that complainant had to undergo further treatment. Complainant could not join his job and even could not get married. Complainant has got an MBA degree from Guru Nanak Engineering College and as such, he suffered loss of 30 months of salary of amount of Rs.6 lac. In all Rs.10 lac approximately were spent by the complainant due to negligent treatment provided by Op1 and Op2. By pleading deficiency in service and negligence on the part of OP1 and Op2 and after serving legal notice dated 29.11.2014, this complaint filed for seeking direction against Op1 and Op2 to pay Rs.10 lac on account of medical treatment expenses, but Rs.10 lac more on account of mental harassment and financial loss.

2.                           In joint written reply submitted by OP1 and Op2, it is claimed as if complaint is false, frivolous and vexatious; complainant has suppressed the true and correct facts from this Forum; complaint is barred by law and limitation because complaint filed after more than 3 ½ years after the performed surgery of 12.2.2012; complaint is not disclosing any cause of action because there was no professional medical negligence on the part of OP1 and Op2. Rather, it is claimed that OP1 and Op2 discharged the necessary legal obligation. It is also claimed that complainant arrived at premises of OP1 while being accompanied with by Dr.Ashok Gupta, a close family friend of complainant. Complainant and said Dr.Ashok Gupta were communicated and explained the entire exact condition of fracture as well as of treatment to be provided by OP1 and Op2. The outcome of the treatment was well explained to the complainant. Complainant was made aware with such like fractures, which are of the nature of ‘pasto-medical-condoyle fractures’ and to be treated in the manner explained to him. Complainant was even made aware that he has right to seek the second opinion. Complainant gave voluntary consent. Course of treatment was discussed with Dr.Ashok Gupta, who accompanied the complainant and thereafter, surgery was performed on left leg of the complainant as per surgical plan. During course of operation, plates and screws were implanted as demanded by the circumstances in the left leg of the complainant. The operation/surgery was performed as per highest standard of medical profession and there was no negligence in conduct of this surgery. Entire operation was performed in the presence of Dr.Ashok Gupta, who was personally monitoring the surgical procedure. After performance of the operation, the said Dr.Ashok Gupta congratulated Op1 and Op2 for successful surgery. It is claimed that OP2 is a respectable and experienced doctor, having performed 1000 of surgeries in the carrier spanning more than four years. The treatment offered to the complainant is the best option available as per medical science practice and procedure. There was no other mode of treating the fracture in question, than the one performed by Op1 and Op2 for getting better results. No physician/medical profesionist can assure full recovery. In case, any patient does not favourably respond to the treatment, then doctor could not be made straightway liable, particularly when no medical profesionist will perform the bad surgery because of involvement of his reputation of several decades. Nature of injury sustained by the complainant was such that he required regular medical checkup after surgery. Complainant was advised for such regular checkup from Op1 and OP2 after surgery by visiting every week. Complainant was advised not to put weight on leg on which surgery was performed. Even the complainant was strictly advised of getting proper physical physiotherapy treatment. However, on completion of surgery on 12.2.2012, complainant did not report for checkup with answering OPs for six weeks because he visited only on 20.3.2012. Even on that date of 20.3.2012, Op1 and Op2 brought to the notice of complainant that there was poor physiotherapy and he has not acted as per advice. After 20.3.2012, complainant never visited Op1 and Op2. As surgery was performed by Op2 to the best of his ability as an ordinary and well skilled orthopaedic surgeon and as such, there is no negligence on the part of answering OPs. As per medical science, it has been held that even with current techniques surgical managing the fractures of the nature of pesto medical condoyle, even bicondoyle fracture gets complicated because of some post operative reduction. As the age advances, the chances of depression in such like fractures also increases as per medical studies. In such like cases, there  is a high tendency towards post operative displacement because of invisible void in the metaphysical areas. Such chance is to the extent of 30%. Complainant suffered fracture of left knee-pesto medical condoyle left tibia which was displaced and unstable fracture. Such like fractures requires lifting and fixing of fractured joint, which necessitated surgery by lifting and fixing with plates and screws. It is claimed that such like fractures have got a tendency to get displaced after surgery, if the patient does not follow the instructions of not putting the weight on the fractured leg for about 12 to 18 weeks. Bones of knees are soft in nature. In case, weight to be put on the operated leg before the union of fracture, then there are high chances of displacement and depression. It is due to this that patient was advised to walk on crutches and to take care. When complainant appeared for check up after several weeks of discharge, then it was found that he had not followed the instructions and had started putting weight on the injured leg. Despite advice of regular physiotherapy, complainant did not turn up and such problems arose because of non-following of the advice by the complainant. There is no contribution of OP1 and OP2 in such problems. Union of bone might be delayed because of natural reasons even and same does not indicate negligence on the part of Orthopaedic surgeon. Complainant though guilty of own negligence, but he has tried to put the blame with ulterior motive on answering Ops for extorting money. OP2 is reputed Orthopaedic surgeon of more than 45 years practice and he had been head of Ortho department of CMC Hospital before starting his own clinic. OP2 claims himself to be highly reputed Orthopaedic surgeon of the city. From the documents submitted by the complainant regarding MRI, it is made out as if the referral doctor is Dr.Thomas, who  to the    knowledge of answering OP, is a physiotherapist and not an orthopaedic surgeon. It is claimed as if complainant has not got any opinion from any orthopaedic surgeon. There is no report or record to show that surgery was performed in negligent manner by answering Ops. Further as per medical science study of Orthopaedic, any corrective surgery has to be performed after a particular surgery has been done within six months and recovery after the corrective surgery takes place ordinary after six months. So, if the complainant had to undergo some corrective surgery, then he should have got done by end of year 2012. Result of corrective surgery would have appeared and shown by mid of 2013, but the present complaint is filed in June 2015 with afterthought versions just for blaming the answering Ops. Besides, it is claimed that answering Ops are duly covered by professional doctor indemnity policy of United India Insurance Company Limited through policy NO.200700/46/11/35/00000493. Current policy held by OP1 and OP2 bears No.200700/46/14/35/0000408. Admittedly, complainant approached OP1 and OP2 on 11.2.2012 due to his sufferance from left knee poster medical condoyle left tibia, which was displaced and unstable fracture. Treatment was provided as referred above. Each and every other averment of the complaint denied.

