Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 73 /2012 (19.03.2013)
Smt Shashi Bala Gupta w/o Sh. Sat Sagar Gupta
R/o 16/918-E, Ganesh Gali, Tank Road,
Karol Bagh, New Delhi …Complainant
Versus
OP1- BLK Super Speciality Hospital
(Dr. BL Kapur Memorial Hospital)
Pusa Road, New Delhi-110005.
OP2-Dr. Rakesh Mahajan (MS DNB, MCH (Ortho.)
R/o 26/7, East Patel Nagar, New Delhi
Also at : C/o BLK Super Speciality Hospital
Pusa Road, New Delhi-110005.
OP3- Dr. Ishwar Bohra,
C/o BLK Super Speciality Hospital
Pusa Road, New Delhi-110005. ...Opposite Party
Senior citizen's Case
Date of filing: 19.03.2013
Coram: Date of Order: 03.06.2024
Shri Inder Jeet Singh, President
Ms.Rashmi Bansal , Member -Female
ORDER
Inder Jeet Singh , President
This case is scheduled today for Final Order.
1.1. (Introduction to case of parties) –The complainant has grievances of medical negligence, deficiency of services as well as providing of implant of sub-standard quality when the complainant was operated in OP1-Hospital by its treating doctors. The complainant had to undergo second surgery as the rod/implant put during first surgery was bent down during walking, it was because of cheap quality of implant as well as it result into second surgery. That is why the present complaint against OPs for recovery of Rs. 12,50,000/- (which includes the amount of Rs. 1,19,991/- and of Rs. 1,32,361/- of bills of hospitalisation of the first surgery and of the second surgery besides consultation, medication, nursing, attendance, visits, diet/bed/room charges, equipments other charges, compensation).
1.2. The OP1-Hospital, the treating doctors - OP2 & OP3 have filed their respective written statements and they deny all the allegations that there was no negligence nor the implant was of sub-standard quality nor there was any deficiency on their part. The first surgery was uneventful, she was discharged but subsequently the complainant of her own fell down at home, she could not keep balance of her body and the weight was twisted on that operated limb, which was stressed it. Thence, she had reported in the emergency and as per protocol, the second surgery was warranted and she was operated upon, another implant was put during surgery and this was also uneventful. The circumstances are clear that the patient was given due attention, proper treatment and care. The complaint is liable to be dismissed.
1.3. Initially, the complaint was filed against OP1, OP2 & OP3, however, the OP2/Dr. Rakesh Mahajan filed an application that he has obtained an insurance policy from United India Insurance Co. Ltd. [to indemnify professional risks cover] and by order dated 10.11.2014 on that application, the OP4 was impleaded in the array of parties.
However, the OP4 has opposed the complaint that the complaint does not contain any allegations against OP4 nor the OP4 is liable for any amount for want of cause of action against it. The name of OP4 is not a necessary/proper party.
1.4. The pleading of the parties are the complaint, the written statement of each OP and then replications of complainant being reply to the written statements. It is relevant to mention that complainant Smt Shashi Bala Gupta had authorized her husband Shri Sagar Gupta, to appear for and on her behalf, the complaint was also signed by him as an attorney of complainant.
1.5. However during the pending of complaint (but after evidence is over), the complainant expired on 01.08.2020; her legal representatives were brought on record, they are shown in the array of parties; Shri Sagar Gupta is one of them.
2.1. (Case of complainant) –On 30.10.2012 the complainant was hospitalized in the hospital of OP1, since she suffered fracture in her right upper thigh due to fall/twist during her walking. OP1- hospital and its doctors conducted several tests, she was diagnosed of “fracture shaft right femur” and on their advises, the complainant was operated upon (“closed interlock nailing”), a rod was implanting in her right leg. She was discharged on 03.11.2012. The complainant paid bill of Rs. 1,19,991/- against bill no. 12-13CR10023 dated 03.11.2012 besides other charges. The complainant was assured by the OPs that the implant/rod would last for life time in good condition and she will lead normal life.
2.2. However the complainant was in great discomfort and constant pain after the operation, she suffered from fever continuously, that is why she was readmitted on 29.11.2012 in the hospital of OP1. The OPs conducted several tests and the rod implanted by them in the first surgery was found bent and twisted, one screw was also found left unfixed by mistake besides adhesive was not applied. Thus, on the advices of OPs, the complainant was operated again on 30.11.2012 and new rod was inserted in her right leg; she was discharged on 04.12.2012. The complainant paid bills of Rs.1,32,361/- against bill no.12-13CR11314 dated 04.12.2012 besides other payments. The complainant was again assured by the OPs that the implant/rod would last for life time in good condition and she will lead normal life.