3.                 OP3 i.e United India Insurance Company Limited was impleaded vide order dated 24.8.2015. OP3 contested the claim of complainant by filing written reply by claiming as if complaint being time barred, merits dismissal; complainant has no cause of action and that complaint is filed in attempt of extorting money from Ops. Op2 Dr.N.D.Avasthi had taken indemnity doctors policy bearing No.200700/46/11/35/00000393 for period from 22.11.2011 to 21.11.2012 retroactive dated 16.7.2007 from OP3. It is claimed that complainant is guilty of misleading this Forum by suppressing of true and correct facts. Same reply virtually is given through this written statement as is reply given in detail by Op1 and OP2 regarding coming of complainant in the company of Dr.Ashok Gupta to OP1 and OP2 and of due conduct of surgery by OP2, to the best of his ability and as per due medical standards and norms. As all the pleas in this respect are the same as are in the written reply by OP1 and OP2 and as such, those need not be reiterated for the sake of brevity. 

4.                 Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C30 and thereafter, he along with his counsel closed the evidence.

5.                 On the other hand, counsel for the OP1 and OP2 tendered in evidence affidavit Ex.RA1 of Dr.N.D.Avasthi(OP2) along with documents Ex.R1 to Ex.R7 and thereafter, closed the evidence.

6.                 Counsel for OP3 tendered in evidence affidavit Ex.RA3 of Sh.H.S.Bedi, Divisional Manager of OP3 along with documents Ex.R1/A to Ex.R8/H and then closed the evidence.

7.                           Written arguments not submitted by any of the parties. Oral arguments by counsel for parties addressed and those were heard. Records gone through minutely. 

8.                 Ex.C1 is the discharge card of the complainant regarding getting of his treatment from Op1 hospital through OP2, Dr.N.D.Avasthi. This Ex.C1 shows as if complainant got treatment during period from 11.2.2012 to 20.2.2012 for diagnosis of bicondylor fracture of left tibia. Kind of treatment provided mentioned     as OR/FC Tibian Lock (plates + screws) and knee brace even was recommended and for follow up treatment, advice was tendered to the complainant by recording notes in Ex.C1 itself. Ex.C2 is the bill showing as if complainant paid Rs.47,100/- to OP1 and OP2 as treatment charges consisting of operation/plaster fee, theatre charges; anesthesia fee; bedroom/service charges etc. However, for implant charges, separate bill is there as per endorsement in Ex.C2 itself. That bill of implant purchases of worth of Rs.26,300/- is produced on record as Ex.C6. So, this record certainly establishes that complainant paid Rs.47,100/- as hospitalization charges and even incurred expenses of Rs.26,300/- as implant costs charges. Even if these amounts may have been incurred as expenses on treatment and implant by the complaint, but despite that it is for the complainant to prove that there was negligence in conduct of operation during period from 11.2.2012 to 20.2.2012.

9.                 Case of OP1 and OP2 is that complainant after undergoing surgery on 12.2.2012 remained admitted in hospital of OP1, but thereafter, he did not turn up for follow up treatment until 20.3.2012. It is the claim of OP1 and OP2 that complainant has not turned up for due follow up treatment or advice during period from 20.2.2012 to 20.3.2012. However, perusal of receipt Ex.C5, of charging of amount of Rs.300/- by OP1 hospital, from the complainant shows as if complainant visited that hospital on 26.2.2012. So, certainly plea taken in the written statement is incorrect that the complainant has not visited OP1 or OP2 during period from 21.2.2012 to 20.3.2012. Even if this plea may be false, despite that same can at the most be taken as a circumstance for finding as if Ops not disclosing the truth, but the same itself will not establish the medical negligence in conduct of operation by Op1 and OP2 because as per law laid down in cases titled as Ashok Kumar Choudhary Vs Shashi Bhushan Singh 2004(2) CLT 68 (Bihar State Consumer Disputes Redressal Commission, Patna); Mohd. Istiqar Vs Rajesh Gupta 2005(3) CLT 216 (Uttaranchal State Consumer Disputes Redressal Commission, Dehradun); R.P. Sharma Vs Handa Nursing Home and another 2004(11) CLT 251 (Delhi State Consumer Disputes Redressal Commission, New Delhi) and Marble City Hospital and Research Centre and others Vs V.R. Soni 2004(2) CLT 435 (Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal), it is for the patient to establish his case of medical negligence. Negligence has to be established and cannot be presumed as per these cited cases. Further as per these cited cases, complainant has to produce expert medical opinion for proving negligence of a doctor. It is also held in these cases that there may be one or more methods of treating a patient by two different qualified doctors and if one of those method is adopted by a doctor in good faith, but that method does not work out resulting in death of patient, then due to that alone negligence of the doctor cannot be inferred. In the absence of any expert evidence that there has been wrong diagnosis by the doctor, inference of wrong treatment or of negligence of doctor cannot be drawn. As the inference of negligence or deficiency in service on the part of Op1 and OP2 cannot be presumed and as such, it is for the complainant to establish that deficient or negligent treatment was provided to him by the doctors concerned. Proof in that respect can be adduced by examining expert. No expert in this case has been examined by the complainant and moreover the documentary evidence produced on record does not point out the negligence or deficiency in service in providing treatment by OP1 and OP2 as discussed in detail hereinafter and as such, certainly complaint deserves to be dismissed.  

10.               No allegation levelled against OP2 that he is not                    possessed of the requisite skill of being a qualified doctor. Rather, contents of Ex.C7 establishes that OP2 possess MBBS and MS Degree and has remained consultant Orthopaedic Surgeon and formerly Reader as well as Head of Orthopaedic Unit at CMC & Brown Hospital, Ludhiana. Even OP2 remained as Senior Consultant Holy Family Hospital, New Delhi as per stamp endorsed on Ex.C7 and Ex.C8.

11.               So, certainly OP2 being Orthopaedic Surgeon was possessed of the qualification of performing the operation in question. In view of this, it is for the complainant to establish that OP2 did not exercise reasonable competency in conduct of operation on knee of the complainant or that Op2 did not exercise the reasonable care and caution in conduct of such operation. However, nothing in the complaint or in the submitted affidavit mentioned as to how OP2 did not exercise the reasonable competency or how he did not exercise the due care and caution at the time of conduct of operation in question. In the absence of proof of these circumstances and in the absence of production on record any material of any expert opinion to establish as to how OP2 remained negligent in conduct of operation in question, it has to be held that the complainant has failed to establish as if any deficiency or negligence was there on the part of OP2 in conduct of the operation in question. 