2.3. However, the complainant was continuously in great discomfort in pain even after second operation and several physiotherapy sessions. She is suffering from deformity and post-operation complication till date, she is unable to move and bed ridden. It clearly shows that the rods/material used by OPs was of very poor quality and the procedure followed was not up-to the mark. Moreover, the complainant got her examined through other medical practitioners; they also confirmed that there was use of sub-standard material and medical negligence in operation.
2.4. The complainant pointed out to the OPs of her all the grievances, medical negligence and of her under the pain due to post-surgical complications, but OPs paid no heed. She suffered tremendous anxiety, physical and mental agony besides financial losses by spending a lot. There is medical negligence, deficiency of services and unfair trade practice on the part of OPs, which has caused harassment and humiliation to the complainant, for which the OPs are liable. They were sent legal notice dated 15.01.2013 but no result. That is why the complaint for amount of Rs.12,50,000/- as damages/compensation and Rs.5,500/- towards notice charges besides cost of the complaint and other relief.
2.5. The complaint is accompanied with copies of – power of attorney dated 19.03.2013 in favour of Sh. Sagar Gupta, discharge summary of 03.11.2012, final summary bill, second discharges summary of 04.12.2012, final summary bill, besides other memos/bills/receipts of expenses incurred and legal notice dated 15.01.2013 with postal receipt and acknowledgement.
3.1 (Case of OP1) -The OP1 filed its detailed reply under the signature of its Medical Superintendent Dr. Sanjay Mehta and opposed that there is no negligence or medical negligence or unfair trade practice or providing of rod of sub-standard quality, therefore, the complaint is without cause of action and it is liable to be dismissed. The complaint is baseless and it is filed under presumptions, without any scientific proofs. There is no expert view of specialist on the suibject; therefore, complaint is liable to be dismissed. The complaint is not maintainable in the absence of expert opinion. It is settled in Martin F. D’souza Vs. Mohd. Ishfaq 1 2009 CPJ 2 (SC) that in case of medical negligence the matter should be referred to competent doctor/committee of doctors, who was specialized in the field for appropriate opinion. Thus, in the absence of expert opinion the complaint is not maintainable and it is liable to be dismissed. The allegations against the OP1 are vague, which do not constitute deficiency of services or medical negligence.
3.2. A medical practitioner faces an emergency and ordinarily it tries its best to redeem the patient out of sufferings, the medical practitioner does not gain anything if acting by negligence or omitted to do an act.
On 30.10.2012 the complainant was admitted in the hospital, she was suffering from severe pain; she injured herself after a twisting injury to the right thigh with inability to bear weight over the right leg, however, after check up, she was diagnosed of fracture of subtrochanteric femur shaft right side. She was taken to emergency and operated for internal fixation with interlocking nailing. It was successful operation. She was discharged on 03.11.2012 and at that time her condition was satisfactory and she was recovering well. The complainant was advised, at the time of her discharge, for non-weight bearing and also for walking with walker at home, taking antibiotic, physiotherapy and treatment for osteoporosis. The complainant was recovering well after successful discharge on 03.11.2012 after the surgery but on 29.11.2012 she fell on ground at home and she had sustained injury over right thigh. Thus, she came again hospital with that complaint. However, the complainant has concealed this fact but false complaint is filed as and after though to extract money from OPs.
On 29.11.2012, the x-ray was done, it was showing shaft of femur with broken nail at right side, the complainant was advised for re-surgery and then with the consent of family members of complainant, re-surgery was performed on 30.11.2012. She was diagnosed of re-fracture and she was operated without any delay for internal fixation with interlocking nailing to secure healing and post operatively the complainant recovered well and then she was discharge successfully.
3.3. So far surgical procedure is concerned, it is well known that an implant can break with undue stress or fall or significant osteoporosis. The complainant fell on the ground at her home and sustained the injury over right thigh, she was suffering from problem of osteoporosis and that for reason only, the rod was inserted since the previous rod inserted got bent and twisted.