12.               Perusal of Ex.C7 to Ex.C11 reveals as if complainant visited OP1 and OP2 on 20.3.2012, when Rs.400/- was charged as x-rays fee from him through Ex.C11. Even x-rays fee of Rs.400/- was charged from the complainant on 24.4.2012 is a fact borne from the contents of receipt Ex.C9. Besides, consultation fee of Rs.300/- was charged from the complainant on 24.4.2012 itself through receipt Ex.C10 and thereafter, advice for physiotherapy was tendered to the complainant through prescription slip Ex.C8. Similar advice for physiotherapy was tendered to the complainant on 20.3.2012 as revealed by contents of Ex.C7. So, this evidence available on record establishes as if complainant not only visited OP1 on 20.3.2012 or on 26.2.2012, but he even visited on 24.4.2012. As x-rays on 20.3.2012 and 24.4.2012 were taken by OP1 and OP2 of operative knee portion and as such, it is contended by counsel for complainant that OP2 must have disclosed the complainant about healing position of fractured knee portion. That progress certainly disclosed to the complainant because in prescription slip Ex.C7 of date 20.3.2012, it is mentioned as if P.O. must be applied for six weeks, but in Ex.C8 of date 24.4.2012, it is mentioned as if it should be applied for 1 ½ months. Range of flexibility 40-70 is mentioned in Ex.C7, but the same mentioned as 15 to something in Ex.C8. In view of these entries in Ex.C7 and Ex.C8, it is made out that advice to the complainant for physiotherapy was tendered by OP1 and OP2 on both dates of 20.3.2012 and 24.4.2012 and even the range of flexibility was disclosed to him. No record produced by the complainant to prove that he underwent physiotherapy after availing advice from OP2.                                   The record of prescription slips and of the                                                           bills of purchase of medicines and fitted implants alone has been produced. Ex.C3 to Ex.C5 is the record of bills of purchased medicines, whereas Ex.C6 is the record of purchase of fitted implants, but Ex.C9 to Ex.C11 is the record of charges of x-ray or consultation fee, whereas Ex.C12 is MRI Study report of left knee joint dated 15.11.2012, but Ex.C13 is the record of emails and Ex.C14 as well Ex.C15 is the record of room booking charges or of travel by air on 19.12.2013 and 28.4.2014 to Mumbai. Ex.C16 is the record of discharge notes of treatment of complainant from Mumbai hospital during period from 7.1.2014 to 14.1.2014, whereas Ex.C17 to Ex.C20 is the record of purchase of medicines during treatment of the complainant in 2014 at Mumbai. Ex.C21 is the receipt showing payment of Rs.2,36,566/- by the complainant to Mangal Anand Hospital, Mumbai on 14.1.2014, whereas Ex.C22 is the bill of that Mangal Anand Hospital, Mumbai, and Ex.C23 is the record of purchase of T’Buttress plate etc, but Ex.C24 is         the record of purchase of air tickets from Mumbai to Chandigarh and Ex.C25 is the bill of Maharaja Inn Hotel at Mumabi of May 2014. Ex.C26 to Ex.C28 is the record of photographs of the room where the complainant and his attendant stayed in Mumbai, whereas Ex.C29 and Ex.C30 are photostat copies of record of diagnose of 29.1.2015 of complainant. Nowhere in this record, it is mentioned that there was any negligence found in conduct of operation in question by OP2 in February 2012. This record even do not establish that the complainant got the requisite physiotherapy treatment from centre of OP1 or of any other approved physiotherapist as per advice of OP2 tendered twice i.e. on 20.3.2012 and 24.4.2012 as referred above. In view of non-production of this proof, submissions advanced by counsel for Op1 and OP2 has force that complainant failed to prove that he acted as per advice of Op2 for getting the physiotherapy treatment, paving the way for the due healing of the operated fractured bone portion. In the absence of production of any record in this respect, it has to be held that complainant failed to establish that he by acting on the advice of OP2 got due physiotherapy treatment. If that be the position, then possibility of further deformation like that of improper straightening may have taken place due to fault of complainant   himself. Possibility in this respect cannot be ruled out.  This is the circumstance showing as if the pointed      out deformation may have  occurred due to fault of the complainant himself         in not getting the due physiotherapy treatment. That fortifies the claim of OP1 and OP2 to that extent. So much so, no bill of bearing of expenses of Rs.37000/-on the course of physiotherapy treatment has been produced, despite assertions in       para no.3 of the complaint in that respect. Name of physiotherapist, from whom this physiotherapy treatment got by the complainant even not mentioned and nor the duration of said course mentioned in the complaint or in the affidavit and as such, in the absence of all this, it has to be held that vague and general allegations levelled regarding bearing of expenses of Rs.37,000/- on taking the course of physiotherapy. As and when general and vague allegations like this are levelled, then the case of the party concerned becomes unbelievable and that is why it is found as if complainant failed to prove that he got physiotherapy treatment at any time as per advice of OP2 tendered at least twice to him.

13.               MRI Study of left knee joint replacement report Ex.C12 is date of 15.11.2012 and as such, virtually this report got by the complainant after more than 8 months of undergoing operation in question. Perusal of this report Ex.C12 reveals that the metallic artifacts and improper fat suppression were noted due to screw and plate fixation device in proximal tibia. Improper fat suppression may be due to lack of due physiotherapy treatment and as such, this report in no way points to the negligence in conduct of operation by OP2, particularly when this report obtained after more than 8 ½ months of the undertaken operation by the complainant. The meniscal anatomy was found distorted due to the fractured fragments in the report Ex.C12. How distortion of meniscal anatomy took place qua that no material produced on record and nor any expert advice obtained by the complainant from any doctor, has been produced on record. However, in this report Ex.C12 itself, it is mentioned that fractured fragments have jointed and if that    be the position, then due fixation through screw and plate may have provided to the bone way for union of the fractured fragment. However in report Ex.C12, the significant depression of mid and posterior part of the medial tibial plateau was found as 8 MM. The body of medical meniscus shows abrupt angulations and distortion at the level of the depression as per contents of Ex.C12. In view of finding of significant depression of posterior aspects of both tibial condyles reported through Ex.C12, it is vehemently contended by counsel for complainant that fault lay with OP2 in not taking due care of due fixation of screw and plate. However, the complication arising from the treatment of bicondylar fractures and Ao/OTA C-3 are denoted in the medical study contained in Rockwood & Green Frackwin Book-Volume II, the photostat copy of whose page No.1823 produced on record as Ex.R3.

14.               The Bicondylar fractures are treated with a pattern requiring implants on both sides with a combination of the two approaches namely anterolateral for the lateral side injury and posteromedial for the medical side injury as per Ex.R3. As per case of OP1 and Op2, complainant suffered fracture on left knee + pesto medical condoyle left tibia which was displaced and unstable fracture and that is why lifting and fixing of fractured joint was required through surgical operation. This lifting and fixing was done with the help of plate and screw as per case of OP1 and Op2 and as per submitted affidavit Ex.RA1 of Dr.N.D.Avasthi. Even as per contents of Ex.R3, for the posteromedial approach, the medial side fractures are reduced and fixed first with the leg externally rotated. Further as per Ex.R3, it is critically important to reduce the medial side as accurately as possible because it is the first step in a sequential procedure, of which, the end result is to have a well reduced and aligned knee. Even as per Ex.R3, during plating, care must be taken that posteromedial screw paths do not interfere with the subsequent lateral side procedure. In addition efforts should be made to be conservative with the amount of fixation screws, recognizing that there will be plates on both sides. 3.5mm implants are usually sufficient and locking screws are rarely necessary or helpful as per Ex.R3. Adoption of this procedure contended to be not disclosed through Ex.C1=Ex.R2/G and as such, it is vehemently contended by counsel for complainant that OP1 and OP2 failed to prove as if due treatment was provided. That submission of counsel for complainant has no force because perusal of Ex.R4, the copy of Code of Medical Ethics Regulations, 2002 establishes that as per clause 3.1, every physician shall maintain the medical records pertaining to his/her indoor patients for a period of 3 years, from the date of commencement of the due treatment in a standard proforma laid down by the Medical Council of India. Operation in this case was performed on 10.2.2012 and the discharge of complainant took place from the hospital of OP1 and Op2 on 20.2.2012 and as such, record of treatment was required to be maintained by OP1 and OP2 at least up to 20.5.2015 and not beyond that. However, this complaint filed on 10.6.2015 and as such, if records of operation notes maintained by Ops not produced, then  fault in that respect with Op1 and Op2 cannot be found. Rather, procedure           of treatment disclosed by OP2 through his affidavit Ex.R1/A is inconsonance   with the kind of treatment required as per medical standard mentioned in Ex.R3 referred above.