A surgeon does not become an actual Insurer; he is bound to invoke sufficient skill and knowledge of his profession. The OP is well qualified in his field and it has adopted the best course of action possible for diagnosing the problem of complainant. In case some accident or variation in the frame of a particular individual an injury happens, it is not fault of medical man; the skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the complainant to prove that the doctor was negligent in the line of the treatment. A professional may be held liable on one of the two findings- either he was not possessed the requisite skill or he did not exercise with reasonable competence in the given case, however, the same are not applicable. However, it is not the case in the present complaint, there is no proof of negligence or deficiency of services and OPs cannot be held liable. The legal notice is also not maintainable. The complaint is liable to be dismissed.
4.1.1 (Case of OP2)- The OP2 also opposed the complaint by filing detailed written statement and the facts, features and circumstances narrated in the written statement of OP1 are also the fact, features and other record in the written statement of OP2. Besides, the OP2 is a well qualified in his field. He has adopted best course of action possible for diagnosing the problem of complainant.
4.1.2 In addition, the OP2 supplements that as per section 14 (ii)(d) of the Consumer Protection Act, the compensation can be awarded only in cases when it is proved that there is deficiency of services on the part of OP and it result into loss or injury to the complainant. But there is no negligence or deficiency of services on the part of OP2. The complaint is abuse of process of law/provisions of the Consumer Protection Act 1986 since the complainant has raised arbitrarily and inflated claims while knowing that no court fee is payable. It is also settled law that as per law of negligence, the professionals are included in the category of persons professing some special skill or as skilled person generally. Accordingly, such professional impliedly assures the persons dealing with him that the skill which he processes to possess shall be exercise with reasonable degree of care and caution; but he does not assure his client of the result. Similarly, a physician would not assure the patient of every recovery in every case. A surgeon cannot, also does not, guarantee that the result of surgery would invariably be beneficial, muchless to the extent of 100% for the persons operated upon.
Further, a case of occupational negligence is different from one of the professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of medical professional. The OP2 is also relies upon the statement of law in Bolam’s case (1956 to All ER 118), which was been widely accepted decisive of standard of care required both of professional man generally and medical practitioner is particular. Thus, by merely making of allegations of negligence would not be to help to complainant, rather she is bound to prove the allegations by expert evidence or opinion that too beyond reasonable time. The complaint is liable to be dismissed.
4.2 (Case of OP3)- The written statement of OP3 is replica of written statement of OP2. Therefore, it does not require to reproduce again all those facts, features, case law and submission. To say, the OP3 has same grounds and plea as taken by OP2 in his written statement.
4.3 The written statement of OP2 & OP3 are accompanied with record of discharge summary, operation note, record of department of emergency, acute care medicine, initial assessment, doctor’s progress notes, vital signs, medication charts, face sheets, second discharge summary, department of emergency, doctor’s progress notes, medication chart, vital sign flow sheet.
4.3 (Case of OP4)-The written statement of OP4 is admixture of various facts and figures as if deriving the reasons from its own case as well as by taking the facts mentioned by other OPs. Briefly, the complaint suffers from mis-joinder of the parties, it is unknown as to how OP4 has been arrayed in the complaint. The OP4 had issued policy no. 041281/46/12/35/00000761 in favour of Dr. Rakesh Mahajan/OP2 for indemnity of Rs. 10 lakhs during the policy period of 21.07.2012 to 20.08.2013 for one year for one accident. The OP2 is the treating doctor of his patient, however, what treatment was given to the patient was never informed to OP4 nor copy of the reply was provided to the complaint. The policy was issued in favour of OP2 as the policy was designed to provide insurance protection to the doctors/ hospitals against their legal liability and to pay damages arising out of negligence in the performance of their professional duties. Accordingly, as per the terms and conditions of the policy, the company is liable to reimburse the amount to the extent of sum insured to the insured doctor(s), only if the cause of action arise during the policy of insurance and all the terms and conditions of the policy are duly fulfilled by the insured.
There is no dispute arisen between the insured/OP2 and the insurer/OP4, besides there are no allegation in the complaint against OP4 till date, therefore, the complaint is without cause of action against OP4. Otherwise, if any liability is fastened against the insured/OP2, the insured can claim his liability from the insurer/OP4. Thus, OP4 is not involved in the consumer dispute. It is not a proper party. The paragraph-10 of the preliminary objections reproduces terms and conditions of the policy vis-à-vis OP4 also opines that other OPs are not guilty of deficiency of services or medical negligence. The OP4 also refers (i) Martin F. D’souza Vs. Mohd. Ishfaq civil appeal no. 3541/2002 (ii) Volume-3 (2004) SLT 161 regarding terms of damages in its support. The OP4 denies other allegations or facts for want of its knowledge in respect of admission of complainant for surgery or her discharge either on first episode or on second episode. There is a request to dismiss the complaint.