15.               Even as per contents of Ex.R3, the evidence indicates that even with the current techniques, surgically managing these fractures is frequently complicated by losing some of the reduction postoperatively. In one study, 31% of operated knees had loss of position after surgical treatment, and in patients older than 60, this percentage rose to 79%. Further, as per Ex.R3, the clinical significance of loss of reduction is uncertain, but when it leads to malalignment, then patient outcome may be compromised. That malalignment owing to conduct of OP2 is not established by any evidence produced on record by the complainant. However, as the frequency of complication losing some reduction post operatively is to the extent of 31% and as such, if the alignment of knee of complainant post-operatively varied to the extent of 10% as per his own claim, then it is due to occurrence of natural complications. As the reduction in fixing may be to the extent of 31% in operated knee cases as per medical study Ex.R3 and as such, if this reduction post operatively has taken place in the case of complainant, then it is due to natural post-operative complications. Being so, fault on the part of OP2 cannot be found, even if there have been some complications due to depression of mid and posterior part of the medial tibia plateau.

16.               Much reliance placed on email correspondence Ex.C13 addressed by Dr.Ashok Gupta to Mumbai Hospital for arguing that even                       Dr.Ashok Gupta on checking the case of complainant found as if OP2, being a surgeon while conducting the operation, was negligent in not lifting the depressed coronal fracture of the medial condyle and that is why flexion deformity of 10 degrees with ROM 10 to 80 degrees with pain, took place. Though in Ex.C13, it is mentioned that complainant had been undergoing physiotherapy since from the treatment got by him from the hospital of OP1 through OP2, but record of that physiotherapy has not been produced and nor the doctor, in whose physiotherapy treatment complainant remained named or produced or his certificate produced and as such, contents of Ex.C13 regarding complainant undergoing physiotherapy treatment may be afterthought version. After going through Ex.C13, it is made out as if probability of surgeon unable to lift the depressed coronal fracture of the medial condyle alone was expressed. That expression of probability will not prove the act of medical negligence on the part of OP2 because assumptions and presumptions can never take place of proof. On what basis this probability worked out through Ex.C13 qua that no evidence adduced and nor in Ex.C13, it is mentioned as to what steps were required to be taken by OP2, but what were not taken by him in conduct of operation and as such, it is obvious that probability of inability of OP2 to lift the depressed coronal fracture of the medial condyle worked out without finding the actual position under which the operation was performed. Being so, just on the strength of Ex.C13, it cannot be held that OP2 was negligent in conduct of operation in question, particularly when Dr.Ashok Gupta, who sent email Ex.C13 not examined and nor his affidavit tendered in evidence and nor the written opinion obtained from him tendered in evidence. Moreover, discharge notes Ex.C16 and Ex.C22 of Mumbai Hospital qua treatment of complainant do not disclose at all that there was any fault in the conduct of operation in question by OP2 in February 2012. Rather, after going through Ex.C16, it is made out that advice for physiotherapy was tendered to the complainant even after his treatment by Mumbai Hospital during February 2014. Continuous walking of the complainant with walker support with push back splint was advised through Ex.C16 to the complainant. Even through Ex.C16, complainant was advised to send dicom images of knee with tibia ap, lateral (shoot through lateral in max extension) on January 22, 2014 and then again on after every three weeks interval period. Procedure of treatment by the complainant in Mumbai Hospital was got for implant removal from tibia as well as for corrective osteotomy for malunited medial condyle of tibia, internal fixation with plate under spinal anesthesia on 8.1.2014 and as such, certainly treatment by the complainant in Mumbai Hospital was got after about two years of performance of the operation by the OP2 on complainant in February 2012, but for corrective measures. Reasons for these corrective measures are not disclosed  anywhere in Ex.C16 and as such, the produced record in no way establishes that Op2 was negligent in any manner in conduct of operation in question in February 2012. Rather, contents of Ex.C16 establishes that claim of Op1 and OP2 is correct that the complainant must not have put weight on the fractured portion for some time after conduct of operation by Op2. Even contents of Ex.C16 fortifies the claim of OP1 and OP2 that complainant must have undergone physiotherapy for due healing because such physiotherapy essential for due healing after post operation. Ex.R2/B, Ex.R3/C, Ex.R4/D, Ex.R5/E, Ex.R6/F, Ex.R7/G and Ex.R8/H are the documents also produced by the OP3, but reference of these documents             not required, particularly when the reference to these documents placed on    record as Ex.C1, Ex.C6 to Ex.C8, Ex.C12, Ex.C16 and Ex.C22 has already been made. The kind of procedure adopted by Op2 in treatment provided to the complainant is inconsonance with the prescribed medical standard referred in Ex.R3 and as such, certainly complainant unable to establish as if Op2 was careless or negligent in any manner in performing the operation in question or that Op2 did not take due care and caution while performing the operation in question.

17.               Even as per law laid down in case titled as Shashi Bala vs. Chahal Hospital(Multi Speciality Hospital)-2015(3)CLT-159(Punjab State Consumer Disputes Redressal Commission, Chandigarh), the complications are accompanying part of any operation/surgery and they could occur to any person at any time. A surgeon never undertakes to cure fully a person and he can exercise his best care for the welfare of the patient and he cannot guarantee the hassle-free system to the complainant. In view of this, expert report is relevant under section 45 of the Evidence Act for deciding the controversy as to whether a case of medical negligence is made out or not. That expert opinion or expert report not got produced by the complainant as discussed in detail above and as such certainly submissions advanced by counsel for Ops has force that Op2 could not have taken guarantee of hassle-free treatment. Rather, the post operative complications arose as per medical norms and standards as discussed in detail above in this case before us and as such, complainant failed to establish the medical negligence on the part of OP1 or OP2.

18.               As per case titled as M.G.Sharma vs. Alchemist Hospital and others-2014(4)CLT-15(Haryana State Consumer Disputes Redressal Commission, Panchkula), a physician cannot assure the patient full recovery from the disease and as such, if patient has not favourably responded to a treatment given by a doctor or surgeon, then due to that alone, medical negligence of doctor concerned cannot be found straightway by applying the doctrine of res ipsa loquitur. No evidence adduced in this case for showing that OP2 intentionally committed any act or omission for causing injury or harm to the complainant while performing the operation in question and even the act of negligence not proved by any evidence and as such, certainly it is a case of failure on the part of complainant to prove the medical negligence on the part of OP2, because that medical negligence cannot be inferred just on account of post operative normal complications as referred above.

19.               Non union of fracture is an accepted complication following fracture surgery as per law laid down in case of Satender Kumar vs. Indraprastha Apollo Hospital and another-2017(1)CLT-13(N.C.). Even if bending of inserted rod in the long bone is not due to negligence of orthopaedic surgeon, then blaming the doctor for acceptable complication is improper as per ratio of this case. Ratio of this case is fully applicable to the facts of the present case before us because the routine complication of slight rotation of fixation occurred in this case and depicted after long gap of one year from the date of conduct of operation by the complainant through Dr.Ashok Gupta and as such, inference of medical negligence on account of that alone cannot drawn. Reputation of OP2 also was involved and as such, definitely he would not have done any act in negligent manner in conduct of operation in question. This circumstance also leans             in favour of holding as if Op2 would have taken due care and caution in conduct of operation in question. Submission advanced by counsel for complainant to the effect that intimation of wrong calcification of fractured bone deliberately not provided by OP2 to the complainant, despite receipt of report Ex.C12, but that fault pointed out at Mumbai through Ex.C16 only and as such, inference of negligence on the part of OP2 should be drawn. That submission again has no force because range of flexibility already was disclosed by Op2 to the   complainant through Ex.C7 and Ex.C8 discussed in detail above and that range of flexibility accepted due to post operative complications as disclosed through Ex.R3 discussed in detail above. So, it is not a case, in which, Op2 suppressed any facts from the complainant till his visit until 24.4.2012 to him(OP2). If the prescription slips were not used to be issued by Op1 or OP2 to the complainant despite payments, then due to that alone, case of medical negligence in the  absence of expert opinion is not made out as discussed in detail above. Rather after charging of x-ray fees on 20.3.2012 and 24.4.2012, result of range disclosed through the relevant prescription slips Ex.C7 and Ex.C8 as discussed in detail above and as such, fault with Op2 cannot be found due to non handing over of the x-  ray reports to the complainant because there is no allegations in the complaint that despite demand of these x-rays films, those were not handed over to the complainant. As inference of medical negligence on the part of OP2 cannot be drawn in view of above discussion and as such, none of Ops entitled to pay any compensation amount. So, complaint merits dismissal.

20.               Therefore, as a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

21.                         File be indexed and consigned to record room.

 

 

                      (Param Jit Singh Bewli)                  (G.K. Dhir)

            Member                                             President

Announced in Open Forum

Dated:28.08.2017

Gurpreet Sharma.