5.1 (Replication of complainant) –The complainant filed separate replication to the written statement of OP1, OP2 & OP3, however, in brief the complainant denies all the fact and stand taken by OPs vis-à-vis the complainant reaffirms her case in the replication.
5.2. The complainant also filed separate replication to the written statement of OP4, she denies the allegations of OP4 that complaint was filed to extort the money or to harass and blackmail to OP4, the OP4 was impleaded on the application of OP2 and not at the instance of complainant. The complaint is reaffirmed as correct.
6.1. (Evidence)- In order to establish the case against OPs, the complainant Smt Shashi Balal (since she was alive at that time) and her husband/LR Shri Sat Sagar Gutpta led evidence by filing their detailed affidavits with the support of documents filed with the complaint. Their affidavits are on the pattern of complaint.
6.2. The OP1-Hospital led its evidence by filing affidavit of its authorised representative Dr Sanjay Mehta, Medical superintendent (who also authored the written statement for and on behalf of OP1); affidavit is replica of written statement.
6.3. The treating doctors namely OP2- Dr. Rakesh Mahajan, MS, DNB, MCH (Ortho) and OP3-Dr. Ishwar Bohra [of OP1-Hospital] filed their separate affidavits of evidence, by narrating the facts and circumstances fortified with the documentary record, including internal progress notes, which were part of their written statements.
6.4. The OP4 - United India Insurance Co. Ltd (being Insurer of OP2) led its evidence by filing the affidavit of Shri Satish Jagga, Sr Divisional Manager.
6.5.1. By order dated 08.09.2014 the matter was referred to LNJP hospital for expert opinion and subsequently the expert opinion dated 18.11.2015 (by technical panel) was received on 10.12.2015 but it was confining to technical aspect and then the matter remained pending awaiting the administrative opinion, since the concerned Board has split the matter into technical opinion and administrative opinion. Finally, after various correspondences, it was 12.09.2023 a letter dated 06.09.2023 was received from LNJP hospital that the administrative report is not traceable.
6.5.2. In the technical report there is no conclusion of medical negligence but it was noted down by the Board as to what was hurry in performing the surgery, however, the opinion was expressed on the basis of documents of complaint, but no inquiry appears to have been conducted in this regard by the Medical Board.
7.1 (Final hearing) - The complainant filed written arguments followed by fresh written arguments based on reply and evidence besides interpretation of expert/medical opinion, followed by oral submissions by Shri Sagar Gupta, husband/LR of complainant. The written arguments are on the pattern of pleading and evidence, however, the complainant has also introduced a few new facts that the OPs have concealed and withheld x-ray record and label of implant used and there was no need of haste in the surgery since the complainant was patient of diabetes, hypertension besides a woman of 59 years.
7.2. The OP1 filed its written arguments followed by oral submission by Shri Jai Gupta, Advocate for OP1. The written arguments are blend of pleading and evidence.
7.3. The OP2 and OP3 also filed their joint written arguments followed by additional arguments, since complainant had filed fresh arguments, which opposed the case and submissions of complainant. Sh. Harshit Kiran, Advocate for OP2 and OP3 presented oral submission on behalf of OP2 and OP3. In the additional written arguments, the OP2 & OP3 have filed their certificate of diploma in orthopedics surgery to show that they were qualified doctors and they were possessing requisite qualification in order to meet the requirement, as there was no administrative report by the Medical Board.
7.4. Neither the OP4 filed its written arguments nor presented oral submissions.
8.1 (Findings)- The contentions of parties the sides are considered, keeping in view their respective case, evidence on record, statutory provisions of law, case law and precedent.
8.2. The plea of complainant is of medical negligence, want of care of patient, deficiency of services and providing of sub-stand implant against Hospital/OP1 and her treating doctors/OP2 & OP3. But OP1, OP2 and OP3 [i.e. OPs] refute such allegations of sub-standard implant, medical negligence, deficiency of services and for want of care on their part, on the basis of evidence and medical opinion in their favour.
8.3. Since one of factor to be determined 'whether or not there is medical negligence, it is appropriate at this stage to first refer a precedent on the point of medical negligence, test, guidelines and scale to be applied to determine it, ethics involved and so on. It is laid down in precedent 'Vinod Jain Vs Santokba Durlabhji Memorial Hospital AIR 2019 SC 1143 [paras, 8, 9 and 12; in which the previous precedent Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & ors AIR 2010 SC 1050 is also referred with its relevant paragraphs are Para 22 & 89] -
[Para 8] "22. Negligence. -Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such à person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient"
[para 9]. A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view (Bolam v. Friem Hospital Management Committee -1957 1WLR 582). In the same opinion, it was emphasised that the test of negligence cannot be the test of the man on the top of a Clapham omnibus. In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent, and it would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
A situation, thus, cannot be countenanced, which would be a dis-service to the community at large, by making doctors think more of their own safety than of the good of their patients.
[12]. In para 89 of the judgment in Kusum Sharma & Ors. the test had been laid down as under:
"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
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 standard so far 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 avail-able, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/ hospitals particularly private hospitals or clinics for extracting uncalled for compensation. The malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professional.
As certain tests, guidelines and rule have been laid down in precedents Vinod Jain Vs Santokba Durlabhji Memorial Hospital AIR 2019 SC 1143 [paras, 8 9 and 12] & Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & ors AIR 2010 SC 1050, therefore, from that point of view, duties are prescribed for the medical profession, they are (i) a duty of care "in deciding whether to undertake the case"; (ii) a duty of care in deciding "what treatment is to be given" and (iii) a duty of care "in administration of that treatment". On failure to observe them or any of them, it will be case of medical negligence. Therefore, it would be appropriate to take the features of this case one by one from that points of view of those tests namely (i) a duty of care in deciding whether to undertake the case; (ii) a duty of care in deciding what treatment is to be given and (iii) a duty of care in administration of that treatment.
9.1. Firstly, issue of duty of care in deciding whether to undertake the case? The first issue is whether the OPs had taken proper care to undertake the case of complainant. The case of parties and their documentary record have already been referred.
There are juxtaposition in the stand of parties to the complaint, as the complainant contends that she was suffering from hypertension and diabetes besides she was 59 years of age, she suffered fractured, however, the complainant ought not to have been put her to surgery on both the occasions. But on the other side, the case of OP1, OP2 & OP3 is that the complainant/patient was brought to the emergency, she was already suffering from Osteoporosis, diabetes and hypertension and implant was the appropriate treatment for the complainant and accordingly it was attended as per protocol. The OPs deny the allegations of medical negligence or deficiency of services.
9.2. There is no dispute that the complainant was brought in the emergency, she was having fracture shaft right femur. She was apparently asymptotic when she had injured herself after a twisting injury to the right leg, she had complaint and deformity over the right thigh, inability to bear the weight over the right leg till 30.10.2012. On second occasion there was episode of fall on ground on 29.11.2012 and she had sustained injury, shaft of femur with broken nail right side was discovered in the x-ray, the same were attended by the OP1 and its treating doctors. Therefore, the attending doctors/OP2 & OP3 of OP1 are qualified doctors and they are in the field of orthopedic, the complainant was diagnosed of the diseased properly and the same was attended by them. There is no negligence in respect of 'duty of care in deciding to undertake the case'. This clearly proves that OP1, OP2 and OP3 had undertaken the duty to entertain the case of complainant properly. The first component stand determined accordingly.
10.1 The second point is 'of duty of care in deciding what treatment is to be given to complainant' and the third component is of 'duty of care in administration of that treatment' to the patient. The facts and features are inter-related, therefore, both of them are taken together.
According to the complainant, she ought not to have been operated upon because of her previous co-morbidities but she was operated upon and the medical opinion is against the OPs. In the first episode there rod was inserted but complainant was continuously suffering from severe pain and the same was broken during walking and she suffered another fracture, which was again operated by the OPs which was not warranted the surgery. The OPs are negligent and they failed to perform their obligation required. But on the other side, the OP1, OP2 & OP3 deny all such allegations that the first surgery and the second surgery was warranted, on both the occasions the complainant was brought in the emergency. The first and the second surgery were uneventful. The complainant had got injured herself by falling and it was not natural breaking of implant during the walking but because of fault of complainant herself. The medical opinion does not specifically spell out that surgery was not to be performed, since all the reports, tests and circumstances were assessed and then it was attended, that too for the help and benefit of complainant. She was covering well after first surgery and the second episode was because of own fault of complainant, there is no role or fault of OPs to be blamed.
10.2 This rival contentions of parties are considered on this issue, in the light of their respective pleadings and documentary record. The documentary record has been proved by the parties, which includes investigation report, clinical reports, discharge summary issued by OP1 besides the expert opinion received. The following conclusions are drawn:-
(a) The complainant relies upon the technical medical opinion that the Medical Board could not decipher as to what was the hurry for conducting the surgery of complainant being patient in the age of 59 years, who is already suffering from hypertension and diabetes. Whereas, this opinion is not conclusive as in other component of the same report, the Medical Board opines that no medical negligence was discovered by the Board. The Medical Board had not conducted any inquiry to inquire about fact of so called hurry.
(b) The OPs case is that the complainant/patient was already suffering from osteoporosis and the insert of implant was the optimum solution, there is no contrary evidence by the complainant to his prove this aspect.
(c) On first occasion the complainant was admitted on 30.10.2012 and she was operated for fracture shaft right femur. It was successful surgery and there is no contrary evidence by the complainant. The complainant has not proved any medical record that after he discharged she was continuously in severe pain etc or other practitioners advised prescriptions.
(d) On second episode of 29.11.2012, the implant inserted was bent and complainant was to be operated again. The case of complainant is that she was walking and the implant broke down/bent. Whereas, as per the contemporary fact recorded in the discharge summary, she fallen on 29.11.2012 and sustained injury over right thigh and she was brought with that complain. To say, the plea taken in the complaint is contradictory to the medical history stated to the hospital. It does not spell out negligence or medical negligence in treating the complainant, since she was already operated upon on first occasion and the circumstances were warranting for surgery on the second episode.
(e) The opinion rendered by Medical Board does not suggest of medical negligence on any count in respect of performing the surgery, treatment or other managements.
Thus, there is nothing emerging against OPs in the record in performing the second duty and third duty. It cannot be inferred as medical negligence. There is no evidence of want of taking care against the OPs or of deficiency of services. There is no other contrary evidence by the complainant to disprove it.
11.1 There is also dispute, that there was use of implant of sub-standard quality, its label and x-ray sheet were withheld by the OPs, which has been emphasized at the stage of final argument, since had there been implant of good quality, it would not have broken or bent. But on the other side, the OP1, OP2 & OP3 deny all such allegations that implant of sub-standard quality was used. The complainant had fallen or there was twist to bear the weight and the episode happened. The complainant could not prove that the plant was bent during walking.
11.2. There are two limbs of this contention. So far labels of implant and x-ray films are concerned, it was never requested by the complainant throughout in the trial or otherwise but in the final additional written arguments. Therefore, at this stage the complainant through her LRs cannot derive any benefit.
The complainant also took a plea in the complaint and evidence that she had taken advices of other medical practitioner that the implant used was of sub-standard quality and there is medial negligence, however, neither any evidence nor such opinion was proved on behalf of complainant nor as to what was medical negligence nor the medical Board opinion opined so that the implant used was of sub-standard quality. Therefore, the complainant could not prove that the implant was of sub-standard quality or because of that reasons it was broken or bent.
12. So, the complainant could not prove medical negligence or circumstances of medical negligence against OPs. It also stand established that OPs were not negligent in performing its duty of care in undertaking the case of patient, or deciding for treatment to be given and duty of care in administration of that treatment'. There is also no roof of putting implant of sub-standard quality. The complainant also could not prove that implant was broken/bent during walking but the discharge summary proves that she had fallen and then implant was bent.
13.1 In view of the above conclusions, it is held that for want of establishing the case of medical negligence against OP1, OP2 and OP3, or of deficiency of services or of putting of implant of sub-standard quality. The complaint is dismissed. No order as to cost.
13.2. So far the OP4 is concerned; there is no allegation or cause of action or relief claimed against OP4, who is insurer of OP2 to indemnify for medical professional risks. Under these circumstances the complaint against OP4 is dismissed. Thus, in view these salient features qua OP4 not only the complaint is dismissed against OP4 but its name stand struck-off from the array of parties.
14. Announced on this 3rd day of June 2024 [ज्येष्ठ 13, साका 1946].. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
15. (Administrative note) - It is relevant to mention that this case was instituted in the year 2013, it was assigned number CC-75 but in the system it was entered as CC 75/2012, which has been continuing throughout. It was discovered at the time of final hearing, but now system is not accepting other figure than CC-75/2012. Thus, the case is disposed off under the same number CC-75/2012, all previous proceedings are accessible on browsing this number. That is why, in the footer, the number is being mentioned as CC-2012 (2013). it is so mentioned.
[Rashmi Bansal]
Member (Female)
[Inder Jeet Singh]
President
[ijs63]